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Environmental Law Article

This article appeared in Environmental Science & Engineering (November, 1998).

Upgraded Ontario Fire Rules Extend Powers, Regulation of Storage Tanks
Phase-in Begins For Flammable and Combustible Liquid Storage Tanks

by P. Douglas Petrie

Changes introduced by the new Ontario fire prevention legislation, including the new Fire Code, have significant implications for non-fuel businesses and for industry.

The new Fire Protection and Prevention Act, 1997 (FPPA) clarifies and strengthens the emergency and investigation powers of fire officials. However, the most significant change affecting industrial facilities is the phasing-in of comprehensive regulation of tanks and systems for flammable and combustible liquids, which include industrial process chemicals such as solvents. Formerly, only tanks and systems for motive fuels and heating fuels were comprehensively regulated (under Gasoline Handling Act and Energy Act codes). Under Part 4 of the new Fire Code, flammable and combustible liquid storage facilities will be subject to specific materials, installation, maintenance and operational standards. Application of these provisions to existing installations will be phased in over several years.

The new fire rules were established under the Fire Protection and Prevention Act, 1997 (FPPA), which became law on October 29, 1997 and the new Ontario Fire Code (O. Reg. 388/97) which came into force on November 21, 1997. Part 4 of the Fire Code governing flammable and combustible liquid storage tanks and systems came into force on August 21, 1998. The FPPA replaces the Fire Marshals Act as the parent legislation for the Fire Code.

Fire Protection and Prevention Act, 1997 (FPPA):

The FPPA, which repeals and replaces the Fire Marshals Act, is the framework for fire prevention authorities and powers in Ontario. The FPPA:

• requires every municipality to provide, or make arrangements for, fire protection services and a program of fire safety and prevention (public education);

• explicitly recognizes automatic aid (by adjacent municipalities) and mutual aid agreements;

• permits fire officials to enter without a warrant onto:
  • lands and premises for the purposes of assessing fire safety;
  • lands and premises where a fire has occurred;
  • lands and premises where the fire official believes there is a substance or device that is likely to cause a fire.

• permits firefighters or other authorized persons without a warrant to enter lands or lands or premises adjacent to a fire or emergency for firefighting, rescue or emergency services;

• permits firefighters or other authorized persons without a warrant to enter lands or premises adjacent to lands and premises on which there is "a serious threat to the health and safety of any person or the quality of the natural environment", for the purpose of removing or reducing the threat;

• where the threat to life is deemed to be immediate, a fire official may take other measures (such as the reported seizure by fire officials of the Equitrade premises in Hamilton, in an effort to prevent another Plastimet-like occurrence);

• authorizes an inspector to order the owner or occupant of land or premises to "take any measure necessary to ensure fire safety", including:
  • demolition or structural alteration of a building,
  • removal of fire hazards,
  • installation and use of equipment to contain hazardous materials,
  • halting production activities, and
  • other fire safety activities, including preparing a fire safety plan, and remedying contraventions of the Fire Code.

For the purposes of inspections and orders, the FPPA defines "fire safety" to include "safety from the risk that a fire, if started, would seriously endanger the health and safety of any person or the quality of the natural environment for any use that can be made of it". This definition is similar to the definition of "adverse effect" in the Environmental Protection Act (EPA), and may facilitate cooperation between fire and environmental officials.

A fire safety order is subject to review by the Fire Marshal and subsequent appeal to the Fire Safety Commission. In the interests of public safety, the Fire Marshal or the Fire Safety Commission may refuse to stay an order during the review or appeal.

New Fire Code - Part 4 - Storage Tanks

Part 4 of the Fire Code is entitled "Flammable and Combustible Liquids". It closes the comprehensive regulation gap for storage tanks containing industrial process liquids (raw material inputs, solvents, waste liquids, etc.) that were not governed by the Energy Act and Fuel Oil Code nor the Gasoline Handling Act and Gasoline Handling Code.

