While the Toxics Reduction Act, 2009 is not yet prescribed under the EBR,  the Ministry of the Environment (Ministry) would like to provide general notice to the public that the Ministry is proposing a draft regulation be made under the Toxics Reduction Act, 2009.  The public is invited to review and comment on the proposed regulation. 

The purposes of the Toxics Reduction Act, 2009 are to prevent pollution and protect human health and the environment by reducing the use and creation of toxic substances, and to inform Ontarians about toxic substances.

The Act applies to all Ontario facilities where, in accordance with the regulations, a toxic substance appearing on a prescribed list of substances is used or created, the amount of the prescribed toxic substance used or created exceeds a specified threshold, more than a prescribed minimum number of persons is employed, and the facility belongs to a prescribed sector.

The Act requires facilities to:

• Track and quantify the toxic substances used or created at the facility;
• Prepare a toxic substance reduction plan (plan) for each toxic substance used or created at the facility and have the plan certified both by the highest ranking employee at the facility with management responsibilities and by a proposed accredited toxics reduction planner;
• Prepare summaries of their plans and make them available to the public in accordance with regulations;
• Report to the Ministry on their progress in reducing toxic substances and make certain information available to the public in accordance with regulations; and,
• Report to the Ministry on any substances of concern used or created at the facility.

The proposed regulation outlines the proposed content of the regulation and builds on the approach consulted on in the Discussion Paper, “Creating Ontario’s Toxics Reduction Strategy” (August, 2008), and on input received from stakeholders, the Toxics Reduction Scientific Expert Panel, and the public through consultations in the development of the Act.

Toxic Substances under the Toxics Reduction Act, 2009
The proposed regulation designates toxic substances as those included in Schedule 1 of the National Pollutant Release Inventory Notice (the NPRI Notice) given under subsection 46(1) of the Canadian Environmental Protection Act, 1999, in the form specified in Schedule 1 of the NPRI Notice (includes Parts 1 to 5), and acetone (adopted from Ontario Regulation 127/01 made under the Environmental Protection Act). It is also proposed that the prescribed list of toxic substances would, if amended, include any other toxic substance the Ministry prescribes from time to time.

Table A of the proposed regulation lists the 47 priority substances and substance groups for which the regulatory requirements would begin first  (i.e., Phase I) followed by the remaining substances in Schedule 1 of the NPRI notice (i.e., Phase II).  Please note that two additional substances have been proposed to be added to Table A: antimony (and its compounds) and acetaldehyde, those originally listed in the Backgrounder, dated June 3rd 2009, as part of the Phase II toxic substance list.

The Ministry would inform stakeholders and the public of any changes to the list of toxic substances through the Environmental Registry.

Class of Facilities
The proposed regulation prescribes the class of facilities (i.e., sectors) that would be subject to the requirements of the Act and regulation to include those at which (i) manufacturing takes place, including a facility identified by a NAICS code commencing with the digits “31”, “32”, or “33” and (ii) mineral processing activities involving the use of chemicals to extract, refine, or concentrate an ore takes place.

Thresholds
The proposed regulation prescribes the toxic substance and employee thresholds. The proposed thresholds are the same as the NPRI thresholds. For acetone, as prescribed by Ontario Regulation 127/01 the proposed thresholds are 3 tonnes and 20 000 employee hours worked (approximately 10 full-time employee equivalents).

The Ministry would inform stakeholders and the public of any changes made to the thresholds through the Environmental Registry.

Timelines and Due Dates 
Facilities, in the regulated class, that use or create a substance listed in Table A of the proposed regulation and meet the thresholds described above, would start tracking and quantifying the toxic substance for each process, in accordance with section 9 of the Act, as of January 1, 2010; provide their first report to the Ministry, for the previous calendar year, under section 10 of the Act by June 1, 2011; complete a plan and provide a summary of their first toxic substance reduction plan, under section 8 of the Act to the public and the Ministry, by December 31, 2011.

Facilities that use or create a toxic substance listed in the NPRI Notice, other than a substance listed in Table A, would start tracking and quantifying the toxic substance as of January 1, 2012; provide their first report to the Ministry, for the previous calendar year by June 1, 2013; and complete a plan and provide a summary of their toxic substance reduction plan to the public and the Ministry by December 31, 2013.

Toxic Substance Accounting
The proposed regulation includes the requirement for facilities to identify and appropriately describe the process(es) that involve a toxic substance at every stage of the manufacturing or mineral processing operation. It is also proposed that tracking and quantification of each toxic substance are undertaken using best available methods so that the facility records the amount of substance that is used, created, transformed, destroyed, contained in product that leaves the facility, released into air, land or water, is disposed of, and transferred. Some of this information would also be included in the proposed contents of the Reports on Toxic Substance Reduction Plans and would inform the contents of the plan.

The proposed regulation includes provisions for exempting the owner and operator from toxic substance accounting if a facility falls below the thresholds.

Toxic Substance Reduction Plans
While section 4 of the Act describes some of the content elements of the toxic substance reduction plans, the proposed regulation provides additional requirements and clarity about the requirements. It is proposed that process flow diagrams that depict each process at every stage of the manufacturing operation at the facility be included in the plan as well as the methods that were used for the tracking and quantification. In addition, the proposed regulation also prescribes in general terms how facilities would identify and describe options for toxics reduction and the way in which facilities would evaluate the options to determine technical and economic feasibility. Facilities would not be expected to identify and describe options that are in conflict with another law or those that would have a greater negative impact to human health and the environment. Finally, the proposed regulation also requires that basic facility information be provided and provides details around the certification of the highest ranking employee.

