October 9, 2006

Commissioner takes Ontario to task for environmental neglect, cites long-standing lack of capacity as root cause

The trail of problems, failures and shortcomings relating to environmental protection has crossed the line from mismanagement into fundamental neglect of the environment on the part of the Ontario government. Such neglect will have grave and long-lasting consequences, says Gord Miller, Environmental Commissioner of Ontario (ECO), in his 2005-2006 annual report, aptly titled Neglecting our Obligations. The report, presented to the provincial Legislature on October 3, points directly to long-standing, systemic underfunding of the key ministries of Environment and of Natural Resources as the root cause.

"In the past year I have come to the discouraging realization that there is just too much left undone in too many areas of environmental protection," Miller says. "When we neglect our obligations to the natural environment, we are also forgetting our responsibilities to future generations. They will be dealing with the consequences of our actions, and especially our inaction, for years into the future."

In evaluating compliance by provincial ministries with Ontario's Environmental Bill of Rights (EBR) legislation, the report cites examples of government inaction in almost every area of environmental management - climate change, air and water quality, waste diversion and landfills, and aggregate extraction. The ECO has made 14 recommendations to address the issues and concerns raised.

Following up on the previous year's inquiries about provincial efforts to reduce greenhouse gas (GHG) emissions and to deal with climate change, the ECO focused on adaptation, an approach that acknowledges that to a certain extent, climate change is already occurring and will likely continue in spite of mitigation efforts.

The report notes that Ontario has not yet developed a formal strategy to deal with adaptation to climate change, an approach now considered essential for ensuring that the province's ecosystems and built environments - such as bridges, dams, sewage treatment plants, or drainage systems - will be able to withstand the effects of climate change. Projections suggest that these effects could include more unpredictable weather, with intense rain and ice storms, heat waves and droughts, lower water levels in the Great Lakes and increased costs for cooling buildings, along with threats to the health or even survival of local plant and animal species.

The ECO's evaluation found little or no reference to climate change in policy documents, and revealed that more leadership in this area is being taken by the Ministry of Natural Resources (MNR) than by the Ministry of Environment (MOE), the agency tasked with co-ordinating Ontario's response to climate change. In 2004, MNR prepared a climate change strategy and action plan for climate change mitigation and adaptation, but this document was still in draft form as of April 2006, says the report.

The review also found little evidence that provincial codes, policies and standards are being adjusted specifically to deal with forecast climate change-related changes, including Ontario's Building Code. Given the threats posed by climate change to the built, as well as natural, environment and the fact that decisions about infrastructure and land use are difficult to change, once made, the report recommends that the Ministry of Municipal Affairs and Housing (MAH) and the MOE fully prescribe the Building Code Act and its regulations under the EBR for the purpose of commenting on proposals and applying for reviews.

Ontario regulation 194/05, finalized in May 2005, caps air emissions of nitrogen oxides (NOX) and sulfur dioxide (SO2) by major industrial sectors. In so doing, it expands Ontario's hybrid emissions trading system, while allowing uncapped emitters to earn emission reduction credits (ERCs) and sell them to capped emitters. Of concern, says the report, is that uncapped emitters are not prevented from generating new sources of NOX and SO2 emissions. The regulation would be more effective in reducing overall NOX/SO2 emissions if trading were permitted between capped emitters only, it adds.

The ECO is also concerned that emission caps for many industry sectors remain close to current levels or may even increase over the next ten or more years. Additionally, the lack of penalties in regulation 194/05 for non-compliance may create challenges to its successful implementation. The report recommends that the MOE expand the range of capped emitters and restrict emissions trading to within that group only. It also encourages the MOE to pursue emission reduction initiatives for other significant NOX/SO2 emitters, such as off-road vehicles (e.g. construction equipment and all-terrain vehicles) which account for 30% of Ontario's NOX emissions to air.

The report notes that the MOE's recent update of air quality rules for industry has brought in better ways of estimating concentrations of pollutants, a stronger approach for developing air standards, and more detailed requirements for industrial facilities to show they are complying with the standards.

The success of this reform, however, will depend on the MOE's capacity to inspect and enforce compliance with the new regulations. At this point, human and capital resource restraints enable the Ministry to inspect only about 1-2% of the facilities per year, says the report.

Also, the new regulations also do not deal adequately with annual loadings of contaminants such as lead or mercury to the environment, which can build up to toxic concentrations over the years in local plant or animal life. Moreover, updated air standards for certain high-priority contaminants such as nickel are not yet finalized, though the MOE promised to update standards for these substances as long as ten years ago.

