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Can municipalities insist that local industries obtain municipal air permits, in addition to those issued by the province?

Spurred by opposition to a new gas-fired electric power plant, the Town of Oakville has opened a new front in the long battle over the role of municipalities in controlling pollution.

The new plant will be much cleaner than the old, coal-fired Lakeview plant that it will replace, and the Ontario Power Authority says it is essential to provide reliable power in the rapidly growing region. However, a provincially-funded study of local air quality has already shown human health impacts from existing levels of air pollution, fueling local opposition to the new power plant.

In December,  Oakville asked the federal ministers of Health and the Environment to issue an interim order under Part V of the Canadian Environmental Protection Act, 1999 to regulated particulate matter (PM10) and respirable particulate matter (PM2.5).  Although these two types of fine dust are designated as toxic substances under CEPA,  and are known to have adverse health effects, the federal government has not adopted regulations to control them.  In part, this is because much of the fine particular matter in our air comes from sources that are difficult to regulate, such as chemical reactions in the atmosphere, motor vehicles, and home fireplaces and woodstoves. Half comes from the US.

The Town also asked the Ontario Ministry of the Environment for a full individual environmental assessment of the proposed power plant; this request is unlikely to succeed. On February 2, Oakville council therefore took matters into its own hands, passing the Health Protection Air Quality By-law 2010-035.

  • The by-law applies to all facilities in the Town that send “major emissions” into the air, i.e.,
    • direct emission of >300 kg of fine particulate matter/year;
    • over 10,000 kg/year of volatile organic compounds;
    • over 20,000 kg/year nitrogen oxides (as NO2 equivalent);
    • over 20,000 kg/year sulfur dioxide; or
    • over 10,000 kg/year ammonia.
  • Under the bylaw,  the proposed power plant and all future major industries must apply for facility-specific approval of their  proposed air emissions, whether or not they hold Provincial certificates of approval for their air emissions.
  • Existing facilities in the Town that cause major emissions to the air must also obtain facility-specific municipal approval of their air emissions.
  • Existing emitters who have MOE CofA’s (air) will be required to report to the Town on “major emissions” within 6 months; those that do not require a CofA will have 1 year to submit a report.
  • A database of all facilities that report, their emissions rates and whether the facility is a source of a major emission will be publicly available on the Town website.
  • Penalties of up to $100,000 may be imposed for facilities that fail to report or obtain an approval.

This bylaw goes far beyond the City of Toronto environmental reporting and disclosure bylaw, by asserting the right to shut down or shut out industries that do not obtain municipal air approvals.   It also goes far beyond municipal bylaws to curb the cosmetic use of pesticides, which were upheld by the Supreme Court in Hudson v. Spraytech. It will almost certainly be challenged in the courts. In the interim, it may or may not hold up the proposed power plant.

  • References

A copy of the draft by-law

By-law number 2010-035 – A by-law to assess and control the health effects of

major emissions of fine particulate matter in the Town of Oakville

is available at http://www.town.oakville.on.ca/Media_Files/By-law2010-035_Feb1.pdf

(Note: The version that was passed has not yet been posted on the Town’s website at http://www.town.oakville.on.ca/bylaws.htm )

By  Dianne Saxe and Jackie Campbell.

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