Copy of Request for Review, Procedure F-5-5
(2) I believe that the ministry should undertake my review to protect the environment because ...
It is approaching one decade since F-5-5 was introduced, yet every municipality studied on Lake Ontario still fails to meet its objectives.
1. Procedure F-5-5 is a supporting document for Guideline F-5, Levels of Treatment for Municipal and Private Sewage Treatment Works Discharging to Surface Waters. The Procedure applies to sewage treatment works with combined sewer systems (wastewater collection systems which convey sanitary wastewaters and stormwater runoff through a single pipe system to a sewage treatment plant or treatment works).
2. There are three goals of Procedure F-5-5:
a. Eliminate the occurrence of dry weather overflows
b. Minimize the potential for impacts on human health and aquatic life resulting from CSOs
c. Achieve as a minimum, compliance with body contact recreational water quality objectives (Provincial Water Quality Objectives, PWQO) for Escherichia coli (E. coli) at beaches impacted by CSOs for at least 95% of the four-month period (June 1 to September 30) for an average year.
3. Between 2002 and 2004, Lake Ontario Waterkeeper sampled water for E. coli and monitored beach closures in Kingston, Toronto, Hamilton, and St. Catharines ? all municipalities with combined sewer systems.
4. Our monitoring revealed:
a. Every region suffered from dry weather overflows
b. E. coli levels in dry weather overflows were as high as 200,000 cfu/100 mL of water ? 2,000 times higher than the PWQO for the safety of human and aquatic life
c. Only two of the twenty-one city beaches met the F-5-5 goal in 2003 (toronto's Cherry Beach and hamilton's Van Wagner?s) and 2004 (Cherry Beach and Hanlan?s Beach in Toronto).
Failure to meet the first objective of Procedure F-5-5 has meant bacteria washing into our waterways, even during dry weather.
5. Fifty of seventy-two (50 of 72) samples taken by Lake Ontario Waterkeeper and Environment Hamilton in four regions show elevated levels of bacteria. Of the 72 samples taken, 58 were collected when there had been absolutely no precipitation within 48 hours. Of these 58 dry-weather samples, 40 had E. Coli at levels exceeding Ontario?s Provincial Water Quality Objectives (69%). These results differed only slightly from wet-weather results, where 71% of samples collected exceed PWQO for E. Coli. Samples were collected between June and October in the years 2002-2004.
6. Additional field observations confirm that pipes in Kingston, Toronto, Hamilton, and St. Catharines consistently show signs of bacteria contamination, even when there has been no rain within 48 hours.
Failure to meet the second objective of Procedure F-5-5 has meant that the potential impacts of Combined Sewer Outfalls on human health and aquatic life have not been minimized.
7. Procedure F-5-5 indicates that water quality at beaches should not exceed 100 E coli/100 mL of water more than 95% of the bathing season. This standard is adopted from the Provincial Water Quality Objective. According Section 2.0 of the Ministry of Environment?s Water Management: Policies, Guidelines and Provincial Water Quality Objectives:
Provincial Water Quality Objectives (PWQO) are numerical and narrative criteria which serve as chemical and physical indicators representing a satisfactory level for surface waters (i.e. lakes and rivers) and, where it discharges to the surface, the ground water of the Province. The PWQO are set at a level of water quality which is protective of all forms of aquatic life and all aspects of the aquatic life cycles during indefinite exposure to the water. The Objectives for protection of recreational water uses are based on public health and aesthetic considerations.
8. These standards are not arbitrary numbers. Rather, they are based on, ?the best scientific information available,? according to Section 2.0 of the Ministry of Environment?s, Setting Environmental Quality Standards in Ontario: The Ministry of the Environment's Standards Plan.
9. Most importantly, the Standards Plan tells us that the PWQO have been set to protect, ?the most sensitive receptors (e.g sensitive sub-populations which includes children).? In the case of surface water quality standards, the MOE has indicated that, ?the health of aquatic life is usually the driving consideration and in this case PWQOs are developed to protect the most sensitive aquatic life-stage for an indefinite exposure, with an added margin of safety.?
10. The submitters assert that a consistent failure to meet PWQO both in rivers and at bathing beaches is also a failure to minimize the environmental threats presented by E. coli. We are particularly concerned that sensitive populations may be adversely impacted by constant bacteria contamination in our waterways.
Failure to meet the third objective of Procedure F-5-5 has meant that all of our beaches are posted due to high counts of bacteria every summer, robbing our communities of their assets.
11. Since 1995, Toronto has seen no real improvement in the number of beach closures each year. Its worst years (years with the highest percentage of beaches closed) were 2000, 2001, and 2004. Its best years (years with the lowest percentage of beaches closed) were 1997 and 1998.
12. In 2003 and 2004, Hamilton saw an increase in the number of beach closures, from 31% to 44%. Most markedly, the city?s inner harbour beaches were closed significantly more than the lake beaches in 2004: 89% at Bayfront Park and 83% at Pier 4. These closures are up from 2003, when they were 82% and 43% respectfully.
13. In 2003 and 2004, St. Catharines also saw an increase in the number of beach closures, from 78% to 86%. One of the city?s three beaches has been permanently closed, Jones Beach.
14. All of these closure rates are far from the 5% maximum closure rate set out in F-5-5. Only two of the twenty-one city beaches met the F-5-5 goal in 2003 (toronto's Cherry Beach and hamilton's Van Wagner?s) and 2004 (Cherry Beach and Hanlan?s Beach in Toronto).
15. Further, F-5-5 suggests that water quality monitoring be conducted between June 1 and September 30 to accommodate the swimming season. No city reported water quality data after Labour Day, despite warm air and water temperatures.
