British Columbia is the latest in a growing number of jurisdictions in which the government has decided to look more closely at its waste management legislation to reduce the degree of “unnecessary” regulatory burden imposed by existing legislation. On September 21, 2002 the B.C. government announced a “sweeping” 18-month review of its Waste Management Act. The government proposes to cut back on regulatory involvement while maintaining protection of the environment.
The current Act is perceived as bogging down both communities and the private sector in what the environment minister has described as a “complicated prescriptive permitting and approval process.” As has been the experience in many other jurisdictions, B.C. has found that under the Waste Management Act projects can take years to obtain approvals.
When it was enacted 20 years ago the Act prohibited the introduction of business waste into the environment. Over the years, however, various activities have required, and been granted, exemptions from this prohibition through an ad hoc development of regulations and guidance documents. As a result, there are currently more than 30 regulations and over 50 guidance documents (policies, etc.) in which the government has prescribed over 5,000 regulatory requirements. There are also several thousand permits issued to about 2,000 public and private operations.
The government states that the review, which has been billed as an 18-month program that will seek “innovative” approaches to waste management, will result in significant amendments.
Four discussion papers will be submitted to stakeholders and the public. The first one, Authorization of Waste Discharge, was issued for comment by November 2002. This paper dealt with issues related to the discharge of contaminants from waste operations. The issues include: the current lack of differentiation between low, medium and high risk activities; the resources to administer the requirements; the focus of site-specific activities without the adequate regard for cumulative impacts; the lack of responsiveness to environmental knowledge and business innovation; and, the fee structure.
The discussion paper is not government policy and is intended simply to generate discussion. By taking this approach the government provides itself with a significant safety net. Any ideas “floated” and criticized harshly in any of the discussion papers can be discarded, as they are not government policy. At the same time the government gets the credit for initiating this review and bringing various points of view forward.
While the stated intentions of the review are clear, what is less clear is the government’s commitment to actually making change. Changes in the regulatory environment in other provinces have not proved the panacea that their political proponents had hoped.
In Ontario, for example, the environmental assessment legislation was amended in 1996 to streamline the environmental assessment process and introduce efficiency through the regulatory regime that was hoped would be beneficial to business. This sounds strangely familiar when one is reading the overview documents prepared by the B.C. government regarding the review. The problem, which is not unique to Ontario, is that moving the burden from one part of the regulatory process to another does not reduce the complexity of the issues.
Implications for industry
Over the next year or so the B.C. government’s intentions will become clearer. It is currently unclear how serious the government is about allocating resources to this process. Hopefully the process results in an open and engaging dialogue between stakeholders and government about issues related to the waste management sector.
Should this simply be an exercise in “red-tape” reduction, it will likely prove unsuccessful. Simply reducing the number of regulations will not necessarily improve business certainty. In fact, many industry participants are far more critical of the lack of business certainty produced by an ambiguous regulatory regime than they are of one that is clearly prescriptive in nature.
Without certainty of process, industry may be unable to determine how best to comply with environmental and waste management regulation. The potential for corporate meandering through a regulatory quagmire can be avoided in certain circumstances by a more prescriptive process. That said, an overly prescriptive regulatory environment reduces the flexibility of industry participants and impedes the traditional Canadian engineering approach to environmental regulation.
B.C., like all other modern jurisdictions, is faced with the dilemma of balancing these and other interests as it attempts to provide an attractive environment for business within its boundaries. In the end, what is probably most important, and as yet undetermined, is the amount of resources that the province will devote to this issue. Without proper expert input and funding for policy development as well as ongoing maintenance of abatement, enforcement and inspection efforts, all the best of intentions will likely be for naught.