Submissions on Bill 66 –…

Submissions on Bill 66 – Restoring Ontario’s Competitiveness Act, 2018, Schedule 5: “Repeal of the Toxics Reduction Act, 2009 and all associated regulations by December 31, 2021” (ERO # 013-4234) and “Planning and reporting changes under the toxics reduction program and Ontario Regulation 455/09” (ERO # 013-4235)

We are pleased to provide comments regarding the above named posting to the Environmental Registry regarding the Toxic Reductions Act.
We are a registered not for profit corporation that consists of approximately 20+ member groups across southern Ontario working to ensure responsible and sustainable management of excess soils.
It is noted that the Registry announcement regarding repeal of the TRA indicates that there will be duplication with the Federal Chemicals Management Program. Our understanding is that both federal and provincial governments can regulate the same things in different ways. We are unsure if a fulsome review of the overlap or lack of overlap has been conducted to ensure, without a doubt, that absolutely everything the TRA does or could do would be duplicated by the Federal Government’s Chemicals Management Plan. We have reviewed CELA’s (Canadian Environmental Law Association) submission and legal review of this proposal and acknowledge that their position is that the provincial and federal programs would indeed not be redundant.
We also note that the ER posting indicated that the TRA has not been effective program. We would suggest that the TRA not be abandoned but strengthened. We note CELA’s observation with regards to sections of the TRA that have not yet come into force. We agree that perhaps if these did come into force, it would make for a stronger more effective program.
We support CELA’s submission to Michael Friesen, Toxic Reduction Program, sent via email on January 18th, 2018. We quote the following excerpts from their submission in support of not repealing the TRA but strengthening it.

“The MECP proposals are based on the assumptions that: (1) the TRA and its planning and reporting requirements are duplicative of federal requirements; and (2) eliminating the TRA and its requirements will save industry money but still result in protecting human health and the environment. The assumptions are not correct. The concept at the heart of TRA of mandatory preparation, but voluntary implementation, of toxics reduction plans has a record of demonstrated success in jurisdictions such as Massachusetts that have had such a law in place for approximately three decades. The TRA has only really been fully in effect since 2013. There is no reason, and more importantly, no evidence, to assume it cannot work in Ontario given time and dedication.”

“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”.
“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.”
Regarding planning and reporting requirements under the TRA, OSRTF agrees with CELA as per the following:
“The planning and reporting requirements of TRA are the heart of the statute and how it fills the gaps in the inadequacies of federal law (CEPA). By eliminating the TRA and its unique requirements, MECP jeopardizes both the human health and environmental protections of the statute as well as its potential economic benefits to industry in identifying where reductions in the use and creation of toxic substances may be possible. Recent data from the Minister’s own annual reports illustrates these points.”
“What is clear is that facilities indicating an intention to implement a reduction option are the ones where reductions in the use and creation of toxic substances have occurred. It should be remembered that the Act has only really been in full effect since 2013, so five years is not really a long enough period to gauge the success or failure of the law. Abandoning TRA at this stage is neither prudent nor helpful to either environmental health protection of the public or potential economic benefits to industry from reduced use and creation of toxic substances.”

“The TRA needs to be improved, not abandoned and the need for these improvements dwarfs any concern with alleged “red tape” under the program. Some of these needed improvements are noted below.”
1. Key provisions of the Act are still not in force, including administrative penalties. We note there needs to be a motivation to comply.
2. Lack of a Robust List of Substances of Concern
“What is regrettable is that MOECC did not list under the authority of section 49 of the Act, the 135 substances it identified in 2008 as “reproductive toxins, neurotoxins, mutagens, and carcinogens” that it viewed at that time as likely present in the Ontario environment (and not otherwise listed in the NPRI).”(Canada’s National Pollutant Release Inventory)
3. Lack of Toxics Reduction Targets

“Section 50(1)(d) of O. Reg. 455/09 authorizes the provincial cabinet to set, by regulation, targets relating to toxic substances. However, after eight years under the TRA there still are no targets set under the regulations. As noted above, Table A showed what the on-site releases to air of carcinogens were in Ontario in 2013 and compared them to New Jersey for those substances in both jurisdictions with comparable reporting thresholds. The comparison demonstrated the need for dramatic improvement in reducing toxic substances in Ontario, a need that the TRA should be more visible in undertaking. Establishing targets relating to toxic substances would help in such an endeavor and would be a far more valuable initiative than repealing the Act.”
Therefore, we recommend the following as quoted from CELA’s submission,
“1. MECP not repeal the TRA;
2. MECP not revoke the regulations or eliminate any of the planning and reporting requirements of the TRA, including the requirement on industry to prepare toxics reduction plans;
3. MECP proclaim in force sections 11, 15.1, 20.1, 26.1, 30, 38, and 50(1)(o.1)(o.2) of the Act;
4. MECP list under the TRA as substances of concern the 135 substances identified in the 2008 Discussion Paper if they are still present in commerce and the environment in Ontario; and
5. Pursuant to the authority under s. 50(1)(d) of the Act, MECP set targets relating to toxic substances under O. Reg. 455/09. “
Respectfully submitted