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ONTARIO REGULATION 284/13
made under the
NUTRIENT MANAGEMENT ACT, 2002
Made: October 23, 2013
Filed: October 25, 2013
Published on e-Laws: October 25, 2013
Printed in The Ontario Gazette: November 9, 2013
Amending O. Reg. 267/03
(GENERAL)
1. (1) The definition of “Building Code” in subsection 1 (1) of Ontario Regulation 267/03 is amended by striking out “350/06” and substituting “332/12”.
(2) The definition of “farm feed” in subsection 1 (1) of the Regulation is amended by striking out “subparagraphs 7 iv and v and paragraph 8” and substituting “and subparagraphs 7 iv, v, viii and ix”.
(3) The definition of “regulated mixed anaerobic digestion facility” in subsection 1 (1) of the Regulation is revoked and the following substituted:
“regulated mixed anaerobic digestion facility” means a mixed anaerobic digestion facility that is regulated under Part IX.1 and is not subject to,
(a) an environmental compliance approval issued in respect of an activity mentioned in subsection 27 (1) of the Environmental Protection Act, or
(b) a renewable energy approval issued under the Environmental Protection Act in respect of an anaerobic digestion facility; (“digesteur anaérobie mixte réglementé”)
2. Subsection 8.3 (1) of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:
Exemption, Part V of Environmental Protection Act
(1) A NASM plan area that satisfies the following requirements is exempt, in accordance with section 5.0.2 of Regulation 347 of the Revised Regulations of Ontario, 1990 (General — Waste Management) made under the Environmental Protection Act, from Part V of that Act and from that Regulation:
. . . . .
3. Subsection 20 (4) of the Regulation is amended by striking out “an agricultural or non-agricultural operation” and substituting “an agricultural operation”.
4. The Regulation is amended by adding the following section:
Activities requiring amendment
22.1 (1) This section applies if a nutrient management strategy that is in force for an agricultural operation contemplates mixed anaerobic digestion in a regulated mixed anaerobic digestion facility in which at least 75 per cent, by volume, of the total amount of anaerobic digestion materials treated are on-farm anaerobic digestion materials.
(2) No person shall treat anaerobic digestion materials in the facility if less than 75 per cent, by volume, of the total amount are on-farm anaerobic digestion materials, unless,
(a) an amendment to the strategy is prepared to reflect the decrease in the percentage of on-farm materials treated; and
(b) the amendment is submitted to a Director for approval and approved by the Director.
(3) Section 17 applies in respect of the amendment, with necessary modifications and with the additional modifications set out in subsections (4), (5) and (6).
(4) Despite clause 17 (1) (b.1),
(a) the amendment is not required to contain a contingency plan;
(b) an update to the existing contingency plan, accounting for the changes to the agricultural operation that would result from the change in the percentage of on-farm materials, must be prepared before the amendment is submitted for approval; and
(c) the update to the contingency plan comes into effect if and when the amendment is approved.
(5) Despite subclause 17 (1) (b.2) (ii), the declaration must state,
(a) that the proposed amendment is complete;
(b) that it provides an accurate description of the proposed change in the percentage of on-farm materials;
(c) that it provides an accurate description of the changes to be made to the facility as a result of the proposed change in the percentage of on-farm materials; and
(d) that the amendment has been prepared in accordance with this Regulation, the Nutrient Management Protocol and the Sampling and Analysis Protocol.
(6) Despite subsection 17 (2), the amendment must account for the total quantity of prescribed materials that are suitable for application to land as nutrient and that it is reasonable to expect will be generated in the course of the operation, in each remaining year for which the strategy is prepared.
(7) Section 28 applies in respect of the amendment, with necessary modifications.
5. The French version of subparagraph 2 ii of section 52.10 of the Regulation is amended by striking out “représentant” and substituting “mandataire”.
6. (1) Subsection 71 (3) of the Regulation is amended by adding the following clauses:
(b.1) designs the construction or expansion of the facility to minimize leakage, to minimize corrosion and to be structurally safe and sound;
(b.2) designs the construction or expansion of the facility to minimize the discharge of noise from it;
(2) Section 71 of the Regulation is amended by adding the following subsection:
(4) Clauses (3) (b.1) and (b.2) apply to construction and expansion that is commenced on or after October 25, 2013.