At this time, the details of the certification requirements for the toxics reduction planner would be proposed in a later regulation to be posted in 2010.

Summaries of Toxic Substance Reduction Plans
Plan summaries would be submitted to the Ministry on the dates by which the plans are to be prepared and reviewed and would be available to the public in their entirety. The proposed regulation includes additional requirements such as, basic facility information and the option(s) that would be implemented, if applicable.

Review of the Toxic Substance Reduction Plans
The proposed regulation generally provides that plans would be reviewed in 2018 and every 5 years thereafter and following a significant process change at the facility. Facilities would be required to review their plans in their entirety and update them in light of better available methods and/or new options (e.g. green chemistry solutions, new technologies). It is proposed that the highest ranking employee would be required to certify the new version of the plan.

At this time, the details of the certification requirements for the toxics reduction planner would be proposed in a later regulation to be posted in 2010.

Reports on Toxic Substance Reduction Plans
The proposed regulation requires reports to be prepared and submitted to the Ministry annually. Facilities would report the amount used, created, contained in product and the amount released, disposed of and transferred in the categories required by NPRI on a facility-wide basis. Additionally, a comparison would be required between the current and previous reporting periods stating any changes and an explanation for changes. This report would also indicate any steps that have been taken to implement options if any were indicated in the plan, or if none were implemented, the rationale.

The proposed regulation includes provisions for exempting the owner and operator from having to report on toxic substance reduction plans if a facility falls below the thresholds. 

Information Made Available to the Public
It is proposed in regulation that basic facility information, the amount used, created and contained in product in ranges and the amount released, disposed of and transferred in precise quantities would be reported to the public. Additionally, a comparison between the current and previous reporting periods stating any changes and a summary of the explanation for the changes would also be reported to the public.

Miscellaneous
There are several additional administrative rules that the proposed regulation addresses. The first one is that if a facility that no longer meets the class of facilities that is prescribed in regulation, permanently ceases to use and create the substance in all processes at the facility, or has been below the thresholds (the amount of toxic substance or employees) for three consecutive years beginning in 2015, the owner or operator may provide a termination notice. This termination notice would exempt the facility from being captured in the program and lasts as long as the facility does not meet the criteria under the Act and the regulation for the toxic substance.

The proposed regulation also includes other administrative rules such as records retention, notification of errors, and reporting in units of measurement.

It is also the intention of the regulation to require the owner and operator of the facility to submit reports on toxic substance reduction plans and summary of the plans to the Ministry through an information technology system and in a form specified by the Director, including in an electronic format.

The Ministry is soliciting comments from Ontarians to ensure their questions and opinions are considered.

Comments are to be received by November 2, 2009. Please mail or fax your comments to the individual listed as the Contact for this notice. You may also email your comments to ana.tinta@ontario.ca.

All comments received by November 2, 2009 will be considered as part of the decision-making process by the Ministry.  All comments and submissions received become part of the public record.

The Ministry will defer the proclamation of the sections in the Toxics Reduction Act, 2009 related to:

• Accredited Toxics Reduction Planners – Section 4(3), 4 (4) of the Act
• Substances of Concern – Section 11 of the Act
• Administrative Penalties  – Section 30 of the Act

It is proposed that regulations will be developed at a later date to provide detail on the toxics reduction planners, requirements related to substances of concern and substance of concern reports and administrative penalties.

The Ministry of the Environment is proposing a broader Toxics Reduction Strategy that would include the following components:

Support to Industry and a Green Economy:

• Provide compliance assistance, technical assistance and financial incentives to encourage toxics reduction, with a focus on small businesses, and position Ontario for the new green economy.
• Train and accredit toxics reduction planners.
• Provide information on these programs on the Internet.

Informing Ontarians:

• The Ministry is committed to increased public transparency by providing the public with access to place-based information on facilities’ use of toxics and progress in achieving toxics reductions.
• Public awareness activities are under development to support increased toxics literacy and to provide Ontarians with the necessary knowledge to make informed choices.

From August 27, 2008 to October 11, 2008, the Ministry consulted on a policy proposal for Ontario's Toxics Reduction Strategy, and attached a Discussion Paper, “Creating Ontario’s Toxics Reduction Strategy” (Registry Number: 010-4374) to detail the proposed components of the Strategy. In addition to the Environmental Registry posting, the Ministry held multi-stakeholder consultations, one-on-one sessions and information sessions with Aboriginal Communities. The Minister of the Environment also established a Toxics Reduction Scientific Expert Panel to provide advice on the development of the proposed Toxics Reduction Strategy in general and in particular the prioritization of toxics under the Strategy.

On April 7, 2009 Bill 167, the Toxics Reduction Act, 2009 was introduced for first reading and posted for public consultation (Registry Number: 010-6224). On June 3, 2009 the Toxics Reduction Act, 2009 was passed by the Ontario Legislature and received Royal Assent on June 5, 2009.

In July and August of 2009, the Ministry held two multi-stakeholder workshops, two multi-stakeholder information sessions, and individual meetings with representatives from industry, industry associations, environmental non-governmental organizations and health non-governmental organizations to discuss the technical aspects as well as the non-technical elements of the regulatory proposal.

The Ministry will continue to work with stakeholders and the public and all interested parties will have an opportunity to provide comments.

Ana Tinta
Senior Policy Advisor
Ministry of the Environment
Integrated Environmental Policy Division
Strategic Policy Branch
Toxics Reduction Project
135 St.Clair Avenue
Floor 5
Toronto Ontario
M4V 1P5
Phone: (416) 327-9716
Fax: (416) 326-6679