Additional information in support of ECAs with operational flexibility

Part D: Additional information in support of ECAs with Operational Flexibility

Part D of this guide provides the following details about further technical requirements if you have applied for an ECA with Operational Flexibility (formerly known as Limited Operational Flexibility):

• What Operational Flexibility is
• General requirements for Operational Flexibility
• Additional Environmental Bill of Rights (EBR) notification requirements for ECAs with Operational Flexibility
• Special requirements when applying for an ECA with Operational Flexibility for specific types of projects

An ECA with Operational Flexibility permits you to make some modifications to your facility’s operations or works without having to seek an amendment to the ECA. These modifications would be for specific, predefined aspects or within a specific, predefined limit of a key parameter, like an emissions limit. The following projects are eligible for an ECA with Operational Flexibility:

• a project with air emissions
• a project with noise
• a project with sewage works
• a waste transfer and/or processing site
• other projects will be considered on a case by case basis

The application review will include an evaluation of the technical merits of the application and compliance of the proposal with the applicable regulatory requirements as well as other considerations that may include:

• compliance history of the site/owner
• ministry concerns
• municipal and conservation authority concerns
• public interest in the application

Consolidated Linear Infrastructure

Municipalities with Consolidated Linear Infrastructure Permissions Approach (CLI) ECAswill no longer need to submit individual applications for many future alterations, provided they meet specific conditions. For more information, you can read the decision notice on the Environmental Registry of Ontario or contact us at enviropermissions@ontario.ca.

General requirements when applying for Operational Flexibility

When submitting an application for an ECA with Operational Flexibility you must meet the following specific requirements in addition to the other requirements detailed in this guide:

1. Your EBR posting for a project requesting Operational Flexibility must specify the flexibility you will be applying for. (For more information, see EBR Proposal Abstract for ECAs with Operational Flexibility).
   • You must define the operational envelope for the project.
   • For projects that have air or noise requirements, in defining the operational envelope you must include:
     • a description of the unit processes at the facility
     • the overall facility production limit or capacity
2. When applying for an ECA with Operational Flexibility for waste there is a requirement for a defined operational envelope in a design and operations report.
3. If your project includes sewage works, in addition to the consultation with the district office, you must consult with the local municipality to confirm that your project meets local zoning rules. You must provide evidence of the conformance with the zoning rules.
4. If your project includes sewage works, a pre-determined number of modifications to existing sewage works will be allowed and will be clearly noted in the ECA. When applying for an ECA with Operational Flexibility for sewage works there is a requirement for a defined operational envelope in an Engineer’s Report.

Please note that the final decision on an application for Operational Flexibility lies with the Director for the ministry and applications may be rejected for several reasons that include but are not limited to municipal concerns or increased public interest in the application. Applications that are rejected and are deemed ineligible may be assessed as an application for an ECA without Operational Flexibility.

Detailed project and process description – Implications for Operational Flexibility

All applications for an ECA must have a detailed project and process description.

The detailed description must include key information about the operational parameters that define the operating envelope of the activity as well as the main processes that occur at the facility and the main discharges to the natural environment. Any or all of these may inform what modifications may be made under your Operational Flexibility.

You should develop the project description with care, making it explicit enough to describe the operations that are conducted at the facility but with parameters that allow for flexibility.

Examples of Operational Flexibility

Operational Flexibility can be granted for different types of potential modifications. However, the details of the flexibility will depend on your project type. For example, an industrial sewage works project may apply flexibility differently than a waste transfer site because of specific issues with that project type or because certain project types may not be eligible for certain types of flexibility. Table 7 below shows some examples.

In all cases, any modifications under the flexibility would still have to comply with the terms and conditions in the ECA, such as effluent or discharge limits, consistency with the function of the approved proposal or pre-identified modifications in an engineer’s report and any other standards or legal requirements. For any modifications outside of the Operational Flexibility, you would need an amendment to your ECA.

