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ontario regulation 125/10

made under the

toxics reduction act, 2009

Made: March 10, 2010
Filed: April 1, 2010
Published on e-Laws: April 6, 2010
Printed in The Ontario Gazette: April 17, 2010

Amending O. Reg. 455/09

(General)

1. (1) Subsections 1 (1) and (2) of Ontario Regulation 455/09 are revoked and the following substituted:

(1) In this Regulation,

“level of quantification” means, in respect of a toxic substance in a calendar year, the level of quantification for the substance within the meaning of the NPRI Notice for the calendar year;

“NAICS” means the North American Industry Classification System maintained for Canada by Statistics Canada as amended or revised from time to time;

“NPRI Notice” means, in respect of a calendar year, the notice or notices given under subsection 46 (1) of the Canadian Environmental Protection Act, 1999 that are applicable in that year with respect to substances in the National Pollutant Release Inventory, as published in The Canada Gazette;

“NPRI substance” means a substance that is included in the list of substances captured under a NPRI Notice as set out in the NPRI Notice.

(2) In this Regulation, a toxic substance is disposed of in a calendar year if it is disposed of within the meaning set out in the NPRI Notice for that year.

(2) Section 1 of the Regulation is amended by adding the following subsection:

(4) For the purposes of this Regulation, if there is more than one owner or operator of a facility during a calendar year in which subsection 3 (1) of the Act applies, the owner and the operator of the facility on December 31 in the calendar year are deemed to be the owner and the operator of the facility for the year.

2. Subsection 2 (1) of the Regulation is revoked and the following substituted:

(1) In the Act, “employee” and “facility” have the same meaning in a given calendar year as the meaning set out in the NPRI Notice for that year.

3. (1) Paragraph 1 of subsection 3 (1) of the Regulation is revoked and the following substituted:

1. Any substance that is a NPRI substance, if the substance is in the form specified in the NPRI Notice in which the substance is listed.

(2) Subsection 3 (2) of the Regulation is amended by striking out “a substance listed in Schedule 1 to the NPRI Notice” and substituting “a NPRI substance”.

4. Sections 7 to 11 of the Regulation are revoked and the following substituted:

Other criteria

7. (1) For the purposes of paragraph 4 of subsection 3 (1) of the Act,

(a) if the substance is a NPRI substance, the NPRI Notice in which the substance is listed must require the owner and the operator of the facility to provide information in respect of the substance in a year subsequent to the year in which the NPRI Notice applies; or

(b) if the substance is acetone, section 4 of Ontario Regulation 127/01 (Airborne Contaminant Discharge Monitoring and Reporting) made under the Environmental Protection Act must apply.

(2) For greater certainty,

(a) a requirement in a NPRI Notice to provide a report stating that there is no information available regarding the quantity of a toxic substance is a requirement to provide information in respect of the substance; and

(b) a requirement in a NPRI Notice to provide information with respect to total unspeciated poly-cyclic aromatic hydrocarbons is not a requirement to provide information in respect of an individual poly-cyclic aromatic hydrocarbon unless there is a requirement to provide information in respect of the individual substance.

Other criteria, same calendar year

8. For the purposes of paragraph 4 of subsection 3 (1) of the Act, all of the criteria mentioned in sections 4 to 7 of this Regulation must be met in the same calendar year.

Exemption, dioxin, furan or hexachlorobenzene

9. (1) This section applies in respect of a toxic substance that is a dioxin, a furan or hexachlorobenzene if the owner and the operator of a facility have ensured that at least one toxic substance reduction plan has been prepared for the substance under subsection 3 (1) of the Act in a previous calendar year and, but for this section, subsection 3 (1) of the Act applies in the calendar year.

(2) Despite clause 7 (1) (a), subsection 3 (1) of the Act does not apply in a calendar year in respect of a toxic substance mentioned in subsection (1) if,

(a) the owner and the operator of the facility have determined through monitoring or source testing that the concentration of the substance released on-site, disposed of or transferred off-site for recycling is less than the estimated level of quantification set out in the NPRI Notice for the year; and

(b) the owner and the operator create a record and submit it to the Director on or before June 1 in the year following the calendar year in which the circumstances described in clause (a) apply,

(i) identifying and describing the circumstances that led to the determination, and

(ii) setting out all information and any quantifications relied upon in making the determination.

(3) Despite clause (2) (b), if the owner and the operator of a facility create and submit a record mentioned in that clause for three consecutive years and the circumstances described in clause 2 (a) continue to apply, they are not required to create and submit further records on an annual basis for the purposes of the exemption in subsection (2).

(4) If the circumstances described in clause (2) (a) no longer apply in a calendar year immediately after one record or two consecutive records mentioned in clause (2) (b) have been submitted, the owner and the operator of the facility shall,

(a) ensure that a new plan is prepared as if it were the first plan prepared under the Act, if,

(i) the calendar year is a year during which, absent the exemption in subsection (2), a review under section 7 of the Act would have been required to be conducted in respect of the toxic substance reduction plan for the substance, or,

(ii) the calendar year is a year immediately following a year mentioned in subclause (i); or

(b) subject to section 11.4, ensure that this Regulation is complied with as if there had been no interruption in the application of subsection 3 (1) of the Act, if the calendar year is not a year described in subclause (a) (i) or (ii).

