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Time to Beef Up Toxics Reduction Measures

Red tape reduction, not toxics reduction, is alive and well in amendments to regulations promulgated in April 2018 under Ontario’s Toxics Reduction Act. To understand why, it is necessary to briefly review the history of this once promising provincial environmental law and the steps that should be taken going forward to revive it.

The 2008 Discussion Paper

A decade ago in 2008, Ontario released a discussion paper on a new approach in the province to controlling toxic substances in the environment. Ontario proposed to reduce the use and creation of them. The approach was modelled on successful legislation in Massachusetts that had achieved (and continues to achieve) significant reductions in quantities of toxics generated by industry in that state through measures that are “information-based”. This approach is characterized by mandatory production, but voluntary implementation, of toxics reduction plans by industries covered by the law. Ontario’s proposal promised to be a welcome supplement to traditional “command and control” regulation of emissions of toxics under provincial as well as federal law.

The Law and Progress Under it to Date

Ontario’s Bill 167, the Toxics Reduction Act, was introduced in the legislature in 2009 with much fanfare and hailed by the province’s environment minister of the day as capable of making the environment cleaner, safer and healthier, as well as spurring innovation, job creation, and economic growth. Proclaimed in force in 2010, the intervening years have seen the law achieve significant compliance rates in the production of plans by industries subject to the law (just the manufacturing and mineral processing sectors are covered), but spotty voluntary implementation of toxics reduction measures under the plans.

Predictably, progress towards overall reduction in the use, creation, and release to the environment of toxic substances has been less than anticipated. For example, for Ontario facilities’ indicating in their plans an intention to implement a reduction option, the data reported shows a steady reduction in the amounts of toxic substances used, created, or contained in product for the period 2012-2016. That is a good news story. However, for all facilities, including those not indicating an intention to reduce, the data on the amount of toxic substances used, created, or contained in product has remained largely unchanged over the five-year period. Moreover, the data also shows that for each year between 2013 and 2016 the total amounts of toxic substances, including those linked to cancer, released to air, land, and water for all facilities were greater than for 2012. So, on balance, disappointing results under a statute for which much was expected.

Ontario’s Response: Regulations to Reduce Red Tape

What has been Ontario’s response? Underwhelming. In 2017, the environment ministry posted for comment on the environment registry a series of what it called “minor amendments” to the regulations. The purpose of these proposed amendments was to reduce “red tape”, including reduce the reporting burden, adjust scheduling and timing of the plan review process to better align with reporting of releases under federal law, clarify language, and correct minor errors. On the whole, the proposed changes might best be described as housekeeping.

Opportunities Missed

Furthermore, these changes struck those commenting on the proposals as missing larger problems with the law’s implementation. First, key provisions of the statute still have not been proclaimed in force despite the fact the law has been in place since 2010. These un-proclaimed provisions include those: (1) requiring substance of concern reports; (2) authorizing the use of administrative penalties; and (3) controlling toxic substances in products. Second, the reason the provision on substances of concern reports is not in force is because there have been no substances of concern listed under the regulations. Substances of concern were contemplated by the 2008 discussion paper to be substances that were candidates for inclusion in the law as toxic substances. The 2008 discussion paper identified as many as 155 substances of concern including “reproductive toxins, neurotoxins, mutagens, and carcinogens”. None of them have been included under the Toxics Reduction Act regulations to date. Hence, there has been no impetus to proclaim the provision requiring reports on them. Third, despite authority under the regulations that has existed since 2010 for the provincial cabinet to set, by regulation, targets relating to toxic substances, there are still no targets. However, the province needs targets given the levels of emissions of toxic substances that have occurred in Ontario recently, particularly in comparison to other jurisdictions (e.g. Ontario’s on-site air releases of carcinogens in 2013 were between 24 and 300 times higher than New Jersey’s using the same reporting thresholds).

What Should be Done?

These concerns, identified during the public comment process, met deaf provincial ears. In April 2018, the regulations were adopted largely along the lines of the 2017 red tape reduction proposals. The environment ministry’s reason for not going further was that proclaiming the un-proclaimed provisions of the Act, for example, was outside the scope of the province’s regulatory proposals. While that is strictly speaking true, is it asking too much to have the province: (1) proclaim in force key provisions of the Act passed by the legislature eight years ago; (2) list substances of concern in the law having characteristics, such as carcinogenesis, identified in the 2008 discussion paper; and (3) establish targets so that the public can determine what progress is being made to reduce, not red tape but, toxic substances in Ontario? These are the questions that are of vital public interest. Perhaps, the new Ford government will provide answers “for the people”.