The scope of the Operational Flexibility may cover:

• Modifications to equipment – this type of Operational Flexibility allows you to modify, add, upgrade or enhance processing operations or equipment, so long as the changes are consistent with the function of the approved operations, or to meet the requirements of the ECA. Such flexibility is not intended to be used for piecemeal measures that result in major alterations or expansions.
• Modifications to operational procedures – this type of Operational Flexibility allows you to make changes to the operations of the works that are consistent with the function of the approved operations. These modifications will be allowed as long as the operational methodology is not modified.
• Modifications that are routine – this type of Operational Flexibility allows you to make changes to activities outlined in your operational envelope, so long as the changes have predictable, environmentally insignificant effects or are considered administrative.
• Modifications to the infrastructure – this type of Operational Flexibility allows changes to the structural elements of the site, including buildings, grounds and utilities.
• Operational procedures and sewage works projects: A project with sewage works with Operational Flexibility will allow the ECA holder to implement a number of pre-approved modifications such as: changing like-to-like equipment; optimizing existing treatment processes; or installing or replacing instrumentation for chemical dosage. However, the ECA holder is not permitted to make modifications that:
  1. result in an increase of the rated capacity of the works
  2. adversely affect the effluent quality criteria or the location of the approved outfall
  3. are approved under section 9 of the EPA
  4. are pursuant to an order issued by the ministry

  Most importantly, modifications are not permitted when they are intended to be used as piecemeal measures that result in major alterations by expansions. Modifications that are exempt from s. 53 OWRA by Ontario Regulation 525/98 continue to be exempt and are not required to follow notification requirements under Operational Flexibility provisions.

EBR proposal abstract for ECAs with Operational Flexibility

If you are applying for Operational Flexibility, there are expanded sample templates for your project description executive summary, which serves as the EBR proposal abstract.

In addition to the basic information in the project description you must also clearly define the Operational Flexibility you are requesting.

For examples see: Sample Application Package for a Comprehensive Waste Transfer and Processing Facility Certificate of Approval and Sample Application Package for an Air & Noise Certificate of Approval and Sample Application Package for an Environmental Compliance Approval (Air & Noise) for a Laboratory.

In your project description executive summary, you must clearly identify that you are seeking Operational Flexibility. Clearly state that the proposal is for an ECA with Operational Flexibility and add any other details you think might be relevant to people reading EBR notices, including information about the operating envelope. For example, you must provide a summary of the main characteristics of the business, such as the type and quantity of waste or the main categories of emission sources (such as manufacturing operations, painting operations, etc.).

The ministry has developed standard templates for section 9 projects and waste disposal site projects shown in Appendix 3.

In addition, the ministry will include on the EBR additional information about the Operational Flexibility under consideration, including:

• what Operational Flexibility may allow.
• what Operational Flexibility will not allow.
• expiry conditions and renewal requirements, if any.
• ongoing requirements, such as monitoring and reporting or inspection availability.

Projects with air emissions

Facility production limit

Operational Flexibility allows an applicant to make modifications to a facility up to an approved facility production limit as long as the effects of these modifications meet the requirements of all other conditions of the ECA, most notably compliance with the performance limits. The facility production limit relates to the main product(s) produced at the facility and represents the design capacity of the facility’s operations.

Operational Flexibility does not allow an ECA holder to undertake modifications that would increase the facility production limit above the value specified on the ECA without first obtaining an amendment to the ECA.

You must provide a numerical value that represents the overall production limit or capacity of the facility. This production limit will be used by the review engineer to define a facility production limit that the ministry will place on the ECA.

Please refer to Basic Comprehensive Certificates of Approval (Air) user guide if additional information is required to establish the facility production limit.

