Consultation on the proposed regulation under the Pesticides Act began with a 45-day posting on the Environmental Registry on November 7, 2008. The comment period closed December 22, 2008, and 3989 submissions were received. Comments were received from a range of sectors, including the public. These submissions were considered during the final development of the General Regulation under the Pesticides Act.
During the posting period, the Ministry of the Environment (MOE) held three (3) stakeholder information sessions in Toronto (November 14, 21 & 25, 2008) to introduce the proposed regulation and to answer technical and sector-specific questions. These sessions were attended by more than 130 representatives from environmental organizations, manufacturers, retailers, the lawn-care industry, the golf industry, municipalities, and utilities operators. Representatives from a number of provincial ministries (e.g. OMAFRA, MNR, MMAH, MTO) were also invited to attend these sessions.
Key concerns that were raised consistently across stakeholder groups included the following:
- Transparent criteria based on scientific and technical information for the pesticide classification process;
- Flexibility regarding the public inaccessibility requirements for restricted sale products;
- Effective means of defining an agricultural operation for the purposes of the exception;
- The breadth of the public health or safety exception;
- A transition period for the Integrated Pest Management certification requirements that apply to specialty turf and public works;
- Clarifying the natural resources exception;
- Clarifying the exception affecting trees; and
- A phase-in period for prohibitions on the use of cosmetic pesticides for the commercial landscape sector
The proposed regulation was revised based on feedback received through Environmental Registry submissions, stakeholder sessions and consultations with other provincial ministries to address the following concerns:
Transparent criteria based on scientific and technical information for the pesticide classification process:
Stakeholders from the manufacturing industry, as well as the agricultural sector, retailers, lawn-care sector and associations, and environmental organizations all objected to the limited classification framework outlined in the proposed regulation. The chief complaint was the lack of apparent science criteria being used for classifications and prohibitions of domestic and cosmetic pesticides. Stakeholders stated that a lack of predictable and transparent science criteria would discourage research and innovation of new lower risk pesticides.
- The specific criteria based on scientific and technical information for each Class of pesticides is provided in a companion reference: Pesticide Classification Guideline for Ontario. Pesticides that are biopesticides or lower risk will be allowed to be used by licensed exterminators or homeowners for cosmetic purposes. The criteria for identifying biopesticides or lower risk pesticides is based on Health Canada’s Pest Management Regulatory Agency (PMRA) criteria for designating bio-pesticides and its proposed criteria for low risk pesticides. This approach served to meet the request for more transparent and clear classification criteria to encourage innovation while still preserving the MOE’s ability to update and amend the pesticide classification guidance document as necessary.
Flexibility regarding the public inaccessibility requirements for restricted sale products:
Retailers identified that the installation of barriers (e.g. secure cages) to prevent self serve options for Class 7 products would be impossible to implement in time for spring 2009. Additionally, pesticide manufacturers stated that a number of retailers who carried their products in a seasonal fashion (i.e. grocery stores with a seasonal garden centre) would refuse to install barriers and would simply stop carrying any restricted sale products. The sales restriction on Class 7, dual-use products, would in many cases result in a de facto ban that would inhibit consumers’ ability to access products with allowable uses.
- In response to these concerns, and in order to maintain a spring 2009 implementation date, the ‘inaccessible’ requirement is being phased-in over a two (2) year transition period along with other requirements for the continued sale of Class 7 products. Beginning April 22, 2009, vendors are responsible for ensuring that information regarding the legal uses of a Class 7 product is given to every purchaser or transferee of a Class 7 pesticide. Beginning January 1, 2010, unlicensed vendors must obtain a limited vendor licence to sell Class 7 products. Licensed vendors will have until April 22, 2011 to modify their operations so that purchasers do not have ready access to Class 7 products.
