Law Times

PAGE 12 FOCUS MOE modernization Online system allows for streamlined approvals T BY JUDY VAN RHIJN For Law Times he Oct. 31 launch of a new system of online approvals signals the end of the one-size-fi ts all ap- proach to environmental com- pliance matters. Th e new risk-based approach will off er a simple online regis- try for low-risk and well-under- stood activities. Th e hope is that self-registration will increase ef- fi ciency and fl exibility and de- crease backlogs and the need for multiple approvals. "Hallelujah!" is the response of Dianne Saxe, head of Dianne Saxe Professional Corp. in To- ronto. Saxe was one of a group of experts that the Ministry of the Environment assembled 10 years ago to ask questions on this subject. "We said something like this needed to be done to re- place the individualized, expen- sive, and slow approval process required for even routine applica- tions." Any business that has an impact on the natural en- vironment through, for example, releas- ing contaminants or disposing of waste needs an approval from the ministry to operate in Ontario. In the past, a busi- Madeleine Donahue ness had to apply for multiple approvals for individual processes and pieces of equipment. Th e new online system will enable a business to register certain activi- ties with the ministry rather than apply for an approval or, if they involved a higher risk, to apply through a single process. Madeleine Donahue, a part- ner at Macleod Dixon LLP in Toronto, says the govern- ment's intention to streamline applications is laudable. "Too often, low-risk ap- plications take far too long and use up valuable MOE resources. My ex- perience in work- ing with clients getting approvals is that it takes an enormous length of time even for things that are not that complex. Th is is not good for business. Th e ministry should be able to concentrate on mat- ters that are complicated and need engineering approval." Saxe has had clients who have waited two years for ap- provals. "It's just an economic stranglehold," she says. Both Saxe and Donahue hope the registry will expand as it develops. In its initial form, it's available for three common systems and processes — heat- ing systems, standby power GET A CLEAR PERSPECTIVE ON ENVIRONMENTAL LAW Ontario Environmental Legislation 2011-2012 and Canadian Environmental Legislation 2011-2012 are convenient sources of all the current legislation and regulations. Key Developments in Environmental Law 2011 is a collection of articles offering expert insight into current legal trends. Together, these titles offer a clear perspective on environmental law. 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CANADA LAW BOOK® www.lawtimesnews.com systems, and automotive refi n- ishing — involving preset rules of operation. Saxe believes this is a good start but feels there are many more activities that are suitable for self-regulation. "Th ere are all kinds of routine activities that happen over and over again. For example, a paint booth — whether it be for car parts or hammer handles — there's al- ways a risk of letting something escape, so they all need permits. But nothing requires a high- technology engineering input. Similarly, trucks that take waste don't need an individualized ap- proach. It doesn't matter if it's a Ford or a Honda. If they have the right features and the driver is trained, it should get its per- mit. It's the more complicated, unpredictable things that need to be scrutinized." Th ere are plans to expand the sectors and add new activi- ties for self-regulation following further consultation. Th e min- istry is planning to release draft regulations for public and stake- holder scrutiny over the next few months. To date, there have been discussions on including parts of the printing industry as well as waste collectors and transporters. Donahue believes busi- nesses understand they'll lose their registration if they don't comply with the requirements. "Th e government is saying it won't make you go through the process of standing in line and waiting for an approval but it reserves the right to audit. It doesn't mean they're home free. Th ey still have to maintain compliance. Th ere's still some due diligence to do." Th ere has been some op- position to the new scheme from public-interest groups. "Some not-for-profi t and envi- ronmental organizations were concerned that they won't have the same public input if they are opposed to the approval," says Donahue. "Th ere are not the same rights to appeal or apply for a review under the Environ- mental Bill of Rights." But Donahue's opinion is that the restrictions are justifi - able. "For low-risk projects, it makes sense to curtail that in any event. Th ird parties shouldn't be appealing these low-risk applica- tions. Th ey have other means of criticizing government." In conjunction with the new registry, the ministry is also at- tempting to streamline environ- mental compliance approvals for higher-risk applications with an online form that addresses all of a business' emissions, discharges, and wastes. Separate approvals for air, noise, and waste are no longer necessary. It's the environmental com- pliance approvals that will be the most interesting, says Do- nahue. "Effi ciencies will be gained in the process, but we don't know how the director will exercise his or her discre- tion. It has the potential to be good but also the potential to be bad. Various public interest groups will want to have the opportunity to comment and they are certainly entitled to have input if an approval will aff ect them on a local basis. Some contentious applications that before were not subject to public consultations and hear- ings now may be. For business, it's a bit of an unknown." Donahue is also concerned that the government isn't show- ing any intention to publicize the new service. "I wonder how businesses will learn about this development. Th e onus appears to be on businesses and their ad- visers to get the word out." As a result, she suggests en- vironmental lawyers may need to broadcast the news to exist- ing clients themselves. "It will be a question of time before the public and business ap- preciate this new streamlined system is out there." NOVEMBER 21, 2011 • LAW TIMES

• Cover
• Monetary Penalties
• Repatriation Revisited
• Focus On Environmental Law