Contaminants with no ministry POI limits

Once the Director has issued an ECA with Operational Flexibility and a new contaminant with no ministry POI Limit is identified, or the emission rate for a contaminant with no ministry POI Limit increases above what was previously approved, the ECA requires the holder to conduct a maximum concentration level assessment of the predicted concentration at the POI as a result of the proposed modification. (This process was also referred to as a maximum concentration level derived by the company). In general, the conditions in the ECA will require the ECA holder to:

• provide a maximum concentration level assessment for the facility based on the revised maximum emission rate scenario for the contaminant(s) in question;
• submit the maximum concentration level assessment to the ministry for review; and
• refrain from making the modification unless specifically permitted, in writing, by the Director.

Projects with noise

You must provide an Acoustic Assessment Report with your application for an ECA with Operational Flexibility (Noise).

If you wish to make a modification that may alter the noise emissions from the facility, you will have to demonstrate that the ministry noise guidelines will continue to be met after implementing the modification. Further information on the subsequent documentation requirements for such modifications can be found in the Basic Comprehensive Certificates of Approval (Air) User Guide.

Projects that include sewage works

Consultation with district office

If you are submitting an application for an ECA with Operational Flexibility for a sewage project, you are required to consult with the district office to discuss any site-specific issues that should be addressed in your application. You must identify in the supplemental application information section of the form the person who you consulted with at the district office. You may be ineligible for an ECA with Operational Flexibility if there is significant local concern, including a history of outstanding environmental issues or complaints.

Consultation with local municipalities

If you are submitting an application for an ECA with Operational Flexibility for a sewage project, you are required to carry out pre-consultation with the local municipal authorities (upper and lower tier, as appropriate) before submitting your application. The pre-consultation must include discussions with the municipality about how any local by-laws, site plan control agreements or other land use management instruments might affect your project’s operating envelope for the purposes of an ECA with Operational Flexibility.

Before submitting your application, you must address other concerns raised by the municipality. If a municipality expresses significant concerns about an application, the Director may consider the project ineligible for Operational Flexibility.

Preparation of an engineer’s report

If you submit an application for an ECA with Operational Flexibility for a sewage project, you are required to provide an engineer’s report that defines the project’s operational envelope. The engineer’s report is made available as part of the public record under the EBR. Any change to this engineer’s report will require an application to amend the ECA.

The engineer’s report must be prepared and stamped by a qualified professional engineer who must verify the details of the site design and operations and must include a statement of accountability indicating that the information presented in the report is accurate. Note that this engineer may also be the individual identified by the applicant as the technical contact.

The engineer’s report must contain:

1. Statements regarding the engineer’s commitment to specific engineering standards, design codes, ministry guidance documents and industry best management practices that the applicant will adhere to in making any changes to the site or works.
2. Details of any design constraints imposed on the site by municipal by-laws (including site plan control agreements), the Ontario Fire Code and the Ontario Building Code (for example, operating hours, noise by-laws, setbacks, pile height limitations, quantity and fire suppression) or conservation authorities (in the case of stormwater management).
3. Detailed identification and assessment of the changes that can be made to the site or works under the operational envelope for Operational Flexibility.
4. For sewage projects: appropriate conservation authority clearance and zoning approvals, as necessary.
5. A statement declaring that the proposed modifications would not likely to result in an adverse effect.

The following statement must be signed and dated by the engineer who prepared the engineer’s report:

I am a representative of (company name) and I am authorized and have the knowledge to make the following statements:

• I have used engineering or scientific principles in accordance with current and generally accepted ethics and practices, as recognized by members of environmental engineering or science professions/disciplines for sites in similar geographic locations.
• In preparing the engineer’s report, I have independently verified that details of the design and operations report and engineer’s report, and to the best of my knowledge, the information presented in the reports are accurate.
• I have not knowingly withheld any information necessary for the applicant and/or technical contact to complete the application.

The identified project technical contact for the application must sign both statements.

Projects that include waste

At a waste transfer and/or processing site, an ECA containing Operational Flexibility conditions may preauthorize certain future specified alterations, extensions, enlargements or replacements within a defined operating envelope without the need to request an amendment to an ECA. This preauthorization will allow businesses to proceed with modifications with known environmental impacts in a timely manner and adapt to market changes.