(5) If the circumstances described in clause (2) (a) no longer apply in any calendar year after three consecutive records mentioned in clause (2) (b) have been submitted, the owner and the operator of the facility shall ensure that a new toxic substance reduction plan for the substance is prepared as if it were the first plan prepared under the Act. 

(6) A record submitted under this section shall include a certification signed by the highest ranking employee at the facility who has management responsibilities relating to the facility, in the following language:

As of [insert date], I certify that I have read the record created for the purposes of section 9 of Ontario Regulation 455/09 (General) made under the Toxics Reduction Act, 2009 in respect of the use and creation of [insert toxic substance(s)] at [insert name of facility] and am familiar with its contents and to my knowledge it is factually accurate.

(7) The Director shall make available to the public any record that is given to the Director under this section, other than the information and quantifications mentioned in subclause (2) (b) (ii), by,

(a) posting the record on the Internet; and

(b) giving a copy of the record to a member of the public, upon written request.

Exemption, substances in Table A

10. Subsection 3 (1) of the Act does not apply until January 1, 2012 in respect of a toxic substance that is not listed in Table A.

Exemption, volatile organic compounds

11. (1) Despite subsection 3 (1) of the Act and the inclusion of volatile organic compounds as a NPRI substance in a NPRI Notice, no toxic substance reduction plan is required to be prepared in respect of volatile organic compounds as a group.

(2) The exemption in subsection (1) does not apply in respect of a NPRI substance that is listed individually in a NPRI Notice and that is also a volatile organic compound.

Toxic Substance Reduction Plans — Timing

Plan, timing requirements

11.1 (1) If subsection 3 (1) of the Act applies in a calendar year, the owner and the operator of a facility shall ensure that a toxic substance reduction plan is prepared for the toxic substance on or after the day on which a report is prepared under section 25 in respect of the plan and on or before December 31 in the following calendar year.

(2) The plan mentioned in subsection (1) shall be prepared in respect of the previous calendar year in which subsection 3 (1) of the Act applied.

(3) Despite subsection (1), if the owner and the operator of a facility have ensured that a toxic substance reduction plan has been prepared for a toxic substance, they are not required to prepare a new version of the plan or a new plan for the substance in a subsequent calendar year in which subsection 3 (1) of the Act applies unless,

(a) a new version of the plan is required to be prepared under subsection 20 (1) as a result of an amendment under section 5 of the Act or a review under section 7 of the Act; or

(b) a new plan is required to be prepared under subclause 9 (4) (a) (i) or (ii), subsection 9 (5), subclause 11.3 (2) (a) (i) or (ii) or subsection 11.4 (2).

Creation of record if s. 3 (1) of Act ceases to apply

11.2 (1) This section applies to the owner and the operator of a facility if, in a calendar year immediately following a year in which subsection 3 (1) of the Act applies to them in respect of a toxic substance, that section of the Act does not apply because one or more of the criteria set out in section 4, 5, 6 or 7 is not met.

(2) A person mentioned in subsection (1) shall create and submit a record to the Director on or before June 1 in the year immediately following the year in which subsection 3 (1) of the Act does not apply,

(a) identifying all criteria that are no longer met;

(b) describing the circumstances that led to the criteria no longer being met; and

(c) setting out all information and any quantifications relied upon in making the determination that the criteria are no longer met.

(3) A record submitted under this section shall include a certification signed by the highest ranking employee at the facility who has management responsibilities relating to the facility, in the following language:

As of [insert date], I certify that I have read the record created for the purposes of section 11.2 of Ontario Regulation 455/09 (General) made under the Toxics Reduction Act, 2009 in respect of the use and creation of [insert toxic substance(s)] at [insert name of facility] and am familiar with its contents and to my knowledge it is factually accurate.

(4) The Director shall make available to the public information contained in a record that is given to the Director under this section, other than the information and quantifications mentioned in clause (2) (c), by,

(a) posting the record on the Internet; and

(b) giving a copy of the record to a member of the public, upon written request.

If s. 3 (1) of the Act applies again, fewer than 3 years elapsed

11.3 (1) This section applies to the owner and the operator of a facility if,

(a) they have been required to submit a record under section 11.2 in respect of a toxic substance; and

(b) subsection 3 (1) of the Act applies to them,

(i) in the calendar year in which they are required to submit the record, or

(ii) in the calendar year immediately following the calendar year mentioned in subclause (i).

(2) The owner and the operator mentioned in subsection (1) shall,

(a) ensure that a new plan is prepared as if it were the first plan prepared under the Act, if,

(i) the calendar year in which subsection 3 (1) of the Act applies is a year during which, had subsection 3 (1) of the Act never ceased to apply, a review under section 7 of the Act would have been required to be conducted in respect of the toxic substance reduction plan for the substance, or

(ii) the calendar year in which subsection 3 (1) of the Act applies is a year immediately following a year mentioned in subclause (i); or

(b) ensure that this Regulation is complied with as if there had been no interruption in the application of subsection 3 (1) of the Act, if the calendar year in which subsection 3 (1) of the Act applies is not a year described in subclause (a) (i) or (ii).

