The Ministry of the Environment Proposes a Legislative Framework for Modernizing Approvals
On March 2, 2010 the Ministry of the Environment ("MOE") published for comment the Legislative Framework for Modernizing Approvals (the "Framework"). The Framework was open for comment until April 16, 2010.
In a stated effort to focus more resources on unique and potentially complex approval applications, the MOE’s Framework proposes a two-tiered environmental approvals approach. This approach considers risk and complexity in determining the best "tier" for an approval: lower risk, less complex activities would be subject to a Registry Process, whereas unique, complex activities or those which pose a potential risk to the environment and human health will continue through the Certificate of Approval Process. The proposed Registry Process, the Certificate of Approval Process, and the electronic submission requirements proposed in the Framework are described below.
The Registry Process
The Registry Process is intended to be a simpler and timelier process that applies to lower risk, standard, well understood, and relatively less-complex activities. Essentially, facilities subject to Registry Process would register the activity on the Registry thereby obtaining "approval" to carry out that activity. This process would replace the existing Certificate of Approval requirements for selected activities.
The Registry Process would apply to selected activities identified by regulation; the Framework indicates that the MOE plans on consulting with stakeholders in developing such regulations. Types of criteria that could be used in determining whether an activity is eligible for the Registry Process include the location of the facility, zoning, distances to sensitive receptors and sensitive environmental features, size of the operation, design of the facility and of pollution controls, and the quality and quantity of emissions from the facility.
Different activities may have different requirements that must be met in order to register on the Registry. For example, for some activities, facilities may be required to submit additional information to the Registry, such as technical specifications, site plans and drawings, and training certificates. Prescribed activities would be permitted to operate after registration on the Registry, provided they operate according to rules established by regulation.
Registrants would also be required to make declarations regarding an activity’s eligibility for the Registry Process and the accuracy of the information submitted. Ongoing operational requirements may apply to activities, such as the requirement to provide reports to the MOE and to the public, to undertake specific training and to make on-going declarations regarding the accuracy and relevance of the registration.
The Certificate of Approval Process
The Framework proposes that the Certificate of Approval Process would apply to those activities which cannot be registered in the Registry — i.e. more complex, unique activities that have the potential to impact the environment and/or human health. Such activities would undergo a technical review by the MOE and would be subject to public comment; the MOE would make a decision whether to issue a Certificate of Approval.
The Certificate of Approval Process proposed in the Framework is similar to the current environmental approvals process, however, the MOE is considering the following changes to simplify the process: (i) issuing a single, site-wide environmental Certificate of Approval that covers all media (air, wastewater, and waste); (ii) providing an opportunity for operational flexibility (such as future process changes at the facility); (iii) allowing for multi-site or system-wide approvals; (iv) setting complete submission and quality requirements in regulations for Certificate of Approval applications. These changes are described in detail in the Framework.
The Framework also proposes that the MOE have the ability to determine that it is in the interest of the natural environment or of administrative efficiency for an activity to go through the Certificate of Approval process rather than the Registry Process. For example, the MOE could use such discretion where activities at a facility require both a Certificate of Approval and registration on the Registry (i.e. the MOE may allow all activities to be covered in the Certificate of Approval).
The Framework proposes electronic submission for both the Registry Process and the Certificate of Approval Process. An electronic registry would be set-up to provide a one-window approach for businesses to submit information, track the status of their applications and remit registration or approval-related fees to the MOE. Information submitted electronically would be publically available, subject to the requirements of the Freedom of Information and Protection of Privacy Act (especially as such requirements relate to confidential and proprietary information).
The Framework also outlines how the MOE proposes to deal with (i) transition from the current system to the new, two-tier system, (ii) requirements for continuous improvement; (iii) financial assurance and clean-up; (iv) hearing requirements; and (v) service guarantees for Certificate of Approval Applications. For the regulated community, one of the more potentially contentious proposals in the Framework is for legislative changes that would allow the MOE to assign responsibility for clean-up and costs to a parent company where financial assurance was absent or inadequate.
Many details will need to be worked out in order to move forward with the changes proposed in the Framework. If the MOE proceeds with the modernization of the approvals regime, there will be opportunity to comment on significant regulations, such as those which set out the activities to be subject to the Registry Process and the rules governing those activities. Approvals modernization has the potential to lead to a timelier and easier approvals process in Ontario that is at the same time more protective of the environment. It will be important to review and comment on the regulations once they are released to ensure that this happens.
Click here to access the Legislative Framework for Modernizing Approvals.