The TRA does not duplicate…

The TRA does not duplicate the federal regulations, it supplements them. It should not be repealed.

TRA was designed to deal with the Achilles heel of CEPA; its failure to deal more aggressively with preventing pollution from toxic substances on a company by company basis. To fill that gap, Ontario enacted the TRA to reduce the use and creation of toxic substances by requiring companies to develop and hopefully implement plans that do just that, modelled on the very successful Massachusetts Toxics Use Reduction Act.2 TRA was not modelled on CEPA.

Indeed, there are several limitations under CEPA. The reporting requirements pursuant to notices issued under s. 46 of CEPA that result in the NPRI, address the obligation on companies to report on the release, but not the use, of toxic substances. Accordingly, a focus on the use (and creation) of toxic substances, as is the case with TRA, represents new, not duplicative, legal authority in
Ontario. As the Environmental Commissioner of Ontario has observed: “While the existing
federal NPRI program focusses on gathering and publishing information on industrial
emissions…the driving intent of the TRA is toxics reduction”.3

Moreover, the ministerial authority under s. 56 of CEPA that requires persons on notice to
prepare and implement a pollution prevention plan4 has been used too infrequently and in
relation to far too narrow a number of industrial sectors or companies to constitute a systematic
response to the problem of increasing releases and use of toxic substances into the Ontario
environment.5 Quite simply, few substances covered by TRA have been subject to pollution
prevention measures under CEPA.

Furthermore, the CMP, which developed out of the requirements of s. 73 of CEPA, is not
designed to substitute for the TRA. CMP is an assessment of the toxicity of existing substances
that had never previously been tested, or had only been inadequately tested, to determine which
should be restricted or prohibited. With some exceptions, it has resulted in allowing existing
substances to remain in commerce with restrictions. Therefore, TRA is designed to pick up where
CEPA leaves off by getting companies to use less of, or not create in the first place, potentially
problematic substances the federal government allows to remain in commerce.

2 Mass. Gen. L. ch. 211. The Massachusetts law’s goal of achieving 50% reduction from 1987 quantities of toxic or hazardous by-products generated by industry in the state, was reached in 1998.
3 Environmental Commissioner of Ontario, “Moving from End-of-Pipe to Front-End Toxics Reduction in Ontario”,
in Redefining Conservation: Annual Report 2009/2010 (September 2010), at 94.
4 Section 3 of CEPA defines “pollution prevention” as: “the use of processes, practices, materials, products,
substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the
environment or human health”.
5 See generally Ontario, Legislative Assembly, Standing Committee on General Government, in Debates, No. G-30
(May 25, 2009), at G-764 (Dr. Miriam Diamond, Co-Chair, Ontario Toxics Reduction Scientific Expert Panel).