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The Environmental Review Tribunal has reduced the usefulness of an important exception to the “waste” rules in Regulation 347.For decades, there has been a tug-of-war between the Ministry of the Environment and the waste industry over the true scope of the ministry’s jurisdiction. In particular, what is and is not “waste”?

One very important exemption, set out in Regulation 347 under the Environmental Protection Act is that most materials are exempt from regulation as “waste”, if they are “transferred by a generator for direct transportation to a site, to be wholly used at that site in an ongoing agricultural, commercial, manufacturing or industrial process or operation used principally for functions other than waste management…”  The Ministry has traditionally interpreted this requirement as meaning that material must be entirely fed into the “ongoing process”. The MOE’s Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste (amended June 2011) states that “…‘wholly’…means that all of the wastes must enter the process or operation…”

Now, however, the the ERT has ruled that the material must also be totally consumed in the process, a  , a requirements that will rarely be met.

Waste: Wholly used means wholly consumed?

1076330 Ontario Inc. operates a hazardous waste facility for liquid industrial waste (LIW). Cobric Chemicals processes spent (fused) sodium hydroxide (SSH), using 107’s LIW. The MOE issued an order to the companies requiring them to apply for a CofA for the SSH processing operation and prohibiting them from accepting wastewater for use in the operation. The companies appealed. At issue was whether SSH and LIW are exempt wastes under O.Reg. 347, as being “wholly used” in Cobric’s process.

The appellants led no evidence as to the portion of SSH or LIW that settles out during processing, or what happens to the sludge that remains in the tank. The ERT found that all the wastes must be consumed in that process or operation; it does not mean that contaminants within the waste may enter the process, only to be removed later from the product that is sold to the ultimate purchaser.

This, they said, is consistent with an example set out in the Manual, which permits incidental sedimentation to occur, but solely in storage tanks where treatment is not intended. In this case, the sludge was in a treatment tank. The SSH and LIW were not “wholly used” in Cobric’s process therefore are “wastes” and do not fall within the Reg. 347 exemption. Although the SSH and LIW are not pre-treated to separate out the waste, the process incorporates waste materials that are not “used” in the final product. These materials are filtered out or remain on the bottom of the processing tank. Held: Appeals dismissed. Neither company had a CofA to handle the SSH and this must be removed from the site in accordance with the Orders.

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