November 1, 2004

Ontario's clean air, biodiversity initiatives offset by shortcomings in EA monitoring, enforcement

While the Ontario government has made important progress on a number of environmental issues over the past year, there still remain serious problems to be addressed, said Gord Miller, Environmental Commissioner of Ontario (ECO). Choosing Our Legacy, his fifth annual report to the provincial Legislature, cites issues relating to monitoring and enforcement of the Environmental Assessment Act (EA Act), sewage treatment plant (STP) discharges and waste management and recycling as some of the main concerns discussed in this year's report.

Miller, who monitors compliance by provincial ministries with the Environmental Bill of Rights (EBR), commended the government for its efforts in certain areas to which his office has been calling attention for several years. He praised Ontario's proposal to update and revise the Provincial Parks Act (the first such review in 50 years) and its commitment to develop a biodiversity strategy. Fulfillment of this commitment could be "once of the most environmentally significant policy initiatives in some years," Miller stated.

Other positive developments have included better monitoring of aquatic ecosystems by the Ministry of Environment, protection of the wolves of Algonquin Park, and the province's recently-announced Five-Point Plan for Cleaner Air.

The EA Act makes the Ministry of Environment (MOE) responsible for setting the terms and conditions to be met by other ministries and agencies undertaking projects which will affect the environment. Several cases presented in the report, however, indicate that the MOE is not monitoring or enforcing those terms and conditions.

One such case related to the expansion of Highway 69 in the Muskoka region. Landowners in the area, whose properties were being flooded, used the EBR to seek an investigation of construction practices used on this project, for which the Ministry of Transportation (MOT) was responsible. The investigation revealed broader, more systemic problems associated with the EA process.

Not only was the MOT failing to meet the conditions of the approval for the project, the MOE was failing to monitor whether those conditions were being met. When the landowners tried to find out what the conditions were, they encountered lengthy delays in obtaining the documents containing this information - documents which should be publicly and readily accessible.

Moreover, by the time the MOE investigated the situation, it was too late to prosecute: the six-month statute of limitations for alleging a violation of EA approval conditions had expired. In view of this and other cases described in the report, the ECO has recommended that the MOE examine the need to amend the EA Act to provide a two-year statute of limitations for prosecutions. Another recommendation calls for the MOE to address the difficulties faced by members of the public when seeking access to relevant EA approval documents.

The ECO further points out that the MOE has withdrawn from its role of monitoring how the Ministry of Natural Resources (MNR) manages the forest industry, a role assigned to the MOE in 1994 by the Environmental Assessment Board. In 2003, the MOE approved a declaration order for forest management, allowing MNR to continue overseeing activities such as roadbuilding, tree harvesting, forest renewal and pesticide use.

The terms and conditions set for the forest industry were made less stringent, and the new EA approval, Miller noted, included no expiry date and no system of independent public review. This, he said was "a problem that Ontario Professional Foresters describe as 'a serious credibility issue.'" There was also no deadline for required compliance reports or requirement for MOE approval of MNR's five-year EA report.

Consequently, the ECO recommends that the MOE amend the declaration order to provide an opportunity for public response to the five-year report and to include a requirement for MOE approval of the report.

Miller's greatest concern regarding EA issues, he said "relates to the loss of EBR rights under section 32 of the EBR itself." Section 32 exempts certain instruments from the requirement for posting on the environmental registry if they are part of a project either approved or exempted under the EA Act. The original intent of this section was to prevent duplication of public consultation processes. The ECO's 2001-02 annual report, however, evaluated public participation rights under several EA processes and found them deficient in a number of respect compared to the EBR process for instrument approvals.

In practice, said Miller, some environmental approvals and permits are not receiving any public scrutiny at all. There may in fact be thousands of such instruments exempted from the EBR's public notice and comment provisions each year "because they hide behind the veil of section 32." Accordingly, the report recommends that the MOE ensure that public consultation practices under the EA Act are consistent with the minimum rights enshrined in the EBR, particularly with regard to permits, licences and approvals.

Miller also expressed disappointment with the failure of some ministries to review and update their Statements of Environmental Values (SEVs). Ministries prescribed under the EBR are required to formulate SEVs, which will provide the foundation for decisions with environmental impacts. The ECO calls for the prescribed ministries to review, update and strengthen their SEVs as soon as possible.

This is more than an abstract concern, Miller added, citing the Groundhog River case as a clear example of why consideration of a ministry's SEV should be part of the decision-making process. One of the most controversial decisions made this year, he explained, was the MOE's approval of Falconbridge's application to discharge mining effluent from its mine near Timmins through a pipeline into the Groundhog River, a waterway the MNR is planning to designate as a provincial park in order to protect the river for its natural wilderness qualities and as habitat for rare lake sturgeon. (On October 25, MNR posted on the EBR registry a notice of its proposal to designate the new Groundhog River Provincial Park, through an amendment to the relevant regulation under the Provincial Parks Act.)