If s. 3 (1) of the Act applies again, 3 or more years elapsed

11.4 (1) This section applies to the owner and the operator of a facility if,

(a) they have been required to submit a record under section 11.2 in respect of a toxic substance; and

(b) subsection 3 (1) of the Act applies to them in any calendar year after the year in which the record was required to be submitted, unless subsection 11.3 (1) applies in that year.

(2) The owner and the operator mentioned in subsection (1) shall ensure that a new toxic substance reduction plan is prepared in respect of the calendar year in which subsection 3 (1) of the Act applies in accordance with this Regulation as if it were the first plan required to be prepared under this Regulation.

5. Subsection 12 (1) of the Regulation is revoked and the following substituted:

(1) Subject to section 13, for the purposes of section 9 of the Act, the owner and the operator of a facility shall determine the following in respect of the toxic substance:

1. The amount of the substance that enters a process as the substance itself or as a constituent of another substance.

2. The amount of the substance that is created.

3. The amount of the substance that is destroyed or transformed.

4. If the substance is a NPRI substance,

i. quantifications relating to its release, disposal and transfer that,

A. are required to be provided under the NPRI Notice, or

B. are determined through mass balance, published emission factors, site specific emission factors or engineering estimates, if no quantifications were required to be provided under the NPRI Notice, and

ii. the amount of the substance that is contained in product, other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice.

5. If the toxic substance is acetone, the calculations mentioned in subsection 4 (3) of Ontario Regulation 127/01 (Airborne Contaminant Discharge Monitoring and Reporting) made under the Environmental Protection Act.

6. Sections 13, 14 and 15 of the Regulation are revoked and the following substituted:

No accounting required for specified activities and things

13. Section 9 of the Act does not apply in respect of amounts of a toxic substance that enter a process or are created, destroyed, transformed, released, disposed of, transferred or contained in product, if, under the NPRI Notice, the amounts are excluded from the determination of whether the criteria for reporting under the NPRI Notice are met.

7. The Regulation is amended by adding the following heading before section 16:

Toxic Substance Reduction Plans — Contents

8. (1) Subparagraph 3 iv of subsection 17 (1) of the Regulation is amended by striking out “if the substance is listed in Part 1, 2 or 3 of Schedule 1 to the NPRI Notice” and substituting “if the substance is a NPRI substance other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice”.

(2) Subsection 17 (4) of the Regulation is amended by striking out “that is listed in Part 1, 2 or 3 of Schedule 1 to the NPRI Notice” and substituting “that is a NPRI substance other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice”.

9. Clause 18 (1) (e) of the Regulation is amended by striking out “if it is listed in Part 1, 2 or 3 of Schedule 1 to the NPRI Notice” at the end and substituting “if it is a NPRI substance, other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice”.

10. Subsections 21 (5) and (6) of the Regulation are revoked and the following substituted:

(5) Despite subsections (1), (2) and (3), section 7 of the Act applies to the owner and the operator of a facility in a calendar year in respect of a toxic substance reduction plan only if subsection 3 (1) of the Act applied to them during the previous calendar year in respect of the toxic substance.

11. (1) Section 25 of the Regulation is amended by striking out “Subject to section 14 of this Regulation” at the beginning.

(2) Section 25 of the Regulation is amended by adding the following subsection:

(2) Section 10 of the Act applies to the owner and the operator of a facility in a calendar year in respect of a toxic substance reduction plan only if subsection 3 (1) of the Act applied to them during the previous calendar year in respect of the toxic substance.

12. (1) Subparagraph 4 iii of subsection 26 (2) of the Regulation is amended by striking out “if the substance is listed in Part 1, 2 or 3 of Schedule 1 to the NPRI Notice” at the beginning and substituting “if the substance is a NPRI substance other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice”.

(2) Subparagraph 5 iii of subsection 26 (2) of the Regulation is amended by striking out “if the substance is listed in Part 1, 2 or 3 of Schedule 1 to the NPRI Notice” and substituting “if the substance is a NPRI substance other than a substance that is identified as a criteria air contaminant or a volatile organic compound in the NPRI Notice”.

13. Paragraph 3 of subsection 29 (3) of the Regulation is revoked and the following substituted:

3. A record submitted to the Director under section 9 or section 11.2 of this Regulation.

14. Clause 31 (a) of the Regulation is amended by striking out “if the toxic substance is a substance listed in Schedule 1 to the NPRI Notice” and substituting “if the substance is a NPRI substance”.

15. (1) The heading to Table A of the Regulation is amended by striking out “subsection 9 (2)” and substituting “section 10”.

(2) Table A of the Regulation is amended by striking out Column 3.

16. This Regulation comes into force on the day it is filed.