7. Section 98.2 of the Regulation is revoked and the following substituted:
Compliance
98.2 A person who owns or controls an agricultural operation that treats off-farm anaerobic digestion materials through mixed anaerobic digestion on a farm unit on which the agricultural operation is carried out shall ensure that, in relation to the operation,
(a) the requirements of this Part are met; or
(b) the requirements of sections 98.11 and 98.12 are met and,
(i) the terms and conditions included in an environmental compliance approval issued under the Environmental Protection Act in respect of an activity mentioned in subsection 27 (1) of that Act are met, or
(ii) the terms and conditions included in a renewable energy approval issued under the Environmental Protection Act in respect of an anaerobic digestion facility are met.
8. The Regulation is amended by adding the following section:
Setbacks
98.2.1 (1) On and after October 25, 2013, no person shall construct, on a farm unit on which an agricultural operation is carried out, a regulated mixed anaerobic digestion facility that is located,
(a) within 200 metres of a dwelling;
(b) within 450 metres of a residential area; or
(c) within 450 metres of a commercial, community or institutional use.
(2) For the purposes of subsection (1), the location of the dwelling, residential area or commercial, community or institutional use shall be determined as of the day on which the nutrient management strategy contemplating the construction of the facility is submitted to the Director for approval.
(3) Subsection (1) does not apply if the agricultural operation that is carried out on the farm unit includes growing, producing or raising farm animals.
(4) Clause (1) (a) does not apply if the dwelling is located on the farm unit.
(5) Clause (1) (c) does not apply if the commercial, community or institutional use is located on the farm unit.
9. Section 98.4 of the Regulation is amended by adding the following paragraph:
2.1 Materials shall not be received at the operation before 7 a.m. or after 7 p.m. on any day.
10. (1) Subsection 98.5 (2) of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:
(2) A person who receives off-farm anaerobic digestion materials shall obtain results of an analysis of the materials in each of the following circumstances:
. . . . .
(2) Paragraph 1 of subsection 98.5 (2) of the Regulation is revoked and the following substituted:
1. It is the first time since July 26, 2007 that the person receives materials generated by that particular generator.
(3) Subsection 98.5 (4) of the Regulation is revoked and the following substituted:
(4) If an analysis determines that the concentration of metal in off-farm anaerobic digestion materials exceeds the maximum metal concentration set out in the Table to this section, no person shall receive the materials on the farm unit, except as set out in subsection (5).
(5) A person may receive on the farm unit off-farm anaerobic digestion materials with concentrations of copper, zinc or both that exceed the maximum metal concentration set out in the Table to this section, if the following conditions are met:
1. The results of an analysis of the off-farm anaerobic digestion materials, obtained in accordance with subsections (2) and (3), show that the concentration of metal in the materials does not exceed 400 mg/kg of total solids, dry weight for copper and 700 mg/kg of total solids, dry weight for zinc.
2. The results of an analysis of the materials being treated in the regulated mixed anaerobic digestion facility, obtained in accordance with subsection (6), show that the concentration of metal in the materials does not exceed the maximum metal concentration set out in the Table to this section.
3. The analysis described in paragraph 2 must be carried out each time results described in paragraph 1 are obtained.
(6) The results of an analysis of the materials being treated in the regulated mixed anaerobic digestion facility must be from a sample that has been collected within 14 days before the off-farm anaerobic digestion materials are received and each sample of materials must be analyzed for metal in accordance with the methods specified in the Sampling and Analysis Protocol.
(4) Section 98.5 of the Regulation is amended by adding the following Table:
TABLE
Column 1
Column 2
Regulated Metal
Maximum metal concentration in materials
(mg/kg of total solids dry weight)
Arsenic
13
Cadmium
3
Chromium
210
Cobalt
34
Copper
100
Lead
150
Mercury
0.8
Molybdenum
5
Nickel
62
Selenium
2
Zinc
500
11. Section 98.7 of the Regulation is revoked and the following substituted:
Requirements re biogas
98.7 (1) No person shall treat anaerobic digestion materials in a regulated mixed anaerobic digestion facility on a farm unit on which an agricultural operation is carried out unless,
(a) the facility is equipped with a gas combustion system that is capable of consuming the equivalent of 110 per cent of the biogas that the facility can generate;
(b) any gas storage cover installed in respect of the facility has a design permeability of less than 500 cm3/m2/day/bar; and
(c) there is compliance with subsection (3) or (4), as the case may be.