The MOE's SEV commits it to "an ecosystem approach to environmental protection" and a precautionary approach to decision-making where there is uncertainty about the risks posed by a pollutant or class of pollutants, yet this sewage works approval has potentially damaging environmental consequences, says the report.

In its response to this concern, the MOE notes that the terms and conditions attached to the approval go beyond the Ministry's normal requirements for mining effluent quality and standards, and says it will ensure that the company meets regulatory standards setting effluents limits for pH, heavy metals, suspended solids and aquatic toxicity.

Miller also urged the province to re-engage itself in promoting stronger municipal sewer use bylaws, pointing out that large quantities of toxic substances continue to flow through Ontario STPs. "Regrettably," he said, "the Ministry of the Environment has quietly backed away from its policy of requiring that all municipalities have sewer use bylaws. I believe that MOE should act on this policy," he added.

There are at least 12,000 industrial, commercial and institutional operations connected to municipal sewer systems across Ontario, and these systems are not designed to deal with the types of compounds, such as metals or persistent organics, that are released by IC&I facilities. At best, says the report, these substances are only partially degraded in STPs or they may accumulate in sewage sludges or pass untreated into the environment.

Until the mid-1990s, the MOE promoted strong sewer use bylaws but has since left that responsibility to municipalities. A 1998 MOE proposal to encourage more stringent sewer use bylaws was never finalized and today, just over half of Ontario municipalities have sewer use bylaws, some of which have not been updated for years. The ECO report recommends that the MOE act on its existing policies to ensure that municipal sewer use bylaws are in effect, that they reflect current environmental standards and that they are enforced throughout Ontario.

Turning to waste management and recycling, Miller said that while Ontario's new Blue Box program appears to have no fatal flaws, the issue of concern is the current recovery rate for aluminum soft drink containers, which he termed "abysmally bad." Waste diversion statistics cited by the ECO report indicate a 2002 recovery rate of only 42% for these containers, meaning that approximately one billion cans, worth about $25.5 million, escaped capture in the Blue Box system.

In addition to being the only material that "pays its own way" in the system, recovery of aluminum containers contributes significantly to reduced energy use and greenhouse gas (GHG) emissions. Recycling those one billion cans would avoid some 54,000 tonnes of GHG emissions and save the equivalent amount of energy required to power 125,000 Ontario homes for one year, notes the report.

Deposit-return systems used by Ontario's Beer Store chain and by other jurisdictions in Canada have very high capture rates for aluminum cans. Miller suggested that the test of the new Blue Box system "will be to see if it captures comparable amounts of soft drink containers."

The Commissioner said he remains deeply concerned about the fate of forests throughout the province. Only vestiges are left of the province's original old growth pine forests that are part of Ontario's irreplaceable genetic, ecological and natural heritage. But the MNR has yet to incorporate consistent requirements into rules governing how the forest industry must conserve old growth when planning to harvest trees.

Miller called attention as well to a change in the property tax system which he fears is creating an incentive for owners of managed forests in southern Ontario to remove trees from their lands. "These forests are crucially important for protecting biodiversity, in an area that is already under threat from invasive alien species like the emerald ash borer," he said.

The Managed Forest Tax Incentive program, introduced in 1997, provided tax assessments for properly managed forests equivalent to farmland and a rate of 25% of the municipal tax rate for residential properties. Changes in assessment rules in 2002, however, led to higher tax assessments for many managed forest properties, particularly those near urban or recreational areas, where market forces elevate property values.

As a result, the core purpose of the program has been frustrated, with small woodlot owners facing higher taxes and stronger incentive to sell off their land for clearcutting and conversion to agricultural use. And owners of larger forests, who may have made substantial investments in sustainable forestry, are being punished for investing in our future forests and are also being forced to subdivide or sell out, Miller said, adding that the program should be fixed or replaced. The ECO report urges the MNR to ensure that the Managed Forest Tax Incentive program does not provide a financial incentive to clear forested tracts of land in southern Ontario.

The report also examines the impact of mercury contamination on fish-eating birds and mammals, calling on the province to focus on reducing mercury emissions from sources such as coal-fired power plants and sewage treatment plants.

This year's report looks at two important developing issues: the emerging challenge of electronic waste (e-waste) diversion and the damaging effects of the increase in global nitrogen emissions, including habitat and species loss, dieback in Ontario's forests, and, some scientists fear, an accelerating rate of extinction for certain plant species.

In view of the apparently growing impacts of nitrogen on Ontario's ecosystems and landscapes - particularly water quality-related impacts - the report says the MOE should adopt a provincial water quality objective for nitrate consistent with the Canadian water quality guideline for this substance.

While the ECO commends the MOE's plan to designate e-waste under the Waste Diversion Act (see following story), the report notes that a regulation may be required to ensure that Ontario does not become a dumping ground for electronic products no longer allowed in other jurisdictions.

In concluding, Miller observed that the people of Ontario are responsible for the environmental legacy left to future generations. "We have not made any significant progress toward a sustainable future at the level of our personal lifestyles," he stated, adding that "our individual ecological footprint is too big, and every year there are more of us - so the collective footprint just keeps expanding."

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