The Ministry of the Environment, Conservation and Parks (MECP) is consulting on four new initiatives, including new guidelines and measures aimed at ensuring compliance with key environmental laws relevant to the development industry. These laws and initiatives are applicable to the land use planning process, affecting municipal decision-making, development guidelines and penalties for non-compliance. The four initiatives, in brief include:

1. Providing better tools and creating clear guidelines for municipalities to make land use planning decisions that will reduce noise and odour impacts from industry
2. Proposing guidance on how industrial facilities, development proponents and other members of the regulated community can anticipate, prevent, and address odour issues
3. Updating the MECP environmental compliance policy to prioritize high-risk incidents and better hold polluters accountable
4. Expanding administrative monetary penalties to cover approximately 150,000 regulated entities, including individuals, small businesses and large corporations, as well as public entities like municipalities and crown corporations

The complete bulletin can be found here: https://ero.ontario.ca/notice/019-3268

Below is a brief summary of each initiative and its impact on land use planning. Consultation on the initiatives is underway and continues until July 3, 2021. Links to individual bulletins and comment mailboxes are provided in each summary.

D-Series land use compatibility guidelines

ERO No. 019-2785: https://ero.ontario.ca/notice/019-2785

The Province is proposing a new land use compatibility guideline as an update to several of the existing D-Series Guidelines. The proposed update is intended to inform and clarify for municipalities and other planning authorities when compatibility studies and mitigation measures are required, as part of land use planning decisions under the Planning Act. The new guideline would be applied when a Planning Act approval is needed, and either 1) a new or expanding sensitive land use is proposed near an existing or planned major facility; or 2) a new or expanding major facility is proposed near an existing or planned sensitive land use. The draft guideline is available at the link above.

The stated objectives of this guideline, in the context of land use compatibility planning, are to 1) protect employment areas (including industrial employment areas) designated for future major facilities from incompatible uses and encroachment by sensitive land uses; 2) protect existing or planned major facilities from potential impacts from new sensitive land uses; 3) prevent adverse effects to existing or planned sensitive land uses from new and/or expanding major facilities.

The new guideline proposes:

• Area of Influence (AOI) distances associated with specific types and classes of major facilities where adverse effects on sensitive land uses are moderately likely to occur (these distances have been revised from current guidelines based on newer Ministry compliance data)
• Minimum Separation Distances (MSD) associated with specific types and classes of major facilities where adverse effects on sensitive land uses are highly likely to occur (these distances have been revised from current guidelines based on newer Ministry compliance data)
• That a compatibility study is required for a new or expanding major facility or a new or expanding sensitive land use proposed in an AOI or MSD, to determine appropriate setbacks and mitigation measures
• That planning authorities should not allow sensitive uses within the MSD of a major facility except in rare circumstances
• That a demonstration of need assessment, as required under the Provincial Policy Statement, 2020 (PPS) to assess whether alternate preferred locations exist in the municipality for that proposed land use, is required for a sensitive land use proposed within the AOI of a major facility where mitigation measures are required and where a sensitive land use is proposed within the MSD of a major facility
• Contents of compatibility studies and demonstrations of need, and additional direction and links to technical guidance to assist with the compatibility studies and demonstrations of need
• Guidance on how to incorporate land use compatibility policies and concepts into official plans and as part of approvals under the Planning Act
• Examples of mitigation measures that may help to reduce impacts, as demonstrated in a compatibility study, and discussion on integrating these mitigation measures as legal requirements
• Guidance on planning for land use compatibility in areas of infill and intensification
• Links and information on other guidance that may apply in relation to specific types of facilities
• Guidance specifically related to land use on or near landfills and dumps, and on assessing methane hazards from landfill sites

As a result of modified AOI distances, the proposed guideline would require compatibility studies for some land use proposals for which a study is not currently required by existing guidelines.

