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Ontario waste industry faces serious issue with Michigan actions

The Ontario Waste Management Association (OWMA) has circulated a bulletin to members with information on what it de...


The Ontario Waste Management Association (OWMA) has circulated a bulletin to members with information on what it describes as "an immediate and serious issue" associated with legislative initiatives in the State of Michigan to reject prohibited waste from landfill effective October 1 2004. This Michigan initiative has potentially serious implications to OWMA members and waste disposal in general.

OWMA has recently informed all members of the new legislative bills in place in Michigan that could have serious consequences to waste export from Ontario. The State of Michigan is requiring ‘jurisdictional approval" for any waste disposed in Michigan landfills as of October 1. Michigan requested an application for jurisdictional approval from the Province of Ontario (July 15, 2004) that has subsequently received no response or action from the province.

In the bulletin, OWMA writes: "It is our understanding that the Ministry of the Environment has determined that the province has no responsibility to respond to the State of Michigan’s request and in ensuring that waste disposal options remain available after the deadline date. The Ministry of the Environment has adopted the approach of downloading the responsibility for Michigan applications to individual municipalities and have determined that no action is necessary in respect to industrial, commercial and institutional (IC&I) waste.

"OWMA has disagreed with the Ministry of the Environment’s position and conveyed our concerns in the strongest manner possible to the Minister of the Environment, Premier of Ontario, and a number of political staff in both office. The September 1 administrative deadline established by the State of Michigan for the receipt of applications for October 1, 2004 has passed and the province has taken no action."

In an effort to protect the interest of OWMA members and to address the inaction of the province, the OWMA has initiated several actions.

OWMA has prepared and submitted two jurisdictional applications to the State of Michigan. The applications and support materials have been received by the State of Michigan Department of Environmental Quality (DEQ) prior to September 1, 2004 and will be considered between now and October 1. The applications are submitted to receive jurisdictional approval for the Province of Ontario as it applies to transfer station facilities owned and operated by OWMA members. The first application includes a listing of OWMA member transfer stations to which an approval will apply.

Secondly, in case Michigan doesn’t accept the specific transfer station application, OWMA has requested jurisdictional approval for the entire Province of Ontario as it applies to all IC&I waste. In support of both applications is a comprehensive package of IC&I waste regulatory and guidance materials.

The OWMA has cautioned members that even though this action has been taken in the absence of Ontario ministry action, there is no guarantee that the State of Michigan will deem Ontario regulations to be "equivalent" to the State of Michigan’s prohibited waste regulatory framework. It is anticipated that Michigan’s decision regarding both OWMA applications will be made prior to October 1, 2004.

As a result of the uncertainty surrounding the State of Michigan’s application and assessment procedure, OWMA is also recommended that individual members operating transfer stations take the following action:

1. All OWMA members with transfer stations currently exporting waste for disposal to the State of Michigan should make an application on behalf of local jurisdictions from which waste (IC&I) is received at the transfer station. The same compilation of supporting materials as contained in the OWMA application should be used in support of an individual transfer station application.

2. Individual transfer station facilities should forward relevant documentation (OWMA package), plus specific practices and procedures in place to address Michigan prohibited wastes at individual transfer stations, to landfill facilities in the State of Michigan currently utilized for disposal. The Michigan bills provide for Michigan landfills to accept jurisdictional waste on the basis of documentation (kept on file) that would indicate equivalency with Michigan prohibition laws. Each Michigan landfill location could make a determination regarding the acceptance of waste from specific transfer stations after October 1, 2004. While the nature of compliance options remains unclear, this section of the Michigan Act could be interpreted as applying on a "load by load" basis.

All members, OWMA says, should be aware that legal action is underway in the U.S. in an effort to secure an injunction and challenge Michigan waste law on the basis of restricting inter-state commerce and violation of NAFTA. The NSWMA is spearheading the challenge. However; the decision on an injunction is not expected until later in the month of September. Any success in the legal challenge may represent the best opportunity to resolve this issue.

Many Ontario municipalities are also making direct applications to the State of Michigan; however, their applications are exclusive to IC&I waste. OWMA has similar concerns that Michigan will not deem Ontario municipal regulations as equivalent.

Over the next four weeks the OWMA will maintain pressure on the Ontario Ministry of the Environment and the Province of Ontario to respond in a responsible manner to the Michigan situation and will be pursuing media and other stakeholder contacts to ensure that the magnitude of the potential disposal crisis on October 1, 2004 is fully understood.

OWMA invites inquiries on this matter and has related documents and materials available to waste industry professionals and people from the media..

Contact OWMA at 905-791-9500 or via contact@owma.org


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