While most of its provisions are identical to Part 4 of the National Fire Code of Canada, 1995 (NFC), Ontario’s new Fire Code adopts national and consensus industry standards that are more up-to-date (April 30, 1997). The standards adopted in the NFC are of 1993 vintage. Arguably, Ontario’s new Fire Code now serves as a definitive statement of best management practices that can be observed across Canada for due diligence purposes.

The Ontario Fire Code also requires spill clean-ups to comply with Part X (Spills) of the EPA. Part X sets out comprehensive provisions for owners and controllers of spilled substances to clean up contamination, ameliorate adverse effects and restore the natural environment.

Exemptions

Part 4 does not apply to the following:

• airports, piers and wharves regulated under federal law;
• transportation of flammable and combustible liquids governed by the federal and provincial dangerous goods legislation;
• pipeline transfers subject to the Energy Act;
• underground areas to which the Occupational Health and Safety Act and its regulations apply;
• hydrocarbon-burning appliances regulated by the Energy Act;
• aerosol products covered under Subsection 3.2.5 of the National Fire Code;
• storage of flammable and combustible liquids on farms "for individual farm use"; and
• storage, handling, transportation and use of liquids regulated under the Gasoline Handling Act or the Energy Act.

Compliance Equivalency

Strict compliance with the Ontario Fire Code can be excused where a "proposal for compliance equivalency", signed by a professional engineer or architect, is approved by a local Chief Fire Official. The proposal must provide for materials, design and standards that are equal to or more protective than the applicable standard set out in the Fire Code.

Application and Phase-In For Existing Facilities

Part 4 of the Fire Code covers all new installations, effective August 21, 1998.

For existing facilities, the provisions of Part 4 of the Fire Code are being phased-in over four years, in three distinct phases. A fourth phase, setting standards for tank location including mandatory spacing and setbacks, will affect existing facilities only when tanks are replaced or relocated.

The first phase of Part 4 took effect August 21, 1998. The second phase takes effect two years later, on August 21, 2000. The third phase takes effect on August 21, 2002.

Each phase increases the compliance requirements for existing installations, with the most capital or construction intensive matters coming in the later years.

Phase 1 addresses requirements including fire protection equipment and procedures, spill and leak responses inventory control, and tank removal and decommissioning. The clean-up requirement for decommissioning underground tanks is limited to replacing contaminated soil surrounding the tanks.

Phase 2 (August 21, 2000) requirements include installation of spill containment and drainage systems, upgrading tanks to meet listed design and materials specifications, installing or upgrading normal and emergency venting.

Phase 3 (August 21, 2002) includes provisions that may require relocating tanks to ensure access for fire fighting purposes, upgrading tank foundations and supports, installation of secondary containment, and upgrading corrosion protection.

The phase-in provisions are detailed and complex. However, the standards are generally well established and widely known in the storage tank industry.

More Information

Officials at the Office of the Fire Marshal (OFM) are currently preparing a training program for handling and storing flammable and combustible liquids under Part 4 of the Fire Code. Notice will be posted on the OFM web site. For information about the Fire Code, contact local fire officials or the Office of the Fire Marshal at (416) 325-3100.

Copies of the FPPA and the Fire Code (O. Reg. 388/97) can be purchased at the Ontario Government Bookstore, or ordered online through Publications Ontario Online (POOL). The Ministry of the Attorney General also maintains online copies of Ontario’s legislation and regulations.

*P. Douglas Petrie is an environmental lawyer and partner in Willms & Shier, Barristers and Solicitors, in Toronto. Mr. Petrie is the author of Storage Tanks in Ontario: The Guide to Environmental Regulation and Compliance, published by Templegate Information Services. A detailed discussion of the above legislative changes, together with full text of the relevant legislation as it pertains to flammable and combustible liquid storage tanks, will be among the 1998 updates made available to new purchasers and continuing subscribers of this unique reference volume.

To comment, call Barry Spiegel in Toronto at (416) 863-0711 or send email to

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