When applying for an ECA with Operational Flexibility, you will need to identify this by clearly defining the operating envelope and assessing possible environmental impacts from the future modifications, as outlined in the design and operations Report. Modifications that fall outside the terms and conditions in the ECA that were not considered by the Director in issuing the ECA will require an amendment. Prior to making any Operational Flexibility related modifications the ECA holder will be required to update the design and operations report, including the change log.

Eligibility for Operational Flexibility

Any applicant for a waste transfer and/or processing site can apply for Operational Flexibility. The ministry Director has discretion to determine what conditions within the application will be approved at the time of technical review and each application is assessed on a case by case basis. The request for Operational Flexibility must be included in the ECA application, regardless of the application type.

The application review will include an evaluation of the technical merits of the application and compliance of the proposal with the applicable regulatory requirements as well as other considerations that may include: compliance history of the site/owner, ministry concerns, municipal and conservation authority concerns and public interest in the application. The terms and conditions in the ECA will reflect requirements for the applicant needed to minimize environmental impacts and to ensure compliance with the regulatory requirements.

Applying for Operational Flexibility

To apply for an ECA with Operational Flexibility you will need to:

1. Read this Guide and this section on “Projects that include waste”, as well as Part C on applicable waste requirements and Part D on additional information in support of ECAs with Operational Flexibility.
2. Log-in to your Public Secure account to submit online and indicate if your application is for Operational Flexibility by checking the box next to the Project Type in the Project Information Tab.
3. Make sure you include copies of all required supporting documents as outlined in section 5 of this guide. The design and operations report template provides clarity on what is expected with your applications in terms of a site’s design and on-site operations and standardizes content and format.
4. Refer to the Checklist for Technical Requirements for a complete ECA submission to help you determine if you are ready to submit your application.
5. Refer to our guidance on how to apply for your ECA for more information.

Other ways to submit

You can also submit your ECA application by email if you cannot submit using Public Secure. To submit an ECA with Operational Flexibility by email you in need to:

1. Indicate in the application form that your application is for Operational Flexibility by checking the boxes under the application type, project type and supporting documentation.
2. Make sure you attach copies of all required supporting documents as outlined in section 5 of this guide. The Design and Operations report template provides clarity on what is expected with your applications in terms of a site’s design and on-site operations and standardizes content and format.

Applicant responsibilities

To request Operational Flexibility, the applicant is required to submit information within the application form and provide additional information in the design and operations report that will define the proposed operating envelope for the site when submitting an ECA application.

The scope of the Operational Flexibility request may include pre-authorization for approval for future specified alterations, extensions, enlargements or replacements of equipment, processes or structures. All these different types of changes are referred to in this document by the general term “modifications”.

In addition to the applicable requirements in Part C and Part D of this guide, your application for Operational Flexibility for waste transfer and/or processing sites should include:

• identification of the operating envelope and assessment of the proposed modifications
• a design and operations report that provides at minimum a conceptual design, and includes details related to the operations at the site for the waste management activities to be included in the operating envelope
• a completed application checklist, which is contained in the design and operations template, and statements by the applicant and the technical contact responsible for the design and operations report that the design and operations report verifies the merits of an application

For an applicant that is a private entity and is seeking Operational Flexibility related to waste storage (e.g. plans to increase the quantity of waste to be stored in the future), the ministry will require a financial assurance payment schedule based on the current amount of waste stored on site and anticipated increases in amount of waste to be stored on site. For information on how to calculate financial assurance, refer to the ministry’s F-15: Financial assurance guideline.

Identification and assessment of an operating envelope

When applying for an ECA with Operational Flexibility, you will need to provide specific information related to the design and operation of your site, including an assessment of possible environmental impacts. The proposal for Operational Flexibility must be consistent with the primary function of the site.