Another significant issue of concern is Ontario's ability to meet its commitments to managing Great Lakes waters as set out in the Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement, signed by Ontario, Quebec and the eight Great Lakes states in December 2005. This agreement builds on the protection provisions of the Great Lakes Water Quality Agreement (GLWQA), specifically addressing water takings and water diversions from the basin. It is groundbreaking in that it formally recognizes cumulative impacts, acknowledges the threat posed by climate change and enshrines the precautionary principle regarding environmental action in the face of uncertainty. Notable as well are the commitments to setting water conservation goals, reporting publicly on progress in water conservation, and improving Great Lakes science.

The ECO expresses concern about Ontario's ability to meet these commitments. While MNR was the lead provincial agency in negotiating the agreement, the MOE will be largely responsible for its implementation. Given the MOE's already-limited capacity for Great Lakes monitoring, data sharing and environmental remediation, together with the absence of any announcement about new implementation capacity, the report questions how Ontario will meet its obligations in this area.

The Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (COA) also supplements the GLWQA, setting out the means by which the federal and Ontario governments will meet their obligations under the latter. The ECO notes that its previous reviews of Ontario's performance under the current and previous COAs have found the province falling short on its commitments and expresses concern that this may again be the case when the current COA expires in 2007.

Unlike the GLWQA, the COA model has resulted in a series of limited-duration accords, with gaps between the end of one and the signing and funding of the next. The report points out that activities under the current COA are already winding down and staff in Great Lakes program areas have been cut back to skeleton crews in many of the relevant ministries, such as MOE, MNR and Agriculture, Food and Rural Affairs (OMAFRA). With COA coming up for renewal, the ECO calls on the MOE to ensure transparency and a mechanism for public involvement in the negotiations with the federal government.

Another water quality concern relates to the province's water wells. The report says studies have shown that a high proportion of private drinking water wells in Ontario are contaminated with bacteria, nitrates or other dangerous substances. Revisions made in 2003 to the Wells regulation, under the Ontario Water Resources Act, prompted a chorus of criticism from environmental groups, the regulated industries and even from experts within the MOE.

The amendments lowered chlorination levels for disinfecting new wells to what the MOE's Advisory Council on Drinking Water Quality and Testing Standards called an "inadequate" level. As of spring 2006, says the report, the Council's full comment had not been made public, nor had the MOE taken steps to deal with the inadequacy.

The ECO further notes that uncertainties in the interpretation of the regulation's complicated provisions make it extremely hard to enforce. As well, a long delay in providing a promised guidance manual to contractors, together with a severe lack in trained staff, make it difficult for the MOE to prosecute violations of the Wells regulation.

The ECO has raised concerns about the regulation in previous reports and in his comments, Miller noted that in spite of follow-up contacts and meetings to discuss the problems, the MOE has failed to meet both verbal and written commitments to address the problems.

The report notes that the government has amended the regulation under the Nutrient Management Act setting out requirements governing land application of manure and biosolids such as sewage sludge. Unfortunately, only six years after the Walkerton tragedy, some of the changes have weakened both accountability and the assurance that farmers are following the rules that protect human health.

For example, OMAFRA no longer has to approve the nutrient management strategies for large livestock operations unless they are expanding or are located within 100 metres of a municipal well. The changes also mean that farmers are no longer legally required to keep records of how they comply with their own nutrient management plans. This, says the ECO, may make key aspects of both the regulation and the Nutrient Management Act itself virtually unenforceable.

The ECO's review of waste management policy and programs focuses on diversion. In 2004, the MOE set a goal of diverting 60% of solid waste from landfills or incineration by 2008, but did not unveil any specific plans for achieving this goal until 2006. Some activities have begun recently, but these come too little, too late and the delays so far may have already rendered the 60% diversion goal a pipe dream, says the report.

The ECO recognizes the complexity of the issue, noting that waste diversion initiatives need to take into account continuing changes in the waste stream, and they must address all sources, residential and industrial, commercial and institutional (IC&I). The report commends the MOE's stated intention to increase enforcement of the provincial 3Rs regulations in the IC&I sector, but points out that meaningful increases in waste diversion will require new ways of handling waste, including the adoption of emerging technologies. Progress, it says, will be difficult unless public support is obtained.

