From Eco Issues

In August 2005, the Ministry of the Environment finalized significant reforms to its regulatory framework for industrial air emissions. Since the mid-1970s, facilities with air emissions have been required to comply with Regulation 346 (RRO 1990) under the Environmental Protection Act (EPA). Regulation 346 required facility owners to assess (for each contaminant) how diluted the emissions from their facilities will be once they reach either an off-site location or the nearest human receptor, using a mathematical model called an air dispersion model. Facility owners then compare the modelled concentration against the list of air standards in the regulation and guidelines.

This regulatory framework for industrial air emissions had many weaknesses. Chiefly, the framework has relied on outdated air standards and on seriously outdated dispersion models that were poor assessments of how emissions behave in real life situations. Depending on conditions, these old models could under-predict concentrations of contaminants by 2 to 20 times. Reliance on such models meant that the environment was not always adequately protected. Another weakness is that facility approvals have not been subject to automatic periodic reviews or updates, allowing some older facilities to operate under very outdated requirements.

Contents 1 Key features of the new rules 1.1 New “effects-based” air standards 1.2 New dispersion models 1.3 Emission Summaries will be required more widely 1.4 How the alternative standard option works 1.5 Which emissions require “timely action”? 2 Public participation and the EBR process 3 Implications of the decision 3.1 Some key air standards still missing 3.2 Improvements will be slow in coming 3.3 Regulatory capacity at MOE 4 Public consultation implications 5 ECO Comment

Key features of the new rules

MOE has struggled since 1987 to update the rules. The new approach, finalized as O.Reg. 419/05, features some marked improvements. They include a move to “effects- based” air standards, some of which are up to 100 times more stringent than previous standards; more accurate dispersion models that can more realistically assess the con- centrations of contaminants under a range of conditions; and more detailed emissions reporting to demonstrate compliance.

Regulation 346 was revoked and replaced with Regulation 419. The old provisions will gradually be phased out, while the new, tougher regulatory approach will be phased in over a decade or more. Facilities not able to achieve compliance within the phase-in period can apply for case-by-case regulatory relief, termed “site-specific alternative standards.”

New “effects-based” air standards

MOE’s new approach relies on “effects-based” air standards, which are developed by weighing only the health and environmental effects of the pollutant in question; economic or technical difficulties of reducing emissions are not considered until a later “risk management” phase, carried out case-by-case, if individual facilities find they cannot meet the standards by the specified date. In August 2005, MOE also introduced 40 new or updated air standards into the regulation.

New dispersion models

Dispersion models are used to assess how a contaminant is diluted as it moves through the atmosphere. MOE will phase out a set of outdated dispersion models and replace them with more accurate dispersion models developed by the U.S. Environmental Protection Agency.

Emission Summaries will be required more widely

Since 1998, MOE has required facilities to prepare Emission Summary and Dispersion Modelling (ESDM) reports when applying for approvals for air emissions. Now the requirement to prepare an ESDM report will gradually be broadened to apply to more types of existing facilities, and the rules on how to prepare an ESDM report have become more detailed and more prescriptive.

How the alternative standard option works

MOE has invested a great deal of planning and consultation effort in the design of the alternative standard process. This process is available if a facility owner discovers,after applying the new rules, that the facility will be out of compliance for one or more contaminants. In such a case, as long as the exceedences are not greater than a defined “Upper Risk Threshold,” the facility can apply for an alternative standard, but must meet detailed and prescriptive requirements.

Which emissions require “timely action”?

Regardless of the five-to-15-year phase-in provisions of these rules, MOE can require some facilities to take “timely action.” For example, if an exceedence of an Upper Risk Threshold is suspected through either monitoring or modelling, then MOE must be immediately notified in writing. This approach is softer than MOE’s earlier proposals, which had envisaged that facilities exceeding Upper Risk Thresholds would have to submit an action plan “forthwith,” and might have to cut back production. MOE also has some discretion to speed up, on a case-by-case basis, the application of new models, new air standards and ESDM reporting requirements to individual facilities.

Public participation and the EBR process

MOE carried out exemplary public consultation over the multi-year course of this regulatory overhaul, soliciting comments on detailed discussion documents through numerous public information sessions, through the Registry, and through focused meetings with key stakeholders. MOE’s internal ruminations from 2001-2004 were also supported by a pilot project involving five large industrial facilities, the Ministry of Health and Long Term Care, public health groups, and one environmental organization. Project members met regularly over one year, and used data from the individual facilities to test how the new rules might apply. The pilot project evidently helped the ministry resolve a number of policy and logistical questions, and some commenters have since asked that the results of the pilot project be made public.