(2) The design permeability requirement in clause (1) (b) does not apply if the gas storage cover was installed in respect of the facility before October 25, 2013.
(3) If the regulated mixed anaerobic digestion facility is designed to generate biogas at a rate that does not exceed 50 m³/hour, a secondary gas burning facility must be available, but need not be located on the farm unit at all times, and must be used within 48 hours if the rate of release of non-combusted biogas exceeds 20 m³/hour.
(4) Subject to subsection (5), if the regulated mixed anaerobic digestion facility is designed to generate biogas at a rate that exceeds 50 m³/hour, a secondary gas burning facility must be available, must be located on the farm unit at all times, and must be used to prevent any release of non-combusted biogas.
(5) If a nutrient management strategy that contemplates mixed anaerobic digestion in the facility was approved before October 25, 2013,
(a) subsection (4) does not apply until the first day on which less than 75 per cent by volume of the total amount of anaerobic digestion materials that are being treated in the facility are on-farm anaerobic digestion materials; and
(b) until the day described in clause (a), a secondary gas burning facility must be available, but need not be located on the farm unit at all times, and must be used within 48 hours if the rate of release of non-combusted biogas exceeds 20 m³/hour.
12. (1) The English version of section 98.8 of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:
Generated materials
98.8 No person shall treat on-farm anaerobic digestion materials in a regulated mixed anaerobic digestion facility on a farm unit on which an agricultural operation is carried out unless the materials meet the following criteria:
. . . . .
(2) Paragraph 2 of section 98.8 of the Regulation is amended by striking out “1,000 nutrient units” and substituting “2,000 nutrient units”.
(3) The French version of subparagraph 3 ii of section 98.8 of the Regulation is amended by striking out “de tourbe” and substituting “de gazon en plaques”.
13. (1) Section 98.9 of the Regulation is revoked and the following substituted:
General requirements for treatment
98.9 (1) No person shall treat anaerobic digestion materials in a regulated mixed anaerobic digestion facility on a farm unit on which an agricultural operation is carried out except in accordance with the following rules:
1. No anaerobic digestion materials may be treated in the facility unless they are,
i. on-farm anaerobic digestion materials that meet the criteria set out in section 98.8, or
ii. off-farm anaerobic digestion materials that are received in accordance with sections 98.4 and 98.5.
2. Off-farm anaerobic digestion materials that have a dry matter content of less than 1 per cent may be added for treatment in the facility only if the anaerobic digestion materials that are already being treated in the facility have a dry matter content of at least 8 per cent. The dry matter content of the materials already being treated must be measured during the 24-hour period before the off-farm anaerobic digestion materials are added.
3. At all times at least 50 per cent, by volume, of the total amount of anaerobic digestion materials that are being treated in the facility must be on-farm anaerobic digestion materials.
4. At all times at least 50 per cent, by volume, of the total amount of on-farm anaerobic digestion materials that are being treated in the facility must consist of manure.
5. Subject to subsection (3), the average time anaerobic digestion materials are treated in the facility must be at least 20 days.
6. Subject to subsection (4), anaerobic digestion materials must be treated at no less than 35 degrees Celsius at all times.
7. All the biogas generated by the facility must be collected and treated in accordance with section 98.7.
8. The facility must have a device for monitoring the actual temperature at which the material is being,
i. treated, and
ii. heated in accordance with subsection (2), if that heating takes place in the facility.
9. The facility must be operated in accordance with a professional engineer’s design specifications.
10. Any sampling port for liquids that is used in respect of the facility,
i. must be installed using specifically designed gasketed fittings, such as tees, saddles, end caps and elbows, that are compatible with the material of the sampling port, and
ii. must have a primary shut-off valve and a secondary shut-off valve.
11. If the facility is designed to generate biogas at a rate that exceeds 50 m³/hr, it must have a device for monitoring whether the pressure relief device is open.