Procedure F-5-5 is the best policy in the province of Ontario for protecting urban beaches.
16. Procedure F-5-5 can be compared to other water quality standards, such as the Ontario Water Resources Act, the Environmental Protection Act, and the Ministry of Health?s Beach Management Protocol. From a citizen?s perspective, the OWRA and the EPA cannot satisfactorily protect beaches. The fact is, beaches are typically closed because of bacteria contamination from a number of sources (i.e., combined sewer outfalls). While contamination from each individual source may not be enough to constitute an offence under the Acts, the cumulative impacts may pose a threat to human and aquatic life.
17. Further, these Acts require citizens or enforcement officers to prove environmental impact, typically impaired water quality. In older urban areas such as Toronto and Hamilton, it is often impossible to prove impairment beyond a reasonable doubt. Our cities? waterfronts are contaminated from years of mismanagement, and only Procedure F-5-5 is based on the assumption that every beach closure is a new impairment, rather than the status quo. Thus, Procedure F-5-5 is also the only provincial standard for clean water that affords equality to every community, regardless of its level of urbanization.
18. The Ministry of Health?s Beach Management Protocol requires that local health departments undertake annual beach surveys if their waterfronts suffer from bacteria contamination. These surveys are intended to identify and catalogue specific sources of pollution at our beaches. Unlike F-5-5, the Protocol applies to all Ontario communities, not just those with combined sewer systems. On its surface, the Beach Management Protocol is a powerful tool for cleaning up our beaches. Yet there are two flaws: first, it lacks any enforcement mechanism; second, the Protocol defines a bathing beach as an area where there is, ?a supervised aquatics program,? or is, ?staffed by a lifeguard.?
Unfortunately, our municipalities are exempting themselves from following the protocol simply by not having lifeguards on duty at local beaches. Rather than encouraging municipalities to identify and solve pollution problems at our local beaches, the Protocol is providing them with an incentive to permanently close beaches to the public. We see this pattern in St. Catharines (Jones Beach), Hamilton (Bayfront and Pier 4 beaches), and Toronto (Etobicoke beaches).
19. Unlike the Beach Management Protocol, F-5-5 defines a bathing beach as, ?a strip of shoreline with the physiographic, climatic, access, and ownership attributes necessary to accommodate significant water contact and non-contact recreation under favourable aquatic conditions.? Thus, municipalities are required to ensure clean water across our waterfront, rather than at isolated locations staffed by lifeguards. This, too, is an indicator of F-5-5?s unique ability to ensure equality under environmental law for urban residents.
There is little evidence to suggest that the objectives of Procedure F-5-5 will be met in the near future, for two reasons:
i) municipalities are failing to demonstrate progress
ii) research suggests that voluntary objectives are not as effective at achieving compliance as mandatory standards
Municipalities are failing to demonstrate progress
20. As indicated above, a survey of beach closure patterns in St. Catharines, Hamilton, and Toronto do not indicate progress is being made. Since 1995, Toronto has seen no real improvement in the number of beach closures each year. Its worst years (years with the highest percentage of beaches closed) were 2000, 2001, and 2004. In 2003 and 2004, Hamilton saw an increase in the number of beach closures, from 31% to 44%. Most markedly, the city?s inner harbour beaches were closed significantly more than the lake beaches in 2004: 89% at Bayfront Park and 83% at Pier 4. These closures are up from 2003, when they were 82% and 43% respectfully. In 2003 and 2004, St. Catharines also saw an increase in the number of beach closures, from 78% to 86%.
21. Recent decisions by the City of toronto's Works Department further highlight the tension between clean water objectives and program implementation. While the Works Department staff are aware of the objectives of Procedure F-5-5, they recommended against the Works Committee proposal to raise water rates by 9% in 2004. These rate increases would have paid for the system upgrades and repairs that are required to meet the goals of F-5-5. According to media reports, the department recommended against the increase because it, ?wasn?t able to spend all the money allocated for water-system capital projects [in 2003].?
Voluntary objectives alone cannot achieve goals
22. Following the tragic outbreak of E coli in Walkerton, Justice O?Connor became one of the country?s leading authorities on water protection and enforcement. In his report on Part 2 of the Walkerton Inquiry, Justice O?Connor recognized value of mandatory abatement:
The hallmark of mandatory abatement, whatever form it takes, is that the required measures are compelled by legal obligation and are subject to enforcement proceedings ? Mandatory abatement can convert a requirement under a government guideline or policy into a legally enforceable prescription, similar to a provision in legislation or regulation.
(pg. 440)
23. Justice O?Connor went on to criticize the Ministry of Environment for continuing to rely on ineffective voluntary abatement tools, after concerns about its efficacy were articulated in the 1994 Auditor General?s Report and the 1995 MOE Compliance Guideline (pg. 441). He wrote further,
Mandatory orders carry greater force than do voluntary measures. If they are breached, they can result in the commencement of enforcement procedures or, as discussed below, an administrative penalty. Voluntary abatement tools, on the other hand, can result in confusion. The clear message behind them is that the deficiency is not as serious as one that would merit a mandatory order.
(pg. 443)
It is for precisely this reason that Justice O?Connor recommends giving the force of law to Ontario Water Quality Objectives (which was done for drinking water) and that the Ministry of the Environment increase its commitment to the use of mandatory abatement (Recommendation #74, Part II). The Government of Ontario has pledged to implement all of Justice O?Connor?s recommendations.
24. The Executive Research Group?s recent best practices review provides further evidence to support Justice O?Connor?s observations. The report, which was commissioned by the Government of Ontario, cites a