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Now that the Toxics Reduction Act is in force, Ontario companies are starting to collect data for their first annual report on the first 47 groups of “toxic” substances. The report is not due until June 1, 2011, but it must be based on data to be collected on substances “used” or “created” January to December of this year.

Ministry of the Environment staff have wrapped up their cross-province compliance seminars, but here are some key issues that remain unclear:

  1. What is “used”? Do the new rules apply to unintended and undisclosed contaminants of raw materials?  How would an organization know?
  2. What is “created”? Anyone with a combustion process will “create” short-lived intermediates that never escape the furnace, and which cannot practically be measured. In practice, these intermediates will probably have to be ignored.
  3. What is “approximately equal”? Organizations will be required to redo their mass balance accounting until their toxic substance inputs are “approximately equal to” their outputs, in the hope of identifying all significant material flows. Does that mean 80% equal? 90%? 95%? 99.99%? The costs to business may vary dramatically depending on how this requirement is interpreted. The ministry is promising to provide “guidance” later, “in the spring”, but organizations need to collect data now.
  4. An even tougher question is: What is a “process”? To meet federal NPRI requirements, most organizations regulated by this Act already know the quantities of toxic substances that enter and leave their plants. The MOE wants organizations to generate the same information at every step of their internal operations, divided into numerous, finely grained “processes”; the MOE gives examples of a new “process” every time a different piece of equipment is used. However, it is far from clear that this is what the law requires.

The Act and Regulation 455/09 require each regulated organization to quantify its substances at each step of a “process”.  “Process” is not defined. Section 12 of the Regulation states:
in determining how many processes a stage of the manufacturing operation should be divided into… the owner and the operator of the facility shall ensure that a sufficient number of processes are identified for that stage to enable the owner and the operator to meet the requirements set out in section 9 of the Act…
But section 9 of the Act sheds no light on the question:
The owner and the operator of a facility… shall ensure that, for each process at the facility that uses or creates the substance, the substance is tracked and quantified, in accordance with the regulations, to show how the substance enters the process, whether it is created, destroyed or transformed during the process, how it leaves the process and what happens to it after it leaves the process.
The only defining feature of a “process” seems to be that it creates, destroys, or transforms a toxic substance somewhere along the way. Ontario’s hard-pressed manufacturers and mineral processing operations must therefore make an important choice when they define their “processes” for the first annual report.  They will never be able to redefine them, and the number and detail of the “processes”  will have a major impact upon the overall cost of regulatory compliance. They must therefore think carefully,  and think ahead, about which details are likely to give them useful information about potentially cost-effective changes to their operations.

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