OFM - Waste Handling 6
9.0 EXISTING LEGISLATION AND ENFORCEMENT
9.1 Regulatory Framework
Over the years, to meet the impact of wide ranging public concerns and public perceptions regarding emergencies, the government has introduced legislation and regulations to control these challenges. As a result, there now exists a comprehensive regulatory framework to deal with all manner of public safety issues. Owing to the crossover of different jurisdictions and mandates, however, there are overlaps, gaps and barriers to ensuring an adequate level of fire safety in these facilities. This report attempts to analyse these issues.
Five Ministries today have a common interest in solving the challenges of public fire safety that falls within the scope of this report:
• Solicitor General and Correctional Services
• Environment and Energy
• Municipal Affairs and Housing
The Fire Marshals Act
Fire protection is delivered primarily by municipalities through local fire departments using authority given them in the Fire Marshals Act. Although the Office of the Fire Marshal (OFM) administers fire-related legislation and provides a variety of training and support programs to municipal fire departments, the local fire chief is responsible for day-to-day operations including enforcement of the Ontario Fire Code. In populated areas of the north where there are no organized municipalities, the OFM provides suppression training and equipment to volunteers through the Northern Fire Protection Program.
An Assistant to the Fire Marshal has the authority to issue Fire Marshals Orders under the Fire Marshals Act.
Amendments to Fire Marshals Act -1991 (Bill 131)
On November 7, 1991 Bill 131 was enacted amending the Fire Marshals Act. The ability of the Fire Marshal to provide the fire service with assistance to take immediate corrective action under the Fire Marshals Act (Bill 131) depends on prior knowledge that an environmental issue exists. Usually, a municipal fire department will inform the OFM of a fire-related environmental issue, and request the assistance of the OFM in applying the Fire Marshals Act.
The need for amendments to the Fire Marshals Act was illustrated by a major tire fire in Hagersville in 1990. At the time, it was difficult for authorities to take action to address the potential fire-related environmental hazard immediately, as an Order under the Environmental Protection Act was being appealed. The Order was upheld in part, but without a key fire control measure - the separation of the tires into smaller piles. The Order was subsequently appealed, however, the fire erupted before the appeal was heard.
Incidents of this nature occur periodically, and have demonstrated it is necessary to empower the fire service to take preemptive action to ensure adequate levels of life and environmental safety where a threat of fire exists. In the absence of such expanded authority, the ability of the fire service to prevent, or at least reduce, the impact of devastating social and environmental fire-related occurrences is limited.
The Fire Marshals Act now permits the fire service, with the approval of the Fire Code Commission, to take preemptive action in response to a serious threat to the environment and health and safety of persons from fire. It has expanded the authority of the fire service to issue a Fire Marshals Order in consideration of the potential consequences of a fire. This permits the fire service to take action where the likelihood of a fire may not be great, but the human and environmental consequences would be severe. Previously, the fire service was limited to considering the likelihood of a fire, and whether a fire would endanger other people or property.
Fire Protection and Prevention Act, 1997
Bill 84 received Royal Assent May 27, 1997, and is expected to become effective this fall. Entitled, "Fire Protection and Prevention Act, 1997", this bill contains the following provisions:
• Subsection 9(1) empowers the Fire Marshal to monitor municipal fire protection services and make recommendations, issue directives and guidelines;
• Section 14 provides enhanced powers of entry for the fire chief and Fire Marshal for the purpose of taking appropriate action or to collect evidence;
• Section 15 provides enhanced powers for the fire chief and the Fire Marshal to take action where immediate threat-to-life conditions exist, including removing persons from the premises;
• Section 19 clarifies entry powers for inspections;
• Subsection 21(2) streamlines and clarifies the provisions for orders to close premises;
• Section 25 streamlines the appeal process through the Fire Marshal and provides the Fire Marshal with more flexibility. These changes are meant to minimize the time taken to resolve such appeals (provided appropriate resources are available);
• Section 28 streamlines and clarifies the offenses under the Act and its regulations, thus, simplifying application;
• Sections 33 and 34 deal with the process for having the work done as required under the Fire Marshals Order, when the owner is unwilling to do it; and
• Sections 35 to 40 deal with cost recovery for clean-up operations.
