The Town of Oakville is venturing into the realm of regulating environmental issues. It recently announced that Council will consider a by-law for the reporting and regulation of the amount of fine particulate companies can emit in Oakville. A copy of the proposed by-law can be found by clicking here. This would seem to be part of an increasing trend by municipalities to regulate environmental issues within their boundaries. Toronto has recently implemented restrictions on pesticide use, a requirement for businesses to charge for plastic bags and a Toxics Right to Know by-law that requires businesses to annually file public reports on their environmental releases of 25 toxic substances of "priority health concern".

Oakville's proposed by-law goes much further than the Toronto by-law. If passed in its current form, the by-law would impact proposed and existing facilities with or without Ministry of the Environment Certificates of Approval for air emissions. Existing facilities that may cause or increase a major emission to air and that have an MOE Certificate of Approval are required to apply to the Town within 12 months for a facility-specific approval. The application will require modelling of fine particulate emissions from the facility and in relation to existing levels of fine particulate emissions present in the airshed, mapping, assessment and appraisal. A $25,000 fee is required to accompany the application (ostensibly to pay for a Town peer review of the application). Following peer review, the Town is required to engage in public and agency consultation on the application including a public meeting. Thereafter, Council shall make one of the following decisions:

(a) Where, following consideration of the application, Council concludes that the major emission does not have a significant public health effect on the Town, Council may approve the application, with such conditions as Council considers necessary to meet this standard; or

(b) Where, following consideration of the application, Council concludes that the major emissions has a significant public health effect on the Town, Council shall

(i) refuse to approve the application and, in such case, also decide that in its opinion the applicant's major emission constitutes a public nuisance; or

(ii)approve the application on the basis that the public interest favours allowing the applicant's major emission to occur, with such conditions as Council considers necessary to address the public interest.

One has to wonder how "public interest" will be interpreted.

The regulatory thresholds in the proposed by-law vary considerably from the Toxics Reduction Act (Ontario) and the National Pollutant Release Inventory (Canada) for the precursor pollutants.

It is also worth noting that there is no appeals process and significant fines may be levied if a company fails to comply with the by-law including operating without an approved application. The proposed by-law provides for a fine of up to $100,000 for a first offence. The subsequent offence provisions are vague but would appear to be $10,000 per day or part of a day upon which the offence occurs.

Some have speculated that the by-law may be the latest missive in a dispute between Oakville and the Ontario Power Authority regarding the construction of a new 900-megawatt gas fired power plant in the Town. A review of the Town website confirms that the by-law is in direct response to the new power plant.

According to materials produced by the Town, the rationale behind the by-law is to protect the health of Oakville residents from the effects of fine particulate matters by collecting information on industrial emissions of fine particulate and implementing regulatory controls for "major emitters." However, the by-law does not address other sources of fine particulate emissions, such as vehicular and residential emissions, which account for two-thirds of the fine particulate in the air according to statements made by Oakville representatives.

While the objective may be laudable, the by-law leaves much to the discretion of the Town, and Town Council in particular. For example, the definitions of "assessment", "precursor pollutant" and "volatile organic compounds" can be defined by the Town and it is up to Town Council to determine whether a major emission has a significant public health effect on the Town, the necessary conditions that should be imposed on a major emitter (whether it has a significant public health effect or not) and whether the public interest overrides a significant public health effect on the Town.

Consultation with some affected businesses was held on January 19th. A public session is scheduled for tonight and comments are required by January 25. The matter is expected to proceed to Council only a week later on February 1, 2010.