The proposed guideline replaces the following guidelines:

D-1 Land Use and Compatibility
D-1-1 Land Use Compatibility: Procedure for Implementation
D-1-2 Land Use Compatibility: Specific Applications
D-1-3 Land Use Compatibility: Definitions
D-2 Compatibility Between Sewage Treatment and Sensitive Land Use
D-4 Land Use on or Near Landfills and Dumps
D-4-1 Assessing Methane Hazards from Landfill Sites
D-4-3 Registration or Certificates and Provisional Certificates iii
D-6 Compatibility Between Industrial Facilities
D-6-1 Industrial Categorization Criteria
D-6-3 Separation Distances

The D-Series documents not replaced by the guideline are:

D-3 Environmental Considerations for Gas or Oil Pipelines and Facilities
D-5 Planning for Sewage and Water Services and its subsections

Note that the D-4-2 Environmental Warnings/Restrictions and D-6-4 MCCR Bulletin No. 91003 (Environmental Warnings/Restrictions on Property) were previously replaced by the 2009-04 Environmental Warnings and Restrictions.

Odour guidelines

ERO No. 019-2768: https://ero.ontario.ca/notice/019-2768

The Province is proposing a new guideline for odour emissions that provides members of the regulated community, including development proponents and industrial facilities, with methods for anticipating and identifying potential sources of odour, best practices for odour mitigation, and clarity regarding their responsibilities under the law. This includes more effective remediation methods for odour mixtures not addressed by the Local Air Quality Regulation. In general, the stated objective of the guideline is to take a proactive and preventative approach to managing odour emissions and allow for more coordinated and confident long-term land-use planning.

The guideline proposes:

• Clarification on the requirements for potentially odorous facilities applying for an Environmental Compliance Approval (ECA) under section 20.2 of the Environmental Protection Act
• Clarification for facilities preparing an Odour Study required by the Renewable Energy Approvals Regulation (Ontario Regulation 359/09)
• Tools to more effectively anticipate and prevent odour issues for new sources of odour and speed up remediation efforts
• A process for assessing, mitigating and minimizing odour impacts when a new development is proposed, which supports the proposed Land Use Compatibility Guideline
• Additional resources for facilities when assessing odours or when preparing a Technology Benchmarking Report for odour
• Considerations for laboratories in Ontario that assess odour

The new guideline, if approved, would be supplemented by technical resources, including a technical bulletin on odour assessments, a screening form to determine the information required for a complete Environmental Compliance Approval (ECA) application, a sample odour technology benchmarking report (demonstrating how to complete one), and a technical bulletin establishing minimum standards for odour-related practices. In addition, the guideline would initiate a corresponding update to the application guide for an ECA, the checklist of technical requirements for a complete ECA submission, and the Technical Guide to Renewable Energy Approvals.

The MECP’s compliance policy

ERO No. 019-2972: https://ero.ontario.ca/notice/019-2972

The Province is proposing an update to the MECP compliance policy, focused on assigning resources to high-risk incidents and holding polluters more accountable. The proposed policy aims to modernize the judgement matrix that Ministry officers use to prioritize and resolve cases, applying more stringent measures to repeat offenders. In total, the update alters three regimes: the MECP’s compliance policy, referral tool, and service standards. Updates to the referral tool and service standards are aimed at efficiently referring low-risk incidents, and incidents not regulated by the MECP, to more appropriate agencies and levels of government. The MECP will focus on high-risk incidents and facilities that have Ministry-legislated duties (eg. landfills and organic waste facilities). The proposed update comes with a name change to the compliance policy, from the Compliance Policy Applying Abatement and Enforcement Tools to Ontario’s Environmental Compliance Policy.

Administrative monetary penalties

ERO No. 019-3268: https://ero.ontario.ca/notice/019-3268

This initiative is posted in the general ERO bulletin and is not assigned its own number. MECP is expanding its ability to issue administrative monetary penalties for environmental violations in response to more violations and more entities (including individuals, small businesses and large corporations, as well as public entities). The MECP is holding engagement sessions to present the proposed approaches and details of the new administrative monetary penalty framework for environmental violations. For further information on these engagement sessions, interested parties are directed to contact andre.martin@ontario.ca.

Dentons will continue to monitor these initiatives, and the revisions that result from ongoing consultation. If you have any questions about how this relates to you or your business, please contact Katarzyna Sliwa or any member of our Municipal Planning, Land Use and Development Law group.

Dentons gratefully acknowledges the contributions of Leighton Zink to this article.