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May 02, 2010

Omnibus Open for Business Act would replace much of the existing environmental approvals process with a streamlined compliance approval and online registry system

On May 17, 2010, the Ontario Minister of Economic Development and Trade introduced Bill 68, the Open for Business Act, 2010. The omnibus Bill is intended to transform the government-to-business relationship by streamlining government services and cutting so-called ‘red tape’. That red tape includes a number of environment-related provisions.

Bill 68 includes over 100 proposed revisions to some 50 pieces of provincial legislation administered by 10 different ministries. Those that may be of most interest to the environmental community include the following

  • Amendments to the EPA and OWRA to adopt a risk-based approach for approvals that focuses resources on activities that pose the greatest risk to the environment; establishing a searchable online registry for low-risk activities; and creating an electronic submission process.
  • “Parts I and II of the Waste Management Act, 1992 would be repealed and amendments to Part III would allow the municipalities of Durham Region, Peel Region and the City of Toronto to appoint inspectors with the same powers of entry on any land (and certain other powers) as the inspectors of the Interim Waste Authority Ltd. currently hold under the existing Part I. The Schedule provides for the repeal of the entire Act on a day to be named by proclamation of the Lieutenant Governor.”
  • To address issues raised by the land development industry, the Ministry of Natural Resources is proposing amendments to the Conservation Authorities Act that would streamline the approval process, ensure greater consistency in permit decisions and ease compliance obligations.
  • The Ministry of Agriculture, Food and Rural Affairs is proposing amendments to the Drainage Act that would improve clarity, remove duplication and simplify notice and filing processes.

Also of interest to many of our readers, the Ministry of the Attorney General is proposing amendments to the Professional Engineers Act to improve self-governance and remove citizenship requirements for a Professional Engineer Licence, making it easier for internationally trained engineers to work in Ontario.

The most exciting of the changes to the EPA deal with the new streamlined approvals process. The Ministry of the Environment estimates that the risk-based approach to environmental approvals and the online applications process could reduce application costs for businesses by as much as 25%. If the legislation is passed, the Ministry would “gradually roll out the new requirements through tough regulations throughout 2011 and 2012,” according to Environment Minister John Gerretsen.

Certificates of approval under EPA sections 9 (processes and equipment) and section 27 (waste management systems and waste disposal sites) and under section 53 of the OWRA (sewage works) would all be replaced by “environmental compliance approvals”. A new Part II.1 of the EPA and associated regulations would set out the process for obtaining environmental compliance approvals.

Certain low-risk activities, to be set out by regulation, will not require an environmental compliance approval. Instead, under a new Part II.2 of the EPA, such activities would only need to be registered in an Environmental Activity and Sector Registry (although registration may require the submission of information, reports or records). Such activities would be governed by rules prescribed by the regulations rather than by specific terms and conditions.

Significant other changes are being proposed for the EPA, including broadening the scope of administrative penalties, amending the jurisdiction of the Environmental Review Tribunal to award costs, and provisions dealing with financial assurance. However, most of these have not been posted (as yet) on the Environmental Registry. The Ministry of the Environment has only posted a discussion paper dealing with the approvals modernization initiative on the Registry for 45-days of public comment on March 2, 2010 (Click here).

In that posting, the Ministry indicated that it could use an applicant’s past history of non-compliance to weed out the bad apples. Bill 68 would add a “past conduct” clause to the EPA allowing the Director to suspend, revoke or refuse to issue an environmental compliance approval if the past conduct of the applicant or its directors or officers affords reasonable grounds to believe that the person will not engage in the activity in accordance with the EPA/OWRA or regulations.

Finally, the bill would expand the Ministry’s inspection powers by permitting provincial officers to require a regulated person to “respond to reasonable inquiries” for the purposes of determining compliance with legislation.

For more information, contact:

John Willms
T:(416) 862-4821
E: jwillms@willmsshier.com