The Ontario Ministry of the Environment and Transport Canada have co-operated in the defining of regulations and enforcement of the transport and disposal of commodities and waste material across the country. During the process of securing a waste licence, it is important to understand fully, the types of waste being handled and the applicable “waste system” licence - a term used by the MOE to identify all waste transportation, handling and processes – that may be required. Understanding the waste, will determine what waste or commodities fall under the Environmental Protection Act or the Transportation of Dangerous Goods (TDG) Act and their relation to either Federal or Provincial Regulators.
For example, a commercial entity in Ontario requires an MOE licence to transport building and construction waste. What?
In 2009 an Owen Sound company was fined a total of $16,000 plus victim fine surcharges for various charges relating to the hauling and handling of waste without approval. The court heard that the company removed residential development demolition and construction debris and transported it to a non-licensed waste site. The site was in fact a property owned by the company. An inspection by the Ministry of the Environment revealed that the company was not approved by the Ministry to transport waste, nor was it approved to act as a waste management system (receiver of waste).
In this particular case, the company would have required an MOE licence for the waste transport, with the licence clearly identified on the vehicle and another licence to receive the waste. Within the site licence itself, it would identify what processes could applied when handling the waste within the facility. That could include batching waste types, incineration in some provinces, burial or even recycling.
These fines, upheld by the Ontario Courts, have wide ranging implications on our industry, particularly following catastrophic events. Recently, during the tornado aftermath in Goderich, Ontario, private individuals and other commercial entities could be seen to be working for hire and hauling waste - waste that was loaded and transported to a non-licensed site, originally intended for tree clearing and related debris, and was subsequently re-excavated and hauled to the landfill, because it contained designated substances. Although it is difficult to track waste in a catastrophic situation, but when it can be tracked back to the source, it is the responsibility of the property owner (considered the waste generator) to ensure it is handled and ultimately disposed of according to the applicable regulations. By extension, the insurer must complete its own due diligence when vetting contractors when in a position of recommending them to an insured.
On March 31, 2010, a Barrie area contractor pleaded guilty to violations under the Environmental Protection Act for depositing waste at a non-licensed facility and hauling the waste without a Certificate of Approval. The Court heard that the company was involved in the demolition, clean-up and removal of debris from an extensive structural building fire in downtown Barrie, Ontario. The company was charged following an investigation by the Ministry’s Investigations and Enforcement Branch and resulted in a $3,000 fine, plus a 15% victim fine surcharge; the company was given six months to pay.
In 2010, a Sarnia based company and two individuals were fined $35,000 for the unapproved dumping of demolition rubble. The property owner was fined a total of $5,000 by the Ontario Ministry of the Environment under the Environmental Protection Act after allowing debris to be taken to an unapproved landfill. The property owner who accepted the waste was fined a further $5,000, and the waste haulage company another $8,000. The two individuals made the mistake of not making sure that the contractor had dealt with the material according to the regulations in place. The Ministry of the Environment ordered the site cleaned and remediated of the waste debris, and the cost was split between two of the convicted parties, which totalled another $145,000.
The “waste generator” is defined in Ontario under regulation 153/04 of the Ontario Environmental Protection Act as the owner of the waste or owner of the site where the waste was created. By extension, the waste generator in most cases is the property owner, either private or corporate, and is subject to the applicable regulations and subsequent fines for ensuring the waste is handled correctly.
In 2011, a London, Ontario based company discovered buried drums of what appeared to be a petroleum-based product at one of their properties. The company removed the drums and placed them near a fence line, where subsequently the deteriorated drums leaked. A local company was then contracted to remove the drums, excavate the impact soils in the area and transport the waste to a disposal site in Sarnia, Ontario. The excavation contractor did not have a valid Certificate of Approval from the Ministry of Environment and the London company did not report the spill. The company that experienced the spill was fined $25,000 for failing to report, and the excavation company fined $8,000 for transporting waste without a licence. BOTH companies were fined an additional 15% victim fine surcharge and given 30 days to pay.
This very recent case is indicative of a situation where both parties, as determined by their previous histories, should (or ought) to have known about the regulatory requirements of the activities. Even though the subject property was cleaned up AND the waste was removed and disposed at a licensed facility, the additional victim fine surcharges were applied.
Further, the wording of the judgement - “did not have a valid Certificate of Approval” - could apply to a number of different scenarios that were not identified in the release:
a) The hauler might have been issued a waste licence but not for this waste type,
b) The hauler might have had a previous licence revoked,
c) Or there might not have been a licence in place.
When a clear intent exists to avoid expensive disposal and transport costs, the Ministry of Environment can, at its discretion, ask for jail time and huge fines, against not only businesses but also for the directors and principals of a corporation. In a case currently before the courts, the Crown prosecutor is aggressively seeking jail time and substantial fines for the illegal dumping by a Trenton-area company in Sidney Ward and Oxford County. Two men pleaded guilty over a year ago to operating a waste disposal site without a Certificate of Approval and depositing contaminated waste on land that was not an approved landfill site. The Ministry of the Environment is seeking a six-month sentence and $310,000 in fines for one man and a one-year jail term and $160,000 in fines for the other. Although the case is still before the courts, it is clear that substantial fines will be levied and that clean-up can be substantial.
Along with regulatory requirements associated with general construction waste haulage, similar regulatory requirements are in place for the haulage of impacted waste soils and designated substances. Most would agree that solid waste soils containing fuel oil, gasoline or other petroleum hydrocarbons require regulatory approval for their handling. However, the regulations concerning general construction waste are regularly overlooked. Surprisingly, the disposal cost of building material waste can often be twice that of impacted waste soils.
Currently in Ontario there are a number of circumstances and commodities that require reporting, and seemingly almost as many exemptions from doing so. The myriad of different acts, regulations and regulatory bodies can make the specific reporting requirements somewhat confusing. Beyond the requirements for waste generating, transport and waste processes, there are still more specific reporting and exemption requirements for spills and releases into the environment. Understanding the act and regulations or the reporting of all spills is the safest way to ensure your compliance and reduce risk.