On June 5, 2009, Ontario enacted the Toxics Reduction Act, 2009 (“the Act”) which sets out a regulatory framework to track, report and reduce the use of prescribed toxic substances in Ontario. While much of the framework to regulate the prescribed substances has been left to new regulations, the Ministry of the Environment (“Ministry”) indicated its plans for the regulations in a document released this past summer.
The Act, which will come into force on a date to be proclaimed, will regulate toxic substances prescribed by regulation as a Toxic Substance (“Toxic Substances”) and already subject to reporting requirements under the National Pollutant Release Inventory (“NPRI”). The Act will also regulate substances of concern, prescribed by regulation as Substances of Concern (“Substances of Concern”), and which are not currently tracked by the NPRI. The Ministry has posted proposed lists identifying 256 Toxic Substances and 19 Substances of Concern.
The majority of the requirements under the Act regulate Toxic Substances and will require owners and operators of affected facilities to:
- track and quantify the Toxic Substances they use and create;
- prepare Toxic Substance reduction plans to identify ways to reduce the use and creation of Toxic Substances;
- make summaries of the plans available to the public; and
- report on progress.
The Ministry has indicated that the regulation of Toxic Substances will likely apply to facilities within the manufacturing and mining sectors that have a minimum of 10 full time employees. The threshold to trigger the requirements will likely be the same as those in the NPRI (10,000 kg or as otherwise set out in the NPRI).
These requirements will likely come into effect in two phases. For Toxic Substances prescribed under phase 1, facilities will be required to undertake an accounting of those substances starting January 1, 2010 and will be required to provide their first annual report on June 1, 2011. The Ministry anticipates that requirements for the substances prescribed under phase 2 will commence two years after the first phase.
Facilities will also be required to submit reports on Substances of Concern. The Ministry has indicated that the requirements for Substances of Concern will also apply to facilities in the manufacturing sector and those undertaking mineral processing activities; however, the Ministry is not currently proposing a minimum number of employees that a facility must have before it is subject to these requirements under the Act. In addition, the Ministry anticipates that the regulation will establish a reporting threshold of 100 kg.
The Ontario government is seeking to raise awareness of Toxic Substances in the province, and to this extent, is planning to establish an electronic reporting system and website which will enable the public to monitor the plans and reporting progress of facilities.
A number of issues still need to be considered before the regulations are finalized, including, requirements for Toxic Substances accounting, timing, preparation and contents of reports regarding Substances of Concern, and administrative penalties. The Ministry will continue to consult with stakeholders as it develops these regulations; however, facilities should confirm whether they may be affected by the incoming requirements.