This article originally appeared in the Winter edition of INFLUENTS magazine
In February 2007, a fire at a frozen food warehouse blew thick black smoke over Toronto's Leaside neighbourhood. Firefighters were so concerned about ammonia stored in the building's refrigeration system that a tanker truck was brought in to siphon the contents of the ammonia storage tank.1
In June 2007, a fire at a Hamilton computer recycling plant sent eight firefighters to hospital, with residents of more than 100 homes advised to leave the area. The blaze spewed an acrid smell of burning plastic for a full night and day, prompting the Ministry of the Environment to set up portable air monitoring equipment in the area. The fire reminded many residents of the infamous Plastimet car-parts recycling inferno of 1997, which burned for four days and consumed 400 tonnes of car parts.2
These recent events remind us of the great latent risk that stored chemicals and wastes can pose to the environment and the public.
Against this backdrop, the Ministry of the Environment recently published Guidelines for Environmental Protection Measures at Chemical and Waste Storage Facilities,3 an update of 1978 Guidelines. The Guidelines apply to many aspects of chemical and waste storage, such as tanks and piping, secondary containment, inspection and monitoring, and emergency preparedness. They do not apply to lagoons, settling ponds or trenches.
The Guidelines do not carry the force of law, nor do they override legislation or the certificate of approval conditions. Furthermore, the MOE acknowledges that other storage solutions may be equivalent to or exceed the Guideline standards. However, Guideline standards can be incorporated into binding legal instruments, such as through certificate of approval amendments or MOE orders (described in further detail below).
Those who are responsible for operating municipal water and wastewater treatment plants should assess their level of compliance with the Guidelines. These facilities often use and store a wide array of chemicals, such as alum, chlorine gas, hypochlorites, ozone, potassium permanganate, sulfur dioxide or sulfite, lime and soda ash.
How The Guidelines Might Affect Your Plant
There are several ways in which the otherwise non-binding Guidelines can either become binding or highly relevant to your plant.
MOE Review And Issuance Of Certificate Of Approval Applications
If you are applying for a certificate of approval for a site or system that involves the storage of chemicals or waste, the MOE could use the Guidelines in evaluating the proposed storage provisions in the application. When the certificate of approval is issued, it could require that the site conform to the Guidelines.
Amending Certificates Of Approval
When it comes time to amend your certificate of approval, the MOE may review your storage provisions and practices, and use the opportunity to amend your certificate of approval to conform to the Guidelines.
Source Protection Plans
Another way in which your plant might become subject to the Guidelines is by Ontario's new source water protection legislation, the Clean Water Act. Conservation authorities and municipalities will soon be assessing threats to drinking water and developing Source Protection Plans. These plans might require facilities to comply with relevant parts of the Guidelines.4
MOE Inspections
The Guidelines could be used by MOE abatement staff as a reference and guide to best practices during an inspection of chemical and waste storage areas. If a facility falls below the standards in the Guidelines, an inspector may recommend compliance with the Guidelines.
MOE Orders
You may receive unwanted attention from the MOE if your plant's waste or chemical storage practices do not conform with the Guidelines. An inspection or an environmental incident that is reported to the MOE could result in an MOE Order that requires implementation of measures contained in the Guidelines.
Part Of Due Diligence Defence
For most regulatory offences, a defendant can often avoid liability by showing that reasonable care was taken to avoid the commission of the offence (commonly known as the 'due diligence' defence). If the MOE prosecutes an offence relating to chemical or waste storage, the defendant's level of compliance with the Guidelines may form part of a due diligence defence. Even if a facility is unable to comply with the Guidelines due to fiscal or other institutional constraints, documentation of the organization's consideration of the Guidelines could be evidence of due diligence.
Although there are many ways in which the Guideline standards can become binding, the MOE recognizes that compliance with the Guidelines may not be immediately practicable in many circumstances.
In determining whether an existing chemical or waste storage facility should conform to the Guidelines, environmental officers would consider risk factors such as proximity to sensitive receptors, nature and quantity of the chemicals or waste, potential for impact to the environment, history of environmental incidents and compliance, and the relative degree of nonconformity with the Guidelines.
A self-assessment of your plant in light of the above factors can provide you with an indication of how urgently you should be striving to comply with the new Guidelines.
Footnotes
1. Stancu, Henry, and Tamara Cherry, Ammonia tank in plant siphoned as 5-alarm fire belches heavy smoke, Toronto Star, February 1, 2007, A16.
2. Plastics fire reignites fear; Homeowners near blaze at Hamilton recycling plant are haunted by infamous 1997 toxic inferno, Toronto Star, June 4, 2007, A4.
3. May 2007. Available from www.ene.gov.on.ca/en/publications/forms/index.php#disposal.
4. See J. Abouchar and R. Bharati, Are You Ready for the Clean Water Act? What You Should Know to be Prepared for Ontario's New Source Water Protection Legislation, INFLUENTS (Spring 2007, v. 2) at p. 48.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
