OFM - Waste Handling 3
After analyzing and evaluating Ontario's existing legislation, current enforcement strategies for compliance with fire safety requirements and the fire potential of storing hazardous materials or waste, as outlined in the Report's objective, the Fire Marshal offers the following recommendations. As these recommendations affect other ministries, the OFM undertook some preliminary consultation. If needed, further consultation will be undertaken with interested and affected groups. Some of the recommendations may require further study or dialogue, to determine the best method of implementation, or to examine alternative strategies to meet the same goals.
New recycling and waste handling facilities where a fire could have a significant impact on the environment, which currently require a Certificate of Approval under Regulation 347 of the Environmental Protection Act (EPA), shall meet the following conditions prior to startup:
• confirmation from the local municipality that the facility complies with local zoning by-laws and that these facilities are not in close proximity to schools, hospitals, correctional facilities, high density residential areas and similar sensitive sites, and
• confirmation from the local fire department that the facility is in compliance with fire safety requirements, including appropriate security measures, an approved fire safety plan, floor and site plans, an inventory of materials, and company personnel have been adequately trained in the fire safety plan and emergency procedures.
For existing facilities, which are regulated under Regulation 347 of the Environmental Protection Act (EPA), where a fire could have a significant impact on the environment, the above-noted conditions must be met within a maximum of 12 months as a condition of continued operation. Where facilities are located near sensitive areas, additional features may be required to further reduce risks.
The Certificate of Approval be subject to cancellation if the operator of the facility does not maintain significant fire safety requirements originally provided with the approval. Alternative enforcement mechanisms for regulating existing facilities and for dealing with existing non-compliance may need to be considered.
Ministry of Environment and Energy (MOEE) has the mandate to licence certain facilities that have the potential for environmental damage.
Ensuring the waste handling facility is in compliance with applicable fire safety provisions, including floor and site plans and having an approved fire safety plan, before a business starts up will reduce the potential for fires to occur and minimize the impact should a fire occur.
Close proximity of such facilities to public buildings such as hospitals, schools, nursing homes and correctional facilities could pose a significant health and safety threat to the occupants, should a fire occur at a waste handling or recycling facility.
As vandalism and arson are significant concerns with these facilities, security measures will be a key provision that must be provided and maintained.
Recycling and waste handling facilities where a fire could have a significant impact on the environment that do not require a Certificate of Approval under Regulation 347 of the EPA, require similar identification and control measures, as outlined in Recommendation 1.
(Note: Facilities, similar to Plastimet, which process recyclable materials as defined in Regulation 347 under the EPA, are presently not required to obtain a Certificate of Approval. However, other requirements under the EPA apply. One mechanism that may be available to provide these identification and control measures is known as the Standard Approval Regulations. These regulations may be used to set out minimum requirements for these facilities.)
Identifying these facilities and requiring them to satisfy certain control measures, would significantly enhance fire safety at these facilities and minimize any environmental impact from a fire.
Examine the viability of establishing a provincial contingency fund enabling fire officials to promptly take action, to reduce the risk to the public in the event of a fire, where the Fire Code Commission has authorized the work be done.
In the absence of a contingency fund, the municipality would have to underwrite the costs associated with any necessary corrective action taken by them, to safeguard the public safety and the environment. This would discourage many municipalities, particularly smaller ones, from taking any action. It is intended this fund only be used in cases where the owner is unable or unwilling to accept responsibility and where a municipality meets the criteria for access to the fund (criteria to be developed).
Powers under the Fire Marshals Act have been used to correct significant hazards at tire storage facilities in Windsor and Orillia. These sites had the potential to significantly impact the communities.
In extreme cases, the Fire Marshal can close a building or premise where significant threats exist to public safety or the environment. The Fire Protection and Prevention Act, 1997 has now clarified the previous authority under the Fire Marshals Act to take appropriate action including the closing of a building or premises when a fire, if started, would seriously endanger the health or safety of any person or the quality of the natural environment for any use that can be made of it. In addition, if there is an imminent threat that would not be addressed by closing the building, other immediate corrective action may also be ordered to mitigate potential risks, such as posting a fire watch or removing certain hazardous materials.