The Ontario Fire Code
The Ontario Fire Code is a regulation made under the Fire Marshals Act that provides for fire safety for existing buildings. Article 126.96.36.199. of the Ontario Fire Code makes the owner responsible for compliance with the Ontario Fire Code.
Article 188.8.131.52. of the Ontario Fire Code requires that any activity creating a hazard, not allowed for in the original design, shall not be carried out in a building, unless provisions are made to alleviate the hazard are approved. This article is often used on a case-by-case basis when fire departments encounter these situations.
Section 2.8 requires a fire safety plan in an industrial occupancy if the building contains 4 storeys or more, including storeys below grade, or if the occupant load exceeds a specified number which varies with the specific occupancy.
The Ontario Fire Code contains requirements for the storage of various types of materials. In addition to the requirements for general indoor storage, there are specific requirements.
Part 3 - Industrial and Commercial Occupancies
• wood chips
• salvage yards
Part 5 - Hazardous Materials, Process and Operations
• cellulose nitrate
• ammonium nitrate
• compressed gases
• combustible fibers
• radioactive materials
Subsection 3.3.2. for general indoor storage and Section 3.5 for salvage shops and salvage yards, are the most applicable to a recycling plant operation. While the provisions of the existing Parts 3 and 5 of the Ontario Fire Code can be applied, they need to be updated and strengthened to control hazards at these special operations.
Subsection 3.3.2. applies to the "indoor storage of combustible or non-combustible solids with combustible packaging or storage aids to a height of 6.4m (20.1 ft.)". It has requirements relating to:
• the dimensions of individual storage piles,
• clearances between the piles and sprinklers, walls and the roof structure,
• fire access aisles, and
• the storage of combustible pallets.
Section 3.5 is aimed largely, but not exclusively, at automobile wrecking yards. It contains requirements for:
• fire department access,
• fire extinguishing provisions,
• hydrant systems,
• pile dimensions and clearances,
• control of ignition sources, and
• special requirements for the storage of combustible metals.
Depending on the situation, the Fire Marshal or an Assistant to the Fire Marshal can use one or more of the following options to address a hazardous fire condition:
1. work with the owner to obtain voluntary compliance with the Ontario Fire Code,
2. prosecute the owner for a violation of the Ontario Fire Code,
3. issue a Fire Marshals Order,
4. apply to the Fire Code Commission for authority to do the required work themselves,
5. take certain remedial action themselves, if there is an immediate threat to life, and
6. issue an Order to Close with the approval of the Fire Marshal.
Procedures identified in options 1 to 3 can take the longest period of time to achieve compliance. In extreme cases it can take more than a year to resolve the situation. Procedures outlined in option 4 can under optimum conditions result in resolution within a few weeks to a month. Option 5 can be implemented immediately, but can only be used if there is an immediate threat to life. Option 6 requires the approval of the Fire Marshal, but can also be implemented very quickly. A closure order requires the building or premises to be closed until the identified hazard is rectified. However, this only closes the building or premises, it does not necessarily remove all fire safety hazards.
Options 4 and 5 have the disadvantage of there being a cost to the municipality. Although there is a procedure for the municipality to recover its costs, it is often impossible to recover all of the costs, thereby reducing the municipality's desire to deal with these situations.
Working with the owner to achieve voluntary compliance
The Ontario Fire Code sets out minimum requirements for fire safety. Prosecution is used to achieve compliance. Legal proceedings can require substantial time including that of fire department personnel. Most fire departments would rather work with an owner to obtain voluntary compliance. In many cases, by working with the owner they can achieve compliance, with less drain on their resources and in less time, than following the current system of prosecution. With this approach, it is not uncommon for owners to upgrade fire safety deficiencies, which are not actual violations of the Ontario Fire Code, at the same time they upgrade to comply with the Ontario Fire Code. Many departments believe the money spent by the owner paying a fine would be more usefully spent eliminating the fire hazard.
