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Boris Weisman, of Earthguard Environmental Group, has taught me a lot about the new air regulation, Reg. 419/05, and the way Ontario’s Ministry of the Environment interprets it. One fundamental issue is this: the MOE insists on being “conservative”, not “accurate”, in evaluating emissions.

For example, when there are several emission factors available for a source, MOE insists that the “highest quality” factor be used. However, the result is pre-judged, because MOE gives higher data quality ratings to the most conservative number available, not to the most accurate one.

The MOE currently interprets s. 11(1)1.[1] to mean that proponents must use the worst possible emission factor found in any reference document or used as a default value (in the absence of site specific information) by any regulator in the world.[2]

In several recent cases, the Ministry has used this extreme interpretation of Section 11  of Reg. 419/05 to claim that a facility “could” be in violation of its standards. In each case, the Ministry artificially increased the facility’s emissions by factors of 10 or 100 in order to “prove” non-compliance, without regard to the actual situation. For example, one artificial increase was imposed because a competitor had higher emissions, allegedly “proving” that such higher emissions were “possible”. This claim was made without comparing the actual process used at the two facilities, nor their emission controls.

When MOE thereby succeeds in predicting non-compliance, the facility is left with only two choices: paragraph (2) (a comprehensive source measurement program) or paragraph (3) (a combined monitoring and modelling study).[3] Both of these alternatives are very expensive. Moreover, s.11(3) offers no solution, because the ministry uses the same unrealistic emission factors in its modelling.

The result: many facilities are suddenly deemed to be breaking the law, for reasons that make no sense to them.

[1] A facility must test for compliance using as the source estimate a value that is “at least as high as the maximum emission rate that the source of contaminant is reasonably capable of”.

[2] The emission rate, referred to in the regulation, is in fact not the same as the emission factor, but is the product of an emission factor and the production or throughput rate.

[3] SDB also insists, incorrectly, that it has the right to determine which of these two paragraphs a facility uses.

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