The Sewage Double Standard: New rules still won't penalize cities for sewage dumping

Wednesday, October 6, 2010

Farmers maintain it's not fair that a municipality can dump many litres of sewage from an overloadedsewage treatment plant when farmers get hit hard for spilling a tanker of liquid manure on a roadside

by DON STONEMAN

In 2002, Environment Canada announced that Hay Bay Farms Inc. of Napanee and its manager, Mark Davis, would each be fined $5,000 for violating the Fisheries Act and ordered to pay $25,000 to the Cataraqui Region Conservation Authority for fish habitat and stream rehabilitation.

Hay Bay and Davis had failed to comply with a 1998 directive issued by the environment department to stop pollution from the farm reaching a fish habitat area in the Bay of Quinte. Three charges of "depositing a deleterious substance in water frequented by fish," as spelled out in Section 36(3) of the Fisheries Act, were suspended and the company and Davis were placed on probation.

"We tried our best" to deal with the source of pollution, Davis says, of the 1998 directive. Davis remembers that Environment Canada tested water beside his farm in 1998, and ordered a cleanup before testing again 30 days later.

In October, 2002, acting upon a complaint from a disgruntled neighbour, an Environment Canada inspector determined that Orangeville area farmer David Moritz was polluting Willow Creek by allowing cattle access to the stream which bisected his farm. Moritz was pasturing 50 stocker cattle on a little more than 50 acres. A letter from the department warned Moritz that a first offense could result in a fine of as much as $300,000.

"We got 30 days notice from the time the letter was mailed and it took two weeks to get here," Moritz recalls.

The Fisheries Act, under the jurisdiction of the federal Department of Fisheries and Oceans, is enforced by Environment Canada through a memorandum of understanding.

This spring, Environment Canada published a new regulation that Mark Mattson, president of Lake Ontario Waterkeeper and a former criminal lawyer, says "would decriminalize sewage discharges that are currently illegal under the Fisheries Act."

If the regulation is adopted, Section 36(3) will no longer apply to municipal sewage facilities, Mattson says. There will be guidelines for operation of the 3,700 municipal sewage systems in Canada secondary sewage treatment, but municipalities will get lots of time to comply.

"Wastewater systems posing a high risk would be required to meet the effluent quality standards within 10 years, those posing medium risk within 20 years, and those posing low risk within 30 years," says a Regulatory Impact Analysis Statement, published in the Canada Gazette, in March. "This approach provides time for owners and operators of systems requiring infrastructure upgrades to plan, finance and implement cost-effective measures to meet the required standards."

It's a far cry from the 30 days notice that farmers Moritz and Davis received.

Environment Canada tested water in a ditch leading from Hay Bay Farms to the Bay of Quinte and Davis was directed to cease polluting. Davis didn't know where the pollution was coming from. Department officials told Moritz to fix the problem but didn't say how. "'We don't give advice' was the comment," Moritz says.

Ottawa knows what the issue is with sewage treatment in Canada. "Effluent from wastewater systems represents one of the largest sources of pollution, by volume, in Canadian waters," the Canada Gazette says. "Negative impacts to aquatic ecosystems and to Canadians from harmful substances found in wastewater effluent have been documented domestically and internationally for over 20 years."

Upgrades to sewage treatment are expected to cost nearly $6 billion, with municipalities bearing the majority of costs. Implementing proposed regulations will cost $28.1 million, with 75 per cent borne by the provinces and the Yukon. (The regulations don't apply to the extreme North.) An estimated $17.7 million will be spent on "compliance promotion activities" and enforcement will cost $6.7 million.

In 2009, the analysis statement explains, the Canadian Council of Ministers of the Environment endorsed a Canada-wide Strategy for Management of Municipal Wastewater Effluent. The federal government committed to develop regulations under the Fisheries Act.

Environmental scofflaws
Waterkeeper Mattson says that, even though the finger is often pointed at farmers, wastewater treatment is many times more of a problem than manure from livestock waste in polluting bodies of water, such as Lake Ontario.

Over the last 10 years, Environment Canada has laid charges against eight municipalities in Canada for violation of subsection 36(3) of the Fisheries Act, wrote media relations advisor Mark Johnson in an e-mail to Better Farming.

The low number of charges "is exactly one of the reasons why cities and the governments have worked together to replace the current laws on pollution from cities," Mattson says.

"The argument that they were being treated as scofflaws was fairly strong. I think it was an embarrassment to this government. They had these laws they weren't enforcing at all. There was some urgency to replace them with laws they could be compliant with."