When a fire inspector finds a violation of the Ontario Fire Code during an inspection, the usual procedure is to first issue an Inspection Report identifying the deficiency and required action. This is usually discussed with owners to make sure they understand the problem. If this does not result in action, then a Notice of Violation will be issued which specifies the relevant article in the Ontario Fire Code, the nature of the violation and the time frame for compliance. Not all departments issue an Inspection Report, some proceed directly to a Notice of Violation.
Neither of these documents is a legal document, but they do serve to clearly identify the nature of the violation, the date or dates on which the violation occurred and that the owner is aware of the violation. This can be useful if it is necessary to proceed to the final stage of the process - to prosecute the owner under the Ontario Fire Code.
Prosecution under the Ontario Fire Code
Article 184.108.40.206. makes the owner responsible for compliance with the Ontario Fire Code. Legally, the fire department can lay charges as soon as they find a violation of the Ontario Fire Code. There is no requirement for them to first inform owners that they are in violation and give them time to comply.
However, in practice, it is very rare for the fire department to lay charges immediately. To lay charges, the fire department must:
1. conduct an inspection and identify the hazard (may involve obtaining a search warrant),
2. document the inspection,
3. do a title search,
4. swear out a Provincial Offence Information document with a Justice of the Peace,
5. prepare a written brief for the Provincial Prosecutor or Crown, and
6. testify in court.
The process involves considerable additional work for the fire department, with no guarantee there will be a conviction. Even if there is a conviction, the fines frequently are minimal and, in many cases, are never paid. At the moment, in no case do the fines revert to the municipality. As well, the conviction may be appealed to add further delay. The whole process could take anywhere from several months to well over a year, from the date of first inspection to the date of conviction. After all this effort, the fire hazard may still exist and the fire department will have to go to court again, to get a court order requiring the work be done.
The amount of person hours consumed can be particularly critical for small or volunteer departments. In small towns, and particularly with volunteer fire departments, there is frequently a reluctance to lay charges.
Fire Marshals Act
Not all fire hazards are identified in the Ontario Fire Code. When fire inspectors find a hazard which cannot be dealt with using the Ontario Fire Code, they have the authority to issue a Fire Marshals Order, if the following criteria in the Fire Marshals Act are met:
"18.(2) If, upon the inspection, it is found that a building or other structure is for want of proper repair or by reason of age and dilapidated condition or any other cause especially liable to fire, or is so situated as to endanger other buildings or property, or so occupied that fire would endanger other buildings or property, or so occupied that fire would endanger persons or property therein or that exits from the building or buildings are inadequate or improperly used, or that there are in or upon the buildings or premises combustible or explosive materials or conditions dangerous to the safety of the buildings or premises or to adjoining property, or that a provision of the Ontario Fire Code is being contravened, or that a fire, once 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, the officer making the inspection may order,..."
Because this is a discretionary order, limits are placed on what remedial action the officer may order. The officer is only permitted to order:
"(a) the removal of the buildings or the making of structural repairs or alterations therein;
(b) the removal of combustible or explosive material, or the removal of anything that may constitute a fire menace;
(c) the installation of safeguards by way of fire extinguishers, fire alarms and other devices and equipment and also such avenues of egress, fire escapes and exit doors as are considered necessary to afford ample exit facilities in the event of fire or an alarm of fire;
(d) with the approval of the Fire Marshal and on the terms and conditions that the Fire Marshal considers proper, the closing of the buildings, other structures or premises until the time that corrective action has been taken and the hazardous condition has been rectified; and
(e) the remedying of any contravention of the Ontario Fire Code."
Within these limits, fire inspectors may order anything they think is justified to correct the hazard. Because of the discretionary nature and broad latitude permitted by a Fire Marshals Order, an Order can be appealed. The first level of appeal is to request an Informal Review by the Office of the Fire Marshal (OFM). If owners are not satisfied with the results of the Informal Review, they may appeal the order or the Informal Review to the Fire Code Commission.
