Amendments to Ontario Regulation 455/09 and creation of a new services documents regulation under the Toxics Reduction Act

Description of regulation

The Toxics Reduction Act, 2009 (TRA) and Ontario Regulation 455/09 (O. Reg. 455/09) came into force on January 1, 2010. The purposes of the Act 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.

As part of its response to the Red Tape Challenge, the Ministry of the Environment and Climate Change (MOECC) is proposing a number of minor amendments to O. Reg. 455/09 aimed to reduce reporting burden, simplify the toxic substance reduction planning process, adjust the schedule and timing of the plan review process, protect business confidentiality, clarify language and intent, better align with the National Pollutant Release Inventory (NPRI) where appropriate, and correct minor errors. In addition, MOECC is proposing a new service of documents regulation under the TRA to modernize the way that documents are served. The proposed amendments are not anticipated to substantially impact policy direction or intent of the TRA, O. Reg. 455/09, or the Toxics Reduction Program.

The proposed amendments to O. Reg. 455/09 and the proposed new service of documents regulation are described below.

Proposed Amendments to O. Reg. 455/09

MOECC is proposing that O. Reg. 455/09 be amended with respect to:

1. Reducing a reporting requirement from the annual report for the regulated community;
2. Modifying the planning process to focus on technically feasible options;
3. Simplifying the toxic substance plan review process;
4. Adjusting the schedule and timing of the plan review process;
5. Protecting confidential business information;
6. Aligning with changes made to the NPRI reporting requirements;
7. Clarifying language and intent of the regulation;
8. Correcting minor errors; and
9. Removing spent items.

1. Reducing a reporting requirement from the annual report for the regulated community

   Require facilities to report on the estimated amounts of toxic substance reductions from the implementation of more than one option in aggregate rather than per option, as is currently the case.

2. Modifying the planning process to focus on technically feasible options

   Modify the toxic substance reduction planning process so that estimates of reduction in the use, creation, and discharge of a toxic substance included in the plan would only be required for those reduction options determined to be technically feasible.

3. Simplifying the toxic substance plan review process

   When creating a new version of a plan as a result of a review of the plan, a facility:

   1. Would be required to provide a new statement of intention to reduce a toxic substance or, alternately, the reasons for not making such a statement. A rationale explaining the changes from the previous plan would no longer be required.
   2. Would be required to update the objectives, but would not be required to provide a rationale explaining the changes from the previous plan.
   3. Would no longer be required to include all the previous years’ records since the current plan was created. Only the previous year’s accounting records would be required to be included. Facilities are already required to retain all documents and records created or acquired for preparing, amending and reviewing plans, and for tracking and quantifying substances for a minimum of seven years.
4. Adjust the schedule and timing of the plan review process

   Change the date by which facilities must review and prepare a new version of their toxic substance reduction plans from December 31, 2018 to December 31, 2019, and require subsequent reviews of plans take place every sixth year instead of every fifth year.

5. Protecting business confidentiality

   For the purpose of reporting to the public, require year-over-year comparisons for the use, creation and contained in product to be expressed in percentages only, and not in actual units of measurement as well, as is currently the case.

6. Aligning with changes made to the NPRI reporting requirements
   1. Automatically provide facilities with an extension to the due date for submitting, annual reports, exit records and exemption records if NPRI reporting deadlines are extended.
   2. Provide the Director with the discretion to extend the due date for submitting plan summaries if there are technical difficulties with submitting them through the online reporting interface (i.e., Single Window).
   3. Align administrative information required by the Toxics Reduction Program with that required by NPRI. The changes focus on the North American Industry Classification System (NAICS) codes, spatial coordinates, and email addresses.
7. Clarifying language and intent of the regulation
   1. Automatically provide facilities with an extension to the due date for submitting, annual reports, exit records and exemption records if NPRI reporting deadlines are extended.
   2. Provide the Director with the discretion to extend the due date for submitting plan summaries if there are technical difficulties with submitting them through the online reporting interface (i.e., Single Window).
   3. Align administrative information required by the Toxics Reduction Program with that required by NPRI. The changes focus on the North American Industry Classification System (NAICS) codes, spatial coordinates, and email addresses.
8. Administrative/housekeeping changes
9. Removing provisions that no longer apply

Proposed New Service of Documents Regulation under the Toxics Reduction Act

1. Make a new service of documents regulation under the TRA to modernize how certain documents are served. This would be similar to service of documents regulations found under the Environmental Protection, Safe Drinking Water, Pesticides, Nutrient Management, Clean Water, and Ontario Water Resources Acts.