The ministry received approximately 40 written comments responding to each of three policy proposals released in June 2004. Industries, other levels of government, and environmental and public health organizations submitted the bulk of the comments, although some individuals also contributed. Comments showed that MOE’s overall approach was well understood, despite its complexity, and was broadly supported. The ministry’s decision notices provided useful, succinct summaries of comments and changes made. Notably, MOE’s changes included: providing additional years to the phase-in periods; doubling certain notice periods from 15 to 30 days; and rethinking odour management in response to industry concerns. MOE also agreed to ease certain standards, based on scientific arguments – e.g., isocyanates – and softened its abatement approach for facilities emitting contaminants suspected to be above an Upper Risk Threshold. MOE decided not to incorporate background concentrations of contaminants from other sources or for persistent or bioaccumulative contaminants at this time, and also decided against providing intervenor funding to public health units. MOE also decided against tightening the Upper Risk Threshold for carcinogens. The ministry did commit, however, to developing a protocol between MOE and public health units to allow information sharing.

Implications of the decision

Over the next five to 15 years, Ontario facilities will need to compile more accurate summaries of their emissions and demonstrate they meet tougher limits for a number of air contaminants. Where facilities cannot show compliance, they will have to use pollution prevention approaches, install pollution controls or let their neighbours know that they plan to apply for an alternative standard. Through O.Reg. 419/05, MOE has been able to achieve some of the reforms that were originally proposed under the 1987 Clean Air Program, such as the introduction of updated dispersion modelling; the orderly phasing in of tighter standards for existing facilities; and public participation in standard-setting and certificate of approval processes. Overall, Ontarians can expect to see individual facilities gradually improve emissions between 2010 and 2020. Some facilities might shut down rather than upgrade.

Some key air standards still missing

As of November 2005, MOE had not yet finalized air standards for a number of contaminants that the ministry calls “Group 1 - high priority candidates,” based in part on toxicities and quantities emitted. These substances include: nickel, chromium, cadmium, arsenic, benzene, copper, vanadium, zinc, mercury, dioxins and furans, among others. The ministry had originally planned to complete standards for these substances by 1996/1997. Technical background documents released by MOE in 2004 underscore the need to give these substances prompt attention.

Nickel is an illustrative case in point. Over 300 tonnes of nickel were emitted into Ontario air in the year 2000, with contributions from 146 facilities. Several nickel compounds are known to give rise to respiratory cancers. Ontario’s existing air standard for nickel, which is based on damage to vegetation, dates back to 1974. It is acknowledged to be out of date, and may be several orders of magnitude too lenient.

Improvements will be slow in coming

In response to concerns from industry that the proposed phase-in periods were too short, MOE extended the introduction of some revised air standards from three to five years. The deadline to apply for an alternative standard was also extended. Many industrial sectors (in practice, representing most small to medium-sized facilities) will not need to use the newer, more accurate dispersion models until 2020. Beyond the regulated phase-in dates, facilities that are issued an alternative standard can have extensions of up to five to 10 years in extenuating circumstances. In such cases, local residents will at least be made aware of the emissions, and will have a chance to comment, which is an improvement over current MOE practices. There is another reason to expect slow progress. A ministry auditing program has revealed that many facilities are not meeting even the existing more lenient air standards or guidelines, even when the outdated dispersion models are used, and suggests that non-compliance with existing limits is widespread. Moreover, the ministry’s efforts to bring such facilities into compliance can take many years.

Regulatory capacity at MOE

The success of this regulatory reform will depend on a significant beefing up of MOE’s inspection, compliance and enforcement capacity – not only to achieve the intended environmental benefits, but also to provide a level playing field for law-abiding facilities. The ministry’s current resources allow inspections of only about 1-2 per cent of facilities with any kind (air, waste, water, etc.) of environmental approvals per year, and some facilities have never had an inspector on-site. Moreover, it is estimated that up to 40 per cent of facilities may be operating without required permits.

MOE’s capacity to process approvals may also be challenged by this initiative, once submissions begin for alternative standards. The ministry already receives about 8,000 applications for certificates of approval of all types each year, and the backlog is growing by about 1,000 a year. Industry stakeholders have longstanding concerns about the delays in processing of such approvals. But MOE is not planning to add new resources, only to re-align some existing resources.

Another point of caution is that the ministry is working to streamline its approvals processes at the same time as it is phasing in the new air emissions regulation. The ministry has in recent years been encouraging a shift to facility-wide Cs of A that cover all emission points, equipment and processes. Other changes, still on the drawing board, contemplate a shift to third-party or non-ministry certification and inspection of lower-risk facilities, or sector-based regulatory approaches for small and medium- sized facilities. The ministry will need to explain to the public how these changes will dovetail with O.Reg. 419/05, and how they will affect the environment, as well as public consultation and leave to appeal rights under the EBR.

Public consultation implications

MOE’s chosen approach strengthens transparency and public consultation opportunities in several ways. The public can comment on the development of new province-wide air standards, with the support of detailed background technical information. Members of the public will also be able to access the executive summaries of ESDM reports for all facilities required to prepare them. And in cases where facilities are requesting alternative standards, there will have to be up-front consultation (including a meeting) with local residents. A major caveat, however, is that these consultation opportunities will require significant additional expertise and response capacity from local residents, environmental groups and local public health units. The option of hiring expertise to interpret the highly technical information is largely out of the question for such groups, and several commenters urged that they be provided with resources or intervenor funding to allow them to participate effectively. The ministry responded that it lacked the means to provide such funding.

What’s missing from the new rules for air emissions?

