Mandate. What the dictionary defines variously as “an official order to do something”, an “authoritative command”, a “formal order”, a “directive to act”. That is what the Premier of Ontario issues in the form of a letter, a “mandate letter” every time a minister is appointed to government.
Develop New Alternative Fuels!
That is what Premier Kathleen Wynne released in September 2014 to the Minister of the Environment and Climate Change (MOECC) when she directed the Minister to develop “new alternative fuels in 2014 to help big, energy-intensive industries reduce their greenhouse gas emissions”. Armed with the mandate letter, the Ministry went off and produced a new regulation on Alternative Low-Carbon Fuels (O. Reg. 79/15) released on April 13, 2015 and coming into force on May 1st.
On its face, reducing greenhouse gas emissions by using “alternative fuels” as a substitute for coal seems a necessary and laudable objective worthy of a progressive government agenda in the fight against climate disruption. That is the ostensible reason for the policy. However, perhaps the real rationale for the policy appears to be little more than the desire of the government to protect “trade-exposed” manufacturing industries (such as cement, lime, and iron and steel) from competition from their counterparts in nearby jurisdictions by being allowed to burn cheaper, if not free, fuels. If that is the case, then we can even let that pass.
Safeguard People from Toxics?
However, when the “alternative fuels” turn out to be wastes like railroad ties, telephone poles, plastic bags, shingles, shredded tire fluff, used carpets, etc., then different considerations apply. Many of these waste materials can be expected to contain, to be contaminated with, or to create as a by-product of their combustion, highly toxic substances with associated environmental health impacts.
That problem, plus the problem that mandate letters are never just about one thing, is a recipe for bad environmental law and worse environmental policy. The September 2014 mandate letter is a case in point. Mandate letters usually cover a myriad of matters, and that was true of the September 2014 letter. In this particular circumstance, there is a high probability of the alternative fuels mandate conflicting with the first of two other mandates set out in the letter, in particular: “safeguarding people from toxics”.
CELA pointed this out in a number of submissions to the government, noting, for example:
“…this proposal is described by MOE in the Registry notice as being of potential overall benefit to the province in terms of reduction of greenhouse gas emissions. However, the proposal has the potential, based on the limited information that has been made available, to increase local emissions of certain toxic substances (e.g. lead, cadmium, dioxins and furans, arsenic, PAHs) and particulate matter…”
“…the proposal would purport to remove the designation of this type of activity (burning ostensibly “alternative fuels” but actually waste materials) from the authority of the Environmental Assessment Act (“EAA”). If a proposed activity ever warranted the application of the EAA it is this one given the potential for increased atmospheric releases of certain toxic substances.”
“…the MOE is also proposing to remove the requirement that proponents responsible for these materials obtain a waste environmental compliance approval under the EPA, even though most of the materials that constitute alternative fuels are, in fact, wastes. The burning of various waste materials in decades-old kilns never designed to burn these types of materials, followed by the disposal of potentially still toxic post-combustion by-products, or residual materials in an on-site landfill, is definitely not state-of-the-art environmental management. Streamlining the regulatory path for a proposal that could increase the environmental release of numerous toxic substances contained in these waste materials seems like the wrong message for MOE to be sending the regulated community and the Ontario public.”
“…the proposal would appear to be reliant on using the province’s air pollution regulation, O. Reg. 419/05, as the benchmark for acceptability of the increases in emissions of certain air pollutants expected under the proposal. However, O. Reg. 419/05, based as it is on point of impingement (“POI”) concentrations, has long been criticized by the Environmental Commissioner of Ontario (“ECO”) as inadequate to protect the province’s air resources. As early as 2005-2006, the ECO noted that the regulation: (1) should be based on total annual loadings of contaminants, not short-term concentrations measured over minutes or hours; (2) does not, but should, direct itself to preventing “hot spots” of toxic substance release or contamination from developing due to the concentration of regulated activities that allow such emissions in local areas; and (3) should, but does not, address background concentrations, cumulative or synergistic effects, or persistence and bioaccumulation of concentrations of contaminants. The ERT endorsed this ECO concern in Dawber and was not overturned by the courts on this and related points in Lafarge. Accordingly, bringing forward a regulatory proposal that is reliant on O. Reg. 419/05 appears counter-intuitive, if not counter-productive, given the unhappy history of similar proposals before administrative and judicial decision-makers in Ontario” (references omitted).
“…the proposal seems to implicitly favour the use of alternative fuels because of purported reductions of greenhouse gas emissions notwithstanding apparent increases of emissions of certain toxic substances. Some of the increases in release of toxics are with respect to substances with particularly nasty side effects. For example, the potential for endocrine disruption from increased releases of dioxins and furans is well known. Particulate matter, especially PM10 and fine PM (e.g. PM2.5), are considered toxic under the Canadian Environmental Protection Act, 1999 and are associated with various respiratory problems. Furthermore, PM2.5 travels deep into the lungs, potentially decreasing lung function and causing chronic respiratory disease. The MOE rush to judgment in favour of the burning of “alternative fuels” seems especially problematic in the circumstances without the benefit of the scrutiny that the environmental assessment process could bring to the issue, as noted above” (references omitted).
None of these environmental health concerns penetrated the shield of the mandate letter. There was simply an apparent policy best described as one of “haste to burn waste” fueled, as it were, by the issue of alternative fuels appearing in the mandate letter.
Increase Waste Diversion?
The mandate letter did not stop at precipitating unintended conflict between two environmental policies (greenhouse gas emission reductions vs protection of environmental health from potential increases in toxic emissions). The letter also set out a further directive, this one on increasing waste diversion. However, this directive also stands a high probability of being undermined by the burning of alternative fuels because there is the potential for the burning of wastes to compete for waste streams that may otherwise be recyclable now, or in future. As CELA advised the government on more than one occasion:
“…just as the burning of tires in cement kilns would have discouraged the development of what is now a relatively robust program of tire recycling efforts in the province, the Registry notice proposal has the potential to undermine 3Rs initiatives in Ontario with respect to the feedstocks that would be designated as “alternative fuels” for burning at cement plants. On that ground alone the proposal lacks merit, contrary to the Registry notice’s suggestion that the MOE proposal would help achieve the important objective of ‘reducing the flow of residual waste to landfills while confirming the province’s commitment to the 3Rs (reduce, reuse, recycle)’”.
Moreover, as recycling council experts advised the government, while there was a list in the draft (now final) regulation of what may not be burned, there is no list of what can be burned. Accordingly, neither the policy on burning “alternative fuels”, nor the regulation, promotes green conduct in the targeted industrial sectors. Moreover, sites where these wastes will be burned could become magnets for storage of these wastes and, therefore, raise potential concerns about waste storage standards applicable to ensure protection of groundwater, surface water, air quality, and related matters for adjacent land uses and communities.
At the end of the day this kind of regulatory dance on the environment is known as taking one step forward, but two steps back. The Ontario public deserves better.