On April 17, 2014 and December 4, 2014, the Ministry of the Environment and Climate Change posted a regulatory proposal for public consultation on the Environmental Registry and Regulatory Registry outlining a proposed new environmental approval process to better enable the use of alternative low-carbon fuels by energy-intensive manufacturers as a cost-effective way to achieve greenhouse gas emissions reductions.
A decision has been made to implement the regulatory proposal. O. Reg 79/15 and O.Reg 80/15 were filed with the Registrar of Regulations on April 13, 2015.
O. Reg 79/15 under the Environmental Protection Act (EPA) exempts energy-intensive manufacturing facilities in the cement, lime and iron and steel sectors (including manufacturers of metallurgical coke) from requiring a ‘waste disposal site’ Environmental Compliance Approval (ECA) for certain activities on the site when they are using alternative low-carbon fuel in place of coal or coke. Sites exempt from ‘waste disposal site’ ECA approval will not be subject to requirements under the Environmental Assessment Act (EAA). The regulation will require proponents first to publicly consult on the potential environmental impacts of any proposed on-going use of alternative low-carbon fuel before applying to the Ministry for an ECA. In addition, the regulation will further facilitate alternative low-carbon fuel demonstration projects.
O.Reg 80/15, made to amend Ontario Regulation 681/94 under the EBR, maintains the current process of exempting demonstration projects from public consultation requirements of the EBR and third-party appeal provisions.
Comments were received on the notice of proposal and these comments were considered before making the final regulation.
Comment(s) Received on the Proposal:
Public Consultation on the proposal for this decision was provided for 60 Days, from December 04, 2014 to February 02, 2015.
As a result of public consultation on the proposal, the Ministry received a total of 77 comments: 37 comments were received in writing and 40 were received online.
Additionally, a copy of all comments are available for public viewing by contacting the Contact person listed in this notice.
All comments received were given full consideration by the Ministry. A summary of the comments on the Notices of Proposal for Regulation and the Ministry’s responses are indicated below.
The ministry received comments primarily on the following issues:
- Ensuring no loss in accountability, transparency and accessibility under the new application process
- Maintaining the activity under the EAA
- Providing a service guarantee on Ministry review of Environmental Compliance Approval applications for alternative fuel use
- Giving third parties automatic right of appeal to the Environmental Review Tribunal
- Potential impacts to local air quality
- Potential impacts to progress on the 3Rs (reduce, reuse, recycle) in Ontario
- The desire to see alternative fuel use counted towards waste diversion
- Inadequate consultation on the regulatory proposal
Ensuring no loss in accountability, transparency and accessibility under the new application process
Some submissions requested that the regulation ensure no loss in accountability, transparency and accessibility in comparison to the existing environmental approvals process for alternative low carbon fuels use.
Response: Proponents will continue to be required to consult with the public before submitting an application to the Ministry for an Environmental Compliance Approval to use alternative fuel on an on-going (permanent) basis. Such approvals applications would be posted on the Environment Registry for public comment, and could be appealed by third parties to the Environmental Review Tribunal. In addition, those industries approved to use alternative low-carbon fuels on an on-going basis, that are already subject to requirements of Ontario Regulation 194/05 (Industry Emissions – Nitrogen Oxides and Sulphur Dioxide) with regard to use of a continuous emissions monitoring system (or equivalent), will be required to post monthly emissions data and hourly concentration data on a public website on a quarterly basis.
Maintaining the activity under the EAA
One submission suggested that the activity of alternative low carbon fuels use remain under the Environmental Assessment Act.
Response: Similar to requirements under the Environmental Assessment Act. Proponents will continue to be required to consult with the public before submitting an application to the Ministry for an Environmental Compliance Approval to use alternative fuel on an on-going (permanent) basis. For example, proponents will be required to provide the public with information about how the proposed alternative low carbon fuel meets the criteria of the regulation, the potential impacts to local air quality, and the means the proponent proposes to use to monitor and verify any impacts and the effectiveness of mitigation measures. In addition, such approvals applications would be posted on the Environment Registry for public comment, and could be appealed by third parties to the Environmental Review Tribunal.
Providing a service guarantee on Ministry review of Environmental Compliance Approval applications for alternative low carbon fuel use
One submission suggested that the Ministry provide a service guarantee on the time it takes for Ministry review of applications for Environmental Compliance Approval to use alternative low carbon fuels.
Response: The regulation does not include a service guarantee on ministry review of ECA applications. The ministry will consider the priority for review as applications are submitted.
Giving third parties automatic right of appeal to the Environmental Review Tribunal
A few of the submissions suggested that third parties be given automatic right to appeal the Ministry’s decision on Environmental Compliance Approval applications to the Environmental Review Tribunal.
Response: The Environmental Protection Act provides the Environmental Review Tribunal with the authority to consider third party ‘interest’ in the approvals decisions. The ERT considers whether the decision could result in significant harm to the environment and the extent of the third party interest.
Potential impacts to local air quality
Several submissions, both supportive and opposed to the proposed regulation, wanted to ensure appropriate controls were in place to ensure there would be no potential impacts to local air quality.
Response: Proponents will need to continue to meet Ontario’s stringent air quality standards and seek appropriate environmental approvals from the Ministry of the Environment and Climate Change for the use of alternative low carbon fuels. The regulations do not alter Ontario’s existing requirements/applicable framework on emissions to air.
Potential impact to progress on the 3Rs
Some submissions recommend that the regulations ensure that Ontario’s progress on the 3Rs (reduce, reuse, recycle) remain unaffected by the use of waste as an alternative low-carbon fuel.
Response: This regulation aims to make it easier for energy intensive manufacturing industries to use non-recyclable materials (waste derived) that meet specified quality requirements as alternative low carbon fuel instead of coal to reduce greenhouse gas emissions. It limits the type of material that may be used to that which is non-reusable and non-recyclable. For example, proponents will not be allowed to use regulated recyclable materials such as tires and blue box wastes. Ontario believes in reducing, reusing and recycling to divert as much as possible from disposal.
Desire to see alternative low-carbon fuel use counted towards waste diversion
Some submissions advocated for the inclusion of alternative fuel use in waste diversion considerations.
Response: The proposal and decision are clear that Ontario does not consider the use of alternative low-carbon fuels to be waste diversion as the activity is outside of the 3Rs.
Several submissions argue that the government’s consultation on the regulatory proposal was inadequate.
Response: The government has met with a wide range of stakeholders over the last year. The ministry also consulted stakeholders through a regulatory posting made to the Environmental Registry for a 45-day comment period that ended June 1, 2014, focused discussions with respondents, and through a posted of the draft regulations made to the Environmental Registry for a 60-day comment period that ended February 2, 2015.