Details on the operational envelope should be included in specific sections of your application and the design and operations report. To define the operational envelope, you will need to provide details about your site, including design, processes, equipment, materials, capacities, and any planned modifications. An operational envelope can be described by the project’s boundaries, design capacity of the site’s operations, or equipment and/or process information or descriptions regarding the site. Operations or activities outside these parameters would not be covered by the Operational Flexibility within the ECA, since the ministry would not have considered them in issuing the ECA and would require a future application to amend the ECA. Further information on the minimum detail required in the design and operations report is outlined in Part C of this guide. The design and operations report template is available by request from the ministry.

As an example, if you are seeking Operational Flexibility for increases to the amount of waste that is stored on-site, you will need to identify and define in the application, the maximum quantity of waste that can be stored on the waste transfer and/or processing site as well as details and calculations for all of the locations where waste can be stored. If the plans are to operate the site with a storage amount below the approved limit, then you must identify a series of waste storage levels that it may operate under.

Another example is to accommodate peak periods when there are higher amounts of waste received due to seasonal fluctuations in waste generation. You can apply for Operational Flexibility to utilize an annual average of waste that is received by providing specific information and details in your application. This includes an assessment in your application of the maximum daily amount of waste that the site can manage (process/transfer). This maximum throughput will be identified in the ECA as a threshold daily receiving limit. The maximum quantity of waste that is to be received at the site on an annual basis must also be identified. An ECA with Operational Flexibility will allow you to receive the maximum annual amount of waste while not exceeding the daily threshold limit.

Sample proposal for an ECA with Operational Flexibility for a waste disposal site.

Table 1: Example of types of eligible modifications and required descriptions

Table 1 provides guidance on the general types of possible modifications allowed under Operational Flexibility, and the information the ministry requires. Refer to the design and operations template to clarify what is and is not required to be provided with the application and what can be updated as modifications are made to the site.

Operational

Submitting details in the design and operations report

The extent to which Operational Flexibility is permitted by an ECA will need to be contained within the design and operations report. The design and operations report supports an ECA application and includes details about a site’s design, operation and the list of activities that will occur at the site.

The ministry has a new template for the design and operations report for waste transfer and/or processing sites that provides an outline of the minimum information expected. The new template clarifies the required information for a design and operations report for approvals with Operational Flexibility, such as the need to provide additional information on the operating envelope. Some of the required information is in figures and/or a table format (e.g. overall site summary, process and equipment by project phase, summary of waste types and volumes/amounts, daily and annual waste volume/amounts by type).

Tracking modifications

Additional terms and conditions within an ECA will apply when Operational Flexibility is approved for a site in order to ensure that the operations have minimal impacts on the environment and human health and safety, as any of the pre-approved modifications are made. The terms and conditions will depend on the scope of the approved activities, within the context of the site-specific considerations of the proposed Operational Flexibility. Similar activities at different sites may be subject to different conditions. The requirements will be ongoing and may be inspected by the ministry at any time.

The conditions will require that, prior to making any Operational Flexibility related modifications, the ECA holder will be required to update the design and operations report to reflect how the operation will look once changes are made, and track the modifications being made through the use of a change log.

Furthermore, the conditions will require that the ECA holder confirm and document that the site, after the proposed modification has been made, continues to comply with the ECA and any other applicable regulatory requirements. For example, a term and condition may require an update to any engineering drawings related to building modifications, or a revision to any storage calculations contained within the design and operations report. Updates to the design and operations report, including any operational procedures, will help demonstrate the site is operated in compliance with the terms and conditions in the ECA.

In addition, the ECA may require the ECA holder to maintain an up-to-date record of the quantities of waste that are received at the site and shipped from the site. This will help ensure the site is being operated in compliance with the annual waste limit and maximum daily threshold. The change log section of the design and operations report shall record all versions of the report and associated changes with the site in accordance with the terms and conditions, including Operational Flexibility, in the ECA. In the event of an inspection, the ministry should be able to track the changes made to the site through the use of the change log for the design and operations report and the ECA.