Mattson notes that, more than 10 years ago, a special regulation was written into the Fisheries Act for the pulp and paper industry, giving them breathing room to clean up their wastewater habits. Cities have lobbied for many years to have similar regulations put in place for them, Mattson says.

In his e-mail to Better Farming, Environment Canada's Johnson wrote that "the proposed regulation includes requirements related to the notification and reporting of overflows under certain circumstances. Wastewater system owners and operators would be required to report combined sewer overflows and develop plans for reducing overflows.  The government of Canada anticipates that, through negotiation of the federal-provincial agreements, these reports would be submitted to the provinces."

However, the proposed regulations for municipalities still won't penalize them for sewage treatment bypasses and spills. "Should a facility operator not report an overflow, actions would be taken to evaluate the situation and determine appropriate next steps, which may include enforcement action."

Mattson says the city of Toronto remains the largest polluter on Lake Ontario. (See chart on page 42 showing Toronto spills and bypasses.) "They want to applaud the work they are doing on the beaches. They say (sewage bypasses and spills) don't affect the drinking water. They are pretty good at getting around the simple fact that the city of Toronto has outgrown its infrastructure and, by necessity, has to discharge huge amounts of sewage into Lake Ontario and that the government has been impotent in enforcing the only law that we have federally against sewage pollution, which is the Fisheries Act."

Mattson says an arrangement between Kingston and the provincial environment ministry works better because the public is told what is happening. It came into place after a 50-year-old pipe was found to be leaking raw sewage into the Cataraqui River.

The City of Kingston and the ministry of environment agreed to put in place a notice of a bypass on the city's website and to undertake a cleanup. (http://www.utilitieskingston.com/Water/SewerBypassLog aspx?wopenpane=1)

"When they have a discharge of sewage, they immediately report it on the website, how much and where," Mattson says, so municipalities downstream can take appropriate measures. Mattson says Lake Ontario Waterkeeper suggested this solution because it feels it's important that taxpayers see when their infrastructure isn't up to standard.

"For me, that was a great victory because the people in the city and the area have knowledge of what is going on. I would like to see that across the province."

Mattson says there needs to be a standard in place to which municipalities must conform. "If that standard isn't in place, I don't blame the politicians or the cities for saying, ‘Let's put spending that money off for another five years. Maybe we'll be in better shape then.'"

Increases property values
The Regulatory Impact Analysis Statement cites a connection between clean water and higher property values, and therefore higher tax assessments. A gain in assessments of nearly $15 billion is predicted in municipalities where major sewage treatment upgrades are undertaken, a return of nearly $3 for every dollar spent on improving sewage infrastructure.

According to Environment Canada's Johnson, Environment Canada will review the comments on the original posting, revise the proposed regulations and publish the final regulations by the end of the year.

The goal of the proposed regulations is to get wastewater facilities across Canada to achieve secondary treatment or its equivalent, Environment Canada's analysis statement says. The proposed regulations would also take a step toward managing sewage overflows that occur when the volume of wastewater exceeds the capacity of wastewater systems during heavy rains or snow melts. They won't be eliminated but wastewater plant operators must make a plan to deal with them.

"Should a facility operator not report an overflow, actions would be taken to evaluate the situation and determine appropriate next steps which may include enforcement action," Johnson wrote. The Ontario Ministry of Environment already monitors spills and bypasses from plants in this province.

Tell that to Davis, who faced immediate action when ammonia was found in a ditch leading to a popular fishing area.

It turned out it was a faulty septic tank that caused Hay Bay's grief, Davis says. The 5,000 gallon tank had served as a transfer station between the pit under the barn and a storage lagoon. Hay Bay won $200,000 by suing the septic tank's maker, but Davis says legal expenses cost $545,000.

He says the federal government'sfine was reduced eventually to about $500 and Hay Bay paid the conservation authority about $17,000 for rehabilitation work.

Davis says it's not fair that a municipality can dump many litres of sewage from an overloaded sewage treatment plant when farmers get hit hard for spilling a tanker of liquid manure on a roadside. But he doesn't think farmers should have a break either.

"I personally believe everybody should do their best not to pollute," says Davis, whose farm is still in business with 2,700 sows. "We try very hard here not to have anything leave our properties. We pre-till the soil so that it doesn't go into the tiles. We test our tile water. We do everything we possibly can not to pollute."

As for Moritz, he still pastures 50 head of cattle in the summer on his property. He received a grant from the local Grand River Conservation Authority and fenced his cattle out of the brook. Periodically in the summer, he opens the gates to give cattle access to a two-acre field on the other side of the brook for three days to keep it in production.   

He remains skeptical about what Environment Canada has to say about reducing pollution. "Environment Canada deals with that at its own whim and fancy," he says. BF