Parts 3 and 5 of the Ontario Fire Code (OFC) be updated. In addition, Part 4 be added to address the storage and handling of flammable and combustible liquids.
(Note: The OFM has begun preliminary work on updating Parts 3 and 5 of the Ontario Fire Code. Work on Part 4 is nearly completed.)
Appropriate revisions to the Ontario Fire Code, especially Parts 3, 4 and 5, would ensure all hazards were adequately addressed and the requirements clearly stated. Clearer and more detailed requirements would give owners much better direction, as to what is required of them, and would make enforcement easier and less expensive for the fire service.
Although flammable or combustible liquids were not involved in the Plastimet fire, there are numerous waste handling and other facilities storing considerable quantities of flammable and combustible liquids. These would have a serious effect on the environment if a fire occurred. To prevent a situation similar to the Plastimet fire from occurring at one of these facilities, it is important the Ontario Fire Code be amended to address these risks.
Consultations with the industry indicated fire safety measures should be based on risks associated with the materials being stored and processed, rather than by industry sector. Their concern was that they should not be economically disadvantaged when compared to their competition that process new materials. The National Fire Code treats these different materials equally based on risk. Adopting National Fire Code requirements, with appropriate amendments, will accomplish this objective within Ontario.
Changes to the Ontario Fire Code will include empowering the Chief Fire Official to accept alternative measures to the specific requirements, where an appropriate level of fire safety will still be maintained. This will remove an unnecessary barrier to the use of new technology or procedures
Municipalities be allowed to retain fines from the prosecution of offences under the Fire Marshals Act or Ontario Fire Code.
(Note: Amendments to the Provincial Offences Act currently before the Legislative Assembly, will provide for fine-sharing between the Province and municipalities provided municipalities enter into required agreements. While this is not yet legislation, it is an indication of possible directions that address local municipal needs.)
In Ontario, all fines are collected by the Province including fines from municipal prosecutions. An exception to this rule is found in the prosecution powers under the Building Code Act, where fines may be kept by the municipality.
Allowing the municipality to retain the fines from successful prosecutions will help defray the high costs of prosecution and encourage the municipality to pursue more inspection and enforcement functions. An enhanced and more vigorous enforcement program will encourage more owners to comply because they will know the probability of prosecution is much greater.
Although the total of all fines assessed during municipal prosecutions under the Fire Marshals Act and Ontario Fire Code, can range from $200,000 to over $400,000, an estimated 15% collection efficiency results in only $30,000 to $70,000 being collected per year.*
* Fire Marshals Report to the Solicitor General - Public Fire Safety and Legislative Reform in Ontario)
Increase the fines for Ontario Fire Code violations from $50,000 to $250,000 for corporations.
Courts appear to assess fines as a percentage of the maximums set out in the legislation. Therefore, increasing the maximum fine by a factor of five, will likely result in a typical Ontario Fire Code fine increase from $200 to $1000. In today's business milieu, modest fines are not a sufficient incentive for business owners to expend a larger sum to obtain necessary compliance; in other words, some owners may consider it a cost of doing business.
Under the Occupational Health and Safety Act, penalties upon conviction are set at not more than $25,000 or 12 months imprisonment, for individuals and $500,000 for corporations.
Under the EPA, a corporation convicted of discharging a contaminant, or not complying with an order, may be fined not more than $200,000 on a first conviction, and not more than $400,000 on each subsequent conviction.
This recommendation attempts to bring the Ontario Fire Code fine levels closer to those found in other provincial legislation. No change is proposed to the individual category of fines.
Consideration be given to making owners/directors personally liable and subject to fine or imprisonment, similar to provisions set out in other provincial legislation, where the company starts business or continues to operate without complying with the identification and control measures outlined in Recommendations 1 and 2. Upon conviction, the owners/directors be subject to a minimum fine.