It will be the responsibility of the ECA holder to ensure that each proposed modification under the Operational Flexibility provisions is included in the description section of the design and operations report. All modifications that alter the site and result in changes to the original design or the operation of the site that were not considered by the Director in issuing the ECA will require an amendment to the ECA. Also, any change to the design and operations report that is not set out in the allowable modifications within the terms and conditions of the ECA, will require an amendment to the ECA.

Each modification to the design and operations report will require updates to the checklist and signatures contained within the report. Each planned modification should be done in consultation with the original technical contact for the design and operations report or a qualified technical consultant. The checklist should be signed and dated by both the applicant and the technical contact to ensure the modifications are within the allowable conditions of the current ECA.

Renewal of Operational Flexibility conditions in ECA

Under the Environmental Protection Act, the ministry’s signing Director has discretion to include expiry dates on terms and conditions of an ECA, including those that allow for Operational Flexibility. If an ECA holder does not incorporate the Operational Flexibility that was provided which includes installing equipment within a given timeframe, they will need to apply to amend their approval to extend this timeline. Aside from any conditions that an expiry date applies to , the rest of the approval remains in force after this expiry date.

Other requirements for applications with Operational Flexibility

You will also need to consider these other requirements for Operational Flexibility for an eligible waste transfer and/or processing site proposal:

Pre-submission meeting

The ministry strongly recommends requesting a pre-submission meeting to discuss your application requirements and request for Operational Flexibility. Learn more about pre-submission requirements for the regulated community in this guide.

Environmental Registry of Ontario posting

If the Environmental Bill of Rights, 1993 requires a proposal notice related to the ECA application to be posted on the Environmental Registry, you will need to submit an executive summary describing the project and indicating that Operational Flexibility is sought as part of the application. This should include any details relevant to the Environmental Registry notice, including information about the proposed operating envelope. Learn more about EBR proposal abstracts in Part B, Section 3 of this guide.

Neighbour notification

Include a copy of the neighbour notification letter sent to residents potentially impacted by the proposal, including at a minimum the adjacent property owners and tenants, informing them of the proposal and that they can, within a prescribed timeframe (two weeks from the date of the notification), comment on the proposal by sending their input to the ministry. The comments should be sent to wasteproposalcomments@ontario.ca and include your company name, project name and project location in the email subject line (for example, Company ABC / XYZ Anaerobic Digestion Facility / City of Stratford).

First Nations and Metis Communities notification and consultation

Certain impacts on the protected Aboriginal rights, treaty rights or interests of First Nations or Métis communities could require consultation with these communities. Early consideration of whether your project could trigger Crown consultation obligations can help avoid delays at later stages of the approval process. For more information see Consultation with First Nations and Metis communities.

Mandatory consultation with local municipalities and conservation authorities.

When submitting an application for an ECA with Operational Flexibility for a waste project, you are required to carry out pre-application consultation with the local municipal authorities (upper and lower tier, as appropriate) and local conservation authority(ies). Issues related to drinking water source protection and flood plain management, if applicable, must be consulted on, before submitting the application. The pre-application consultation must also include discussions with the municipality about how any local by-laws, site plan control agreements or other land use management instruments might affect your project’s operating envelope for the purposes of an ECA with Operational Flexibility. Confirmation of zoning if available or status of any planning approvals or amendments should be submitted with the application.

Before submitting your application, you must address other concerns raised by the lower/upper tier municipality and/or the conservation authority and/or any other applicable agencies, if any. Refer to Part D for information on consultation with local municipalities.

Environmental assessment requirements

When submitting an application for an ECA with Operational Flexibility for a waste project, you need to ensure that the environmental assessment triggers from Ontario Regulation 101/07 do not apply to the proposed modifications or you will need to have met the EA requirements.