Toronto industries will now have three layers of overlapping regulation of their use of toxic substances: federal, provincial and municipal. Other than occupational (employee) health and safety, the federal government has traditionally been the primary regulator of specifically toxic materials, through the Canadian Environmental Protection Act, 1999; the Hazardous Products Act, the National Pollutant Release Inventory, the Chemicals Management Program, etc. Last fall, the City of Toronto announced its own toxic substances bylaw, focussed on 25 substances that only partly overlap with the federal List of Toxic Substances. Now, Ontario is moving into the same field with Bill 167, the Toxics Reduction Act, 2009.
The basic concepts of the Ontario Bill is sound- those who use and release toxic substances should know it, should admit it, and should reduce their emissions if they can. The public should know who is polluting its air and water with especially hazardous chemicals. However, these are the same principles that underlie federal rules, such as NPRI, and the Chemicals Management Program, and it is not obvious what a second layer of regulation will add. Was it really impossible to accomplish more by working with the feds?
Ontario and Toronto are dissatisfied, though, with the slow pace of federal regulation, and have decided to supplement it with their own. Many businesses are dismayed, as this may lead to three or four different lists of “toxics” and “substances of concern” at the different levels of government, and to overlapping, but different, requirements for managing each list. The Canadian market is too small to easily bear multiple layers of regulation on a single topic, and this is a time of particular difficulty for many Ontario manufacturers.
It is always hard to assess a statute without the regulations that will accompany it. In this case, it is the missing regulations that will determine which substances will be regulated, and for which industries. The Act itself does not contain any of the principles that will define either.
Other than the multiplicity of lists and requirements, major concerns about the Bill will likely include:
- security concerns about disclosing the name and location of toxic substances;
- protection of confidential business/ technical information;
- lack of criteria for what counts as toxic; and
- the grouping of facilities with different owners/ operators.
Initially, businesses will have detailed obligations to measure, monitor and report on toxics, and to plan how to reduce them. However, they will not be obliged to reduce/ phase out particular toxics. In a later, phase, however, the Bill will authorize the province to ban or restrict the use and release of particular substances, regardless of their federal status.