Holding the owners/directors of the facility personally liable to fines or a jail term, and imposing a minimum fine, will reduce the likelihood these persons can simply walk away from these sites, or hide behind protections afforded under business legislation. Directors and officers of corporations are held personally liable under other provincial legislation
Training seminars be provided for crown attorneys and members of the judiciary to help them understand the importance appropriate penalties carry in preventing environmental fires.
A few large fines will increase the incentives to owners to comply with the legislation. One method of achieving this is by increasing the awareness of crown attorneys and the judiciary,
as to the importance of compliance with the Ontario Fire Code. Training seminars should help to achieve this objective.
The Office of the Fire Marshal in consultation with other ministries, fire services and the recycling industry, develop a training program for the recycling industry, municipalities, fire service and emergency responders. This program's objective will be to enhance their competence in dealing with legislative requirements, fire and environmental hazards associated with these products, fire safety plans, and preplanning.
A comprehensive training program would help to alert municipalities, the fire service, other emergency responders and operators of recycling and waste handling facilities to:
• the special hazards associated with fires at recycling and waste handling plants,
• the legislative authority and requirements which must be met, and
• the safeguards which should be provided to prevent or mitigate the effects of such fires.
The program would also provide clarification as to the roles of the various enforcement agencies and the most efficient and effective means of achieving compliance.
A training program is needed to increase the awareness of the fire service with the complexity and degree of hazard so that they may better match enforcement options to the risk. These enforcement options may include the closing of a building or premises, when a fire would create a threat to public safety or the environment.
To enhance prevention activities, the Office of the Fire Marshal, in consultation with other affected and interested ministries, establish a protocol to co-ordinate enforcement activities and enhance information sharing.
Coordinated enforcement would result in more effective and timely resolution of violations of critical fire safety requirements.
Although the primary responsibility for managing these fire risks lies with the municipality, there are times when it is appropriate that provincial authorities receive immediate notification, so that appropriate support mechanisms can be considered.
Technical advice provided early in an emergency can make a key difference to the outcome.
This protocol will identify key provincial resources that may be made available to municipalities. For example, an inspector from the Ministry of Labour may identify, during the course of a regular inspection of a waste handling facility, violations of the Ontario Fire Code. This protocol would require the inspector to notify the local fire department and other affected ministries to achieve a coordinated enforcement action under the most appropriate and effective regulatory requirements.
Ontario's waste handling and recycling industry be encouraged to establish an industry-wide council to set industry codes of practice and foster good business practices.
Getting the industry leaders involved in developing such codes of practice , that meet or exceed the requirements set out in the regulations, would enhance the professional image of this sector. This should help achieve voluntary compliance from within as opposed to it being forced on them. This approach will also set out the industry standards for protection of the public and environment, thus, establishing criteria to which due diligence may be evaluated.
This council could also become the forum for industry and relevant ministries to discuss
areas of mutual concern. It may also lend perspective to the development of public safety policies.
Another benefit of these activities includes the long term reduction in the need for enforcement activities, by municipal or provincial agencies.
Preliminary consultation has resulted in an agreement in principal with three major industry associations and company representatives to this concept. As well, they indicated willingness to assist government in developing training programs and codes of practice.
Provide resources to research, investigate and provide technical support to local fire departments in the identification, risk assessment and management of public safety and environmental impacts of fire.
Additional support to municipal fire departments could go a long way toward reducing risks to the environment and public. There is also a need for the Office of the Fire Marshal to conduct research and develop standards and evaluation criteria for the fire service, to assist municipal fire departments in the initial identification of major public safety or environmental concerns. Additional training programs for municipal fire services will facilitate interpretation of the regulations and identification of situations where referral to the OFM is advisable. This includes the review of proposed hazardous material storage facilities, and the review of existing sites to assess conformity with the Ontario Fire Code.
Investing in preventive measures has proven to yield dividends that far exceed the potential cost impacts of fires. Therefore, resource commitments to enhance prevention measures is an investment in Ontario's future.