Request for Authority to do the Work Required under the Fire Marshals Order
Until 1991, a Fire Marshals Order could only be issued if the probability of fire was high. In 1991, the Fire Marshals Act was amended (by Bill 131) to include provisions for issuing Orders when the probability of fire was low, but the environmental consequences of a fire were severe. Where the environmental threat is significant and the owner is unwilling or unable to comply with the Order, these amendments enable the fire department to apply to the Fire Code Commission for authorization to do the work themselves as specified in the Order.
Immediate Threat to Life
Where there is an immediate threat to life, there is also provision for the fire department to enter the premises without a warrant, to do work to remove or reduce the immediate hazard. Because this work is being done without the owner's permission, or in some cases knowledge, strict limits are placed on what the fire department is permitted to do.
When the fire department completes work, either with the authorization of the Fire Code Commission or as a response to an immediate threat to life, there is a procedure for the municipality to recover their costs from the property owner. However, if the owner does not have sufficient financial resources and the cost of cleanup exceeds the property value, then the municipality will not be able to fully recover their costs. Since the cost of cleaning up a hazardous waste site can be several hundred thousand dollars, many municipalities, particularly smaller ones, are reluctant to assume this financial burden.
Order to Close
A Fire Marshals Order to Close is a method that can be quickly implemented by an Assistant to the Fire Marshal when there is a serious fire safety hazard that poses an immediate danger to life or the environment. This order can only be issued with the approval of the Fire Marshal. An order to close may be considered when:
• the building or premises are especially liable to fire,
• a fire could seriously endanger persons,
• a fire could seriously damage the natural environment,
• the persons responsible for the building or premises are unable or unwilling the alleviate the hazard immediately, and
• all other reasonable avenues have been pursued to alleviate the hazard but have proven unsuccessful.
An Order to Close would not be used where temporary or readily implemented measures such as posting a fire watch and eliminating ignition sources would alleviate the hazard.
Fire Code Commission
The Fire Code Commission is an independent Commission of individuals with expertise in some area of fire protection or environmental protection, and who are not persons in the public service of Ontario or of a municipality. The owner and the fire department can each present their side of the case at a hearing. The Commission also has the authority to uphold, rescind or modify the original Fire Marshals Order or the Informal Review.
If owners are not satisfied with the decision of the Fire Code Commission, they may appeal to Divisional Court, but only on matters which are not a question of fact alone.
If an Order is appealed, then the Order is stayed and the owner does not have to do any work until the appeal is dealt with. If they want, owners can usually drag this process out for several months or longer. The Fire Code Commission has the authority of lifting of a stay pending the outcome of the appeal, where, in its opinion, the action is necessary in the interest of public safety.
Emergency Measures Ontario
The mandate of Emergency Measures Ontario is to monitor, coordinate and assist with the formulation and implementation of emergency plans in Ontario on behalf of the Solicitor General. The ongoing responsibilities of the branch include:
• coordination of provincial emergency management;
• the formulation and implementation of The Provincial Nuclear Emergency Plan and the Provincial Emergency Plan (non-nuclear); and
• liaison and coordination of emergency preparedness and response measures with municipalities and the Government of Canada.
The Emergency Plans Act, 1983
, supported by other Acts, orders and by-laws, govern the formulation and implementation of emergency plans in Ontario. The Emergency Plans Act details the legislative authority for emergency planning by ministries and municipalities and the implementation of those plans during an emergency.
Emergency Measures Ontario is responsible for emergency preparedness and response activities throughout Ontario. Emergency preparedness includes plans, scientific and technical advice, training, exercises and public education. Emergency response includes the provision of liaison, advice and assistance, and the coordination of resources to respond to a major emergency.
The Provincial Preparedness Program manages the Provincial Nuclear Emergency Plan and the Provincial Emergency Plan (non-nuclear), coordinates interministry emergency preparedness activities, coordinates preparedness activities for emergencies assigned as the special responsibility area of the Solicitor General and Minister of Correctional Services, provides scientific advice, delivers training for provincial officials and conducts a provincial exercise program.
The Community Preparedness Program provides advice and assistance to municipalities for the development of community emergency plans and exercises, conducts emergency preparedness training for municipalities and provides liaison, advice and assistance to support community emergency response when required.