(2) Materials listed in Schedule 2 must be heated before or during treatment,
(a) for no less than one hour at no less than 70 degrees Celsius; or
(b) for no less than 20 hours at no less than 50 degrees Celsius.
(3) Despite paragraph 5 of subsection (1), anaerobic digestion materials may be treated in the facility for an average time of less than 20 days if,
(a) a professional engineer designs the facility such that it is capable of reducing the content of total volatile solids of the materials in the facility by at least 50 per cent in less than 20 days;
(b) the facility is built to the engineer’s design specifications; and
(c) the average time is equal to or greater than the shorter period of time specified by the professional engineer.
(4) Despite paragraph 6 of subsection (1), anaerobic digestion materials may be treated at less than 35 degrees Celsius if,
(a) a professional engineer designs the facility such that it is capable of reducing the content of total volatile solids of the materials in the facility by at least 50 per cent at a temperature that is less than 35 degrees Celsius;
(b) the facility is built to the professional engineer’s design specifications; and
(c) the anaerobic digestion materials are treated at a temperature that is no less than the temperature specified by the professional engineer.
(5) If a nutrient management strategy that contemplates mixed anaerobic digestion in the facility was approved before October 25, 2013, paragraphs 10 and 11 of subsection (1) do not apply to the facility until July 1, 2016.
(2) Subsection 98.9 (1) of the Regulation, as remade by subsection (1), is amended by adding the following paragraph:
12. A sign that provides the information set out in subsection (4.1) and can be read from the public road nearest to the facility must be posted on the farm unit.
(3) Section 98.9 of the Regulation, as remade by subsection (1), is amended by adding the following subsection:
(4.1) The sign required by paragraph 12 of subsection (1) must,
(a) indicate that an anaerobic digestion facility governed by this Regulation is located on the farm unit; and
(b) provide the name and contact information of the owner or operator of the facility.
14. (1) Paragraph 1 of subsection 98.11 (2) of the Regulation is amended by striking out “section 40” at the end and substituting “section 41”.
(2) Paragraph 4 of subsection 98.11 (2) of the Regulation is amended by striking out “section 50” and substituting “section 52.7”.
15. (1) Paragraph 2 of subsection 98.13 (1) of the Regulation is amended by striking out “and” at the end of subparagraph ii, by adding “and” at the end of subparagraph iii and by adding the following subparagraph:
iv. if the heating described in subsection 98.9 (2) did not take place on the farm unit where treatment took place in accordance with subsection 98.9 (1), the records described in subsection (1.1).
(2) Paragraph 6 of subsection 98.13 (1) of the Regulation is revoked and the following substituted:
6. A record of the date and duration of use, if any, of a secondary gas burning facility described in subsection 98.7 (3), (4) or (5).
(3) Section 98.13 of the Regulation is amended by adding the following subsection:
(1.1) The records referred to in subparagraph 2 iv of subsection (1) are,
(a) a statement by the person who heated the materials, identifying the off-site system where the materials were heated and indicating that they were heated,
(i) for no less than one hour at no less than 70 degrees Celsius, or
(ii) for no less than 20 hours at no less than 50 degrees Celsius; and
(b) a statement from a professional engineer indicating that the off-site system exists and is capable of heating materials as described in clause (a).
16. (1) Subsection 100 (1) of the Regulation is amended by striking out “issued under this section or a predecessor of this section” at the end.
(2) Clause 100 (2) (b) of the Regulation is revoked and the following substituted:
(b) satisfies the condition or conditions set out in,
(i) subsection (3), in the case of a first-time applicant or an applicant who held an agricultural operation strategy or plan development certificate that has been cancelled or has expired, or
(ii) subsection (5), in the case of an applicant who holds an agricultural operation strategy or plan development certificate that has not been suspended or cancelled and has not expired.
(3) Paragraphs 4 and 5 of subsection 100 (3) of the Regulation are revoked.
(4) Subsection 100 (4) of the Regulation is revoked.
(5) Section 100 of the Regulation is amended by adding the following subsection:
(7) Despite the amendments made to this section by subsections 16 (2), (3) and (4) of Ontario Regulation 284/13, this section, as it read on October 24, 2013, applies to a person who submitted an application under this section on or before that date.