Effective means of defining an agricultural operation for the purposes of the exception:
Agricultural stakeholders and the Ministry of Agriculture, Food and Rural Affairs were concerned that the requirement for the use of a pesticide ‘on farm land’, as defined under the Assessment Act, would effectively prohibit agriculture uses on many farm operations whose properties are not designated as “farm land” but as another land class. The proposed General Regulation had not been updated to accurately reflect changes made to land designations under the Assessment Act. It was also noted that a requirement of a farm registration number would exclude any farmers working on land that is assessed as commercial, residential, etc. under the Assessment Act or any farmers earning less than $7,000 of income per year.
- The farm land designation requirement was eliminated. Provisions were added to allow farmers to purchase certain classes of pesticides with a Farm Business Registration Number or by signing a self declaration form to ensure farmers have access to the pesticides they need. In addition, the definition of agriculture has been aligned to complement with those used in the Nutrient Management Act and the Farming and Food Production Protection Act.
The breadth of the public health or safety exception:
Public works operators were concerned that the requirement for pesticide use to prevent “significant” damage to public works structures and infrastructure was too restrictive and inhibited proactive maintenance. Also, stakeholders wanted to ensure that they would be able to use pesticides to maintain a security perimeter such as around nuclear operations. Some stakeholders were concerned that the definition of ‘highway’ contained in the exception for public works could be manipulated to apply to residential streets and sidewalks.
- The qualifier “significant” was removed from the public works component of the public health or safety exception to allow for use of pesticides for preventative measures. The exception was clarified to allow pesticide uses for the purposes of maintaining emergency access to and security of a public work. The exception was also clarified to prohibit pesticide use on a portion of a highway to which pedestrians have access on a regular basis or where the public is invited to stop, including rest areas or picnic areas.
Transition period for the Integrated Pest Management certification requirements that apply to specialty turf and public works:
If there was no integrated pest management body approved by the Director at the time of implementation of the General Regulation, exceptions for pesticide use for either the specialty turf or the public works component of the promotion of public health or safety would not be permitted. Exceptions for both specialty turf and public works would be inoperable until such bodies were created and approved.
- IPM certification requirements for public works and specialty turf operators are being phased-in over a one (1) year transition period and comes into effect on the later of April 22, 2010 and the day the regulation is filed. This change allows sufficient time for the approval of certification bodies while excepting pesticides uses in these sectors.
Clarifying the natural resources exception:
Many comments regarding the confusing nature of the natural resources exception were submitted. It was unclear whether use would be excepted as long as it was performed in the same manner as by Ministry of Natural Resources (MNR) employees, or whether pesticides must only be applied by MNR employees. Stakeholders wanted to know how pesticides used for the purposes of maintaining natural resources would be identified and approved.
- The exception now makes it clear that staff of the MNR, Conservation Authorities, or organizations operating within a written agreement with that Ministry, may use prohibited pesticides to manage natural resources projects. Additionally, there are options for pesticide use that allows landowners to manage natural resources if they obtain a written opinion from an appropriate Director of the MNR.
Clarifying the exception affecting trees:
Agricultural stakeholders and woodlot operators were uncertain as to which, if any, exception applied to their use of pesticides to maintain a tree stand. Arboriculture stakeholders also expressed concern that the physical maturity requirements for trees in order to use pesticides to maintain the health of such trees were too restrictive.
- The definition of a ‘forest’ was added to clarify that the forestry exception covered any activities related to the maintenance of a treed area greater than a hectare. The new definition of an agricultural operation included use of pesticides on any woodlots that were associated with a farmer’s operation. Any use of pesticides on a treed area that is less than one hectare and is not an agricultural operation will be required to meet the conditions of the arboriculture exception. The minimum height and stem diameter requirements for defining trees were removed from the arboriculture exception.
The General Regulation was not changed to include a phase-in period for prohibitions on the use of cosmetic pesticides for the commercial lawn-care and landscape sector.
Landscape stakeholders were concerned that the prohibitions were not being phased-in to allow the industry sufficient time to make the transition to the use of greener alternatives before the General Regulation is implemented.
- The prohibitions on cosmetic uses are effective as of April 22, 2009 to reduce the potential risk to human health. The landscape industry will benefit from one set of rules for the whole province rather than a patchwork of municipal pesticides by-laws.