Purpose of regulation

Proposed Amendments to O. Reg. 455/09

The purposes of the proposed regulatory amendments to O. Reg. 455/09 are to make relatively minor administrative and timing changes to the regulation that do not impact any significant policy direction or intent of the TRA, O. Reg. 455/09, or the Toxics Reduction Program. Specifically, the purposes for the proposed amendments include:

1. Reducing a reporting requirement from the annual report for the regulated community

   Ontario's Business Growth Initiative aims to invest in innovation, help businesses scale up, and modernize the province's regulatory environment by cutting red tape. The proposed regulatory amendment described above is intended to reduce a small amount of burden of the current regulatory reporting requirements.

2. Modifying the planning process to focus on technically feasible options

   The regulation currently requires that facilities follow the following toxic substance reduction planning process: (1) identify at least one option for each of the specified seven categories of reduction; (2) provide estimates of the amount by which the use, creation, and discharge of the substance at the facility would be reduced; (3) determine which of the identified options are technically feasible; (4) of those that are technically feasible, undertake an economic feasibility analysis of those options; and (5) provide a list of the options that are both technically and economically feasible. By modifying the process so that estimates of reduction would only apply to technically feasible options, it focuses the efforts on options that facilities would be more likely to implement.

3. Simplifying the toxic substance plan review process

   Several of the proposed regulatory amendments will make the toxic substance reduction plan review and update process less burdensome for facilities by removing redundancies and clarifying legal requirements.

4. Adjust the schedule and timing of the plan review process

   Environment and Climate Change Canada (ECCC) is currently consulting on a number of items for the 2018-19 NPRI Notice related to the list of prescribed substances and their thresholds and reporting rules. Toxic substances for the purposes of the TRA are those (in addition to acetone) included in the list of substances captured in a NPRI Notice for a particular year. If ECCC adopts its proposed changes, a significant number of facilities subject to the TRA could see their plan review processes impacted. MOECC’s proposal seeks to postpone the plan review year until 2019 which would better align with the timing of the 2018-19 NPRI Notice. This could reduce the plan review burden on facilities affected by the NPRI changes. Additionally, changing the plan review timeline to a six-year review cycle would provide for better alignment with the NPRI Notice in the future and avoid the current situation where proposed changes to the NPRI Notice could substantially impact the plan review process.

5. Protect confidential business information

   The regulation currently requires the public posting of calculations that can potentially be used to determine confidential business and proprietary information. The proposed regulatory amendment would remove this requirement for public posting in order to protect the regulated community’s business interests. This information would still be required to be reported to MOECC.

6. Aligning with changes made to the NPRI reporting requirements

   The Toxics Reduction Program, through O. Reg. 455/09 adopts the reporting requirements of the NPRI Notice, published biennially by ECCC. Since O. Reg. 455/09 was made, several administrative changes have been made by ECCC through the NPRI Notice that these proposed amendments seek to address. They focus on the reporting requirements with respect to the NAICS codes, spatial coordinates, and email addresses of prescribed facility contacts.

   Additionally, the proposed amendments to the regulation align reporting and submission dates with those required under NPRI, and provide a way for regulated facilities to be granted extensions that align with those granted by ECCC or for specific technical issues related to the online reporting interface (i.e., Single Window).

7. Clarifying language and intent of the regulation

   The proposed amendments clarify how and when annual report information is required to be made available to the public on the internet, and clarify what is meant with respect to what notices are to be submitted to the Director.

8. Correcting minor errors

   The proposed amendments correct minor errors made in the drafting of s. 18.1 (b) (i) and in s. 27 (5).

9. Removing provisions that no longer apply

   As O. Reg. 455/09 was phased-in over two years, the regulation contains references to dates and requirements that are no longer relevant, and it is proposed that they be removed.

Proposed New Service of Documents Regulation under the Toxics Reduction Act

A service of documents regulation under the TRA would give the regulated community certainty and clarity with regard to how documents can be served under the Act. It would help to modernize how documents are given or served and would be similar to those service of documents regulations found under the Environmental Protection, Safe Drinking Water, Pesticides, Nutrient Management, Clean Water, and Ontario Water Resources Acts.

Public consultation

This proposal was posted for a 60 day public review and comment period starting July 28, 2017. Comments were to be received by September 26, 2017.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

Please Note: All comments and submissions received have become part of the public record.