17. Subsection 101 (1) of the Regulation is revoked and the following substituted:
Agricultural operation planning certificate
(1) No person who owns or operates an agricultural operation for which this Regulation requires a nutrient management strategy or nutrient management plan, and no person who is employed in such an operation, shall prepare a nutrient management strategy or nutrient management plan for the operation unless the person holds an agricultural operation planning certificate or an agricultural operation strategy or plan development certificate.
18. (1) Clause 102 (2) (b) of the Regulation is revoked and the following substituted:
(b) satisfies the condition or conditions set out in,
(i) subsection (3), in the case of a first-time applicant or an applicant who held a NASM plan development certificate that has been cancelled or has expired, or
(ii) subsection (4), in the case of an applicant who holds a NASM plan development certificate that has not been suspended or cancelled and has not expired.
(2) Section 102 of the Regulation is amended by adding the following subsection:
(6) Despite the amendments made to this section by subsection 18 (1) of Ontario Regulation 284/13, this section, as it read on October 24, 2013, applies to a person who submitted an application under this section on or before that date.
19. Section 103 of the Regulation is revoked.
20. (1) Subsection 104 (1) of the Regulation is revoked and the following substituted:
Broker certificate
(1) No person shall act as a broker in a transaction described in subsection (2) unless,
(a) in the case of an individual,
(i) he or she holds a broker certificate, or
(ii) another individual is his or her authorized agent, holds a broker certificate and complies with subsection (1.1);
(b) in the case of a corporation, an individual is its authorized agent, holds a broker certificate and complies with subsection (1.1).
(1.1) No person shall act as an authorized agent as described in subclause (1) (a) (ii) or clause (1) (b) unless he or she,
(a) has ongoing and regular involvement in the operational aspects of the principal’s broking operation; and
(b) has advised the Director, in writing, of the intention to act as the principal’s authorized agent.
(1.2) If a person holds a broker certificate or has an authorized agent as described in this section, the person’s employees and contractors may, on the person’s behalf, carry out the activities authorized by the person’s or agent’s broker certificate.
(2) Clause 104 (4) (b) of the Regulation is revoked and the following substituted:
(b) satisfies the condition or conditions set out in,
(i) subsection (5), in the case of a first-time applicant or an applicant who held a broker certificate that has been cancelled or has expired, or
(ii) subsection (6), in the case of an applicant who holds a broker certificate that has not been suspended or cancelled and has not expired.
(3) Subsection 104 (8) of the Regulation is revoked and the following substituted:
(8) An individual described in subclause (1) (a) (ii) or clause (1) (b) who ceases to be the principal’s authorized agent shall, within 15 days after the change, provide written notice of the change to the Director and to the principal.
(4) Subsection 104 (9) of the Regulation is revoked and the following substituted:
(9) Despite the amendments made to this section by subsections 20 (1), (2) and (3) of Ontario Regulation 284/13, this section, as it read on October 24, 2013, applies to a person who submitted an application under this section on or before that date.
(10) A person who is a corporation’s authorized agent on October 24, 2013 is not required to comply with clause (1.1) (a) until October 25, 2014.
21. (1) Subsection 105 (1) of the Regulation is revoked and the following substituted:
Prescribed materials application business licence
(1) No person shall engage in the business of applying prescribed materials to land described in subsection (2) unless,
(a) in the case of an individual,
(i) he or she holds a prescribed materials application business licence, or
(ii) another individual is his or her authorized agent, holds a prescribed materials application business licence and complies with subsection (1.1);
(b) in the case of a corporation, an individual is its authorized agent, holds a prescribed materials application business licence and complies with subsection (1.1).
(1.1) No person shall act as an authorized agent as described in subclause (1) (a) (ii) or clause (1) (b) unless he or she,
(a) has ongoing and regular involvement in the operational aspects of the principal’s business of applying prescribed materials; and
(b) has advised the Director, in writing, of the intention to act as the principal’s authorized agent.