No control over annual loadings of contaminants For some types of persistent contaminants that accumulate in the environment, such as lead or mercury or certain organic toxic substances, the annual load to the environment is critical. However, the ministry is not directly controlling annual loadings of contaminants – it is only setting limits on concentrations, measured over minutes or hours. This can be adequate for substances that break down quickly in the air, but it doesn’t address substances that can build up to toxic concentrations over years or decades in local soils or plant and animal life. Doesn’t address mixes of contaminants The new set of rules does not address the impacts that mixes of various contaminants may have on the environment or health. Limited control over local hot spots The new rules have only a limited ability to deal with local “hot spots,” such as neighbourhoods where several types of heavy industry are clustered together. MOE acknowledges that more work is required in these areas. The new rules do allow MOE to treat adjacent properties as though they are single properties for the purposes of preparing ESDM reports, but it is too soon to say if this approach will work. Effectiveness monitoring not planned The Minister of the Environment has said that “these changes will mean cleaner, healthier air, healthier communities and healthier Ontarians all across the province.” But the ministry has not laid out plans to track, quantify or even estimate the hoped-for reductions in loadings of air pollutants. Environmental groups also asked for periodic audits and progress reports on how well facilities are complying with the new rules, but the ministry has not made any commitments to do this.

ECO Comment

MOE has embarked on an ambitious overhaul of its approach to control industrial air emissions. There was consensus that the old system under Regulation 346 needed reform. The groundwork for this overhaul has taken many years to prepare, and has benefitted from strong public consultation and careful listening on the part of the ministry. The new framework is built on some laudable principles, especially the intention to base air standards on environment and health effects, rather than socio- economic factors. As a result, MOE should be able to tighten up more air standards, with more speed. The new framework is also strengthened by transparency features, such as the ability of the public to access the Executive Summaries of ESDM reports, and the requirement to consult neighbours when facilities seek alternative site-specific standards.

It would be premature, though, to pronounce this reform to be a success, since the roll-out of the reforms is only just beginning, and the capacity of the ministry to manage the implementation phase is uncertain. MOE’s track record on nudging problem air emission sources into compliance has been weak under the old rules. Under the new regulatory framework, thousands of facilities across many industry sectors are expected to examine their own emissions profiles and work toward reductions, supposedly under the watchful eye of the ministry. To provide a fair and level playing field, and, of course, to harvest the intended environmental gains, MOE will need to demonstrate a strong presence in approvals, inspections, abatement and enforcement operations. Above all, the ministry needs to move swiftly on updating its air standards, since they are key triggers to improve emissions. MOE had planned to set tougher standards 10 years ago for a special group of “high priority” contaminants, but this remains a work in progress. MOE should get back on track by publishing a revised list and schedule for substances needing new standards.

Local public health agencies and public interest groups have noted that they will find it challenging to engage in the expected level of site-specific public consultations on highly technical matters. The ministry should find ways for such agencies and groups to access technical expertise, and should consider the option of participant funding. MOE has acknowledged that O.Reg. 419/05 does not adequately address background concentrations, cumulative or synergistic effects, nor does it address persistent or bioaccumulative contaminants. These are thorny policy issues as well as complex science challenges, but they cannot be ignored if the ministry’s goal is truly as stated, “cleaner, healthier air, healthier communities and healthier Ontarians.” A number of commenters, including Environment Canada, have noted that MOE will never be able to assess or control cumulative loadings effectively until the ministry replaces the point of impingement approach – i.e., relying on concentration estimates at a facility’s property line.

Performance standards for specific sectors or specific facilities may provide a way forward on this issue. For example, MOE already applies sector- specific emission control requirements to municipal waste incinerators, through Guideline A-7. This guideline sets emission limits measured at the stack (not at the property line) for certain persistent contaminants like cadmium, lead and mercury, and also requires that stack emissions be tested annually. With good data on stack concentrations, annual loadings for such contaminants can be calculated. Environment Canada urged the ministry to develop more sector or facility-specific performance standards, to set emission limits on sources, and to factor in background concentrations in modelling. This seems good advice. Finally, to assess the effectiveness of its regulatory reforms over time, MOE should track trends and quantify changes in loadings and ecosystem accumulations of air-borne toxic contaminants. The ministry should also be able to issue periodic progress reports on the implementation of O.Reg. 419/05 and related changes, including the extent of compliance with the new regulatory structure.

(For a detailed review of this issue, see 2005 Decision on Updating Ontario’s Regulatory Framework for Local Air Quality).

Recommendation 8: The ECO recommends that MOE support the roll-out of Regulation 419/05 by strengthening its inspection, compliance and enforcement capacity, and by monitoring and reporting on the effectiveness of these reforms over time.

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This is an article from the 2005/06 Annual Report to the Legislature from the Environmental Commissioner of Ontario. Table of Contents Information on the official document and its release.

Citing This Article:
Environmental Commissioner of Ontario. 2006. "Updating Ontario's Regulatory Framework for Local Air Quality." Neglecting our Obligations, ECO Annual Report, 2005-06. Toronto: The Queen's Printer for Ontario. 89-96.