What is urgently needed, says the report, is a waste management strategy designed to address both disposal and diversion and to handle the whole waste stream - residential, IC&I, construction and demolition, etc. The ECO calls for the MOE to follow up on its 2004 discussion paper by developing such a strategy.

In a related area, the report calls attention to the environmental impacts of Ontario's small and aging landfills, asking who is keeping track of these. Faced with dwindling provincial landfill capacity and the threat of having U.S. borders closed to Ontario's waste, municipalities have responded by increasing the total capacity or daily fill rates of their aging local landfills.

This, says the ECO, raises questions about the adequacy of the provincial frameworks for monitoring and regulating Ontario's landfills and reporting the information to the public. The report points out that the most recent inventory of Ontario waste disposal sites is 15 years old and provides no details about a site's approved total waste capacity, presence of engineered site controls, frequency of site inspections, whether the site complies with provincial standards, or even the date its certificate of approval was issued.

The ECO asked the MOE for current information on landfills this past spring, but received nothing. And in response to a 2005 EBR application for review that include a request to have the landfill site inventory updated and enhanced, the report says the MOE indicated it lacks both the staff and financial resources needed to compile a new inventory of sites, to develop regulations compelling landfill owners to report updated information, or even to audit that information.

This, says the ECO, is a startling admission that makes it clear that MOE lacks the information necessary to regulate Ontario's aging landfills and to monitor whether they are posing a risk to the environment or to human health. By contrast, other jurisdictions have developed publicly accessible information systems providing extensive, up-to-date information. These systems also serve to confirm that the jurisdictions are monitoring compliance at their landfill sites.

The report cites California's Solid Waste Information System (SWIS) as a good example (www.ciwmb.ca.gov/SWIS/) and recommends that the MOE update and enhance its landfill inventory and make it publicly available through on-line access. If necessary, it adds, the Ministry could exercise its power under the Environmental Protection Act to develop regulations requiring landfill proponents to report on the status of their sites, including compliance with provincial standards.

Two other significant issues raised by the ECO are Ontario's sand and gravel extraction policy and the prescribing of Ontario's Ministry of Education under the EBR.

Ontario's annual consumption of aggregate is equivalent to 14 tonnes per person, which means the province is left with thousands of pits and quarries. Most of these are close to southern Ontario's areas of intensive growth, and many are in areas of significant natural heritage such as the Niagara Escarpment and the Oak Ridges Moraine.

The current regulatory and policy framework for pits and quarries does not adequately protect the environment, states the report. Key shortcomings include: poor compliance by aggregate operations, now a largely self-regulating industry; poor enforcement by the province; and a low rate of rehabilitation of pits and quarries. Data available for the ten-year period 1992 to 2001 show that the area disturbed by aggregate extraction exceeded the area rehabilitated by a 2:1 ratio.

Moreover, the Aggregate Resources Act does not apply to most pits and quarries on private lands in northern Ontario, so aggregate operations there are subject to even fewer environmental rules. Meanwhile, MNR, the agency responsible for stewardship of aggregate resources, has made almost no progress on developing strategies for conserving or recycling aggregate. The Ministry must move to correct these problems, says the ECO.

Finally, the ECO supports the growing public demand that the Ministry of Education (EDU) be prescribed under the EBR, to allow the public to be informed about, and participate in, decisions in the field of education relating to the environment and sustainability. Once a leader in the field, Ontario has now fallen far behind other provinces and the U.S. in environmental education, says the report.

Studies have repeatedly concluded that Ontario students are not ecologically literate because they are not receiving ecological education. This, says the ECO, is key to shaping the values, practices and lifestyles that will move Ontario toward sustainability.

The MOE agreed to review the request to have EDU prescribed and in October 2005 decided that it should be prescribed, but only with regard to drafting a Statement of Environmental Values (SEV) and considering the SEV when making environmentally significant decisions. The MOE based its decision largely on the fact that EDU's curriculum review, mandated every five years, provides adequate opportunity for public review and input to the decision-making process.

Prescribing EDU for SEV consideration only is unprecedented: no other ministry has ever been prescribed in this way. The ECO believes fully prescribing EDU would send a message to Ontario's schools and boards of education that more can and should be done to promote sustainability. The MOE posted a proposal on the EBR registry in November 2005 to have EDU prescribed for SEV consideration. As of June 2006, a decision notice had not yet been posted. The report recommends that the government move quickly to prescribe EDU and to make it subject to a broader range of EBR provisions.

The full report may be viewed on the ECO Web site, www.eco.on.ca.

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