(2) Clause 105 (3) (b) of the Regulation is revoked and the following substituted:
(b) satisfies the conditions set out in,
(i) subsection (4), in the case of a first-time applicant or an applicant who held a prescribed materials application licence that has been cancelled or has expired, or
(ii) subsection (5), in the case of an applicant who holds a prescribed materials application licence that has not been suspended or cancelled and has not expired.
(3) Subsection 105 (7) of the Regulation is revoked and the following substituted:
(7) An individual described in subclause (1) (a) (ii) or clause (1) (b) who ceases to be the principal’s authorized agent shall, within 15 days after the change, provide written notice of the change to the Director and to the principal.
(4) Subsection 105 (8) of the Regulation is revoked and the following substituted:
(8) Despite the amendments made to this section by subsections 21 (1), (2) and (3) of Ontario Regulation 284/13, this section, as it read on October 24, 2013, applies to a person who submitted an application under this section on or before that date.
(9) A person who is a corporation’s authorized agent on October 24, 2013 is not required to comply with clause (1.1) (a) until October 25, 2014.
22. (1) Subsection 106 (1) of the Regulation is amended by striking out “issued under this section or a predecessor of this section” at the end.
(2) Clause 106 (3) (b) of the Regulation is revoked and the following substituted:
(b) satisfies the condition or conditions set out in,
(i) subsection (4), in the case of a first-time applicant or an applicant who held a nutrient application technician licence that has been cancelled or has expired, or
(ii) subsection (5), in the case of an applicant who holds a nutrient application technician licence that has not been suspended or cancelled and has not expired.
(3) Section 106 of the Regulation is amended by adding the following subsection:
(7) Despite the amendments made to this section by subsection 22 (2) of Ontario Regulation 284/13, this section, as it read on October 24, 2013, applies to a person who submitted an application under this section on or before that date.
23. Clause 109.1 (a) of the Regulation is revoked and the following substituted:
(a) the applicant is or has been in contravention of the Act or this Regulation, or is or has been in breach of a condition of another certificate or licence issued under this Part;
24. (1) Paragraphs 1 and 2 of Schedule 1 to the Regulation are revoked and the following substituted:
1. Organic waste matter that,
i. is derived from the processing of animal feed, and
ii. contains no animal products.
2. Organic waste matter that,
i. is derived from the processing of animal feed,
ii. contains animal products, but only animal products that have been thermally denatured, and
iii. has a dry matter content of at least 70 per cent.
(2) Schedule 1 to the Regulation is amended by adding the following paragraphs:
11. Organic waste matter that,
i. is derived from the processing of pet food, and
ii. contains no animal products.
12. Organic waste matter that,
i. is derived from the processing of pet food,
ii. contains animal products, but only animal products that have been thermally denatured, and
iii. has a dry matter content of at least 70 per cent.
25. (1) Paragraph 1 of Schedule 2 to the Regulation is revoked and the following substituted:
1. Organic waste matter that is derived from the processing of animal feed and,
i. contains animal products that have not been thermally denatured, or
ii. contains animal products, whether thermally denatured or not, and has a dry matter content of less than 70 per cent.
(2) Paragraph 3 of Schedule 2 to the Regulation is amended by adding “unless it is described in Schedule 1” at the end.
(3) Schedule 2 to the Regulation is amended by adding the following paragraph:
5. Organic waste matter that is derived from the processing of pet food and,
i. contains animal products that have not been thermally denatured, or
ii. contains animal products, whether thermally denatured or not, and has a dry matter content of less than 70 per cent.
26. (1) Paragraph 3 of Schedule 3 to the Regulation is revoked and the following substituted:
3. Resins and plastics, except resins and plastics that are present in a material listed in Schedule 1 or Schedule 2 and do not exceed 0.5 per cent of the material, calculated on a dry weight basis.
(2) Paragraph 6 of Schedule 3 to the Regulation is revoked and the following substituted:
6. Source separated organics as defined in subsection 1 (1) of Ontario Regulation 160/99 (Definitions and Exemptions) made under the Electricity Act, 1998.
Commencement
27. (1) Subject to subsection (2), this Regulation comes into force on the day it is filed.
(2) Subsections 1 (1) and 13 (2) and (3) come into force on the later of January 1, 2014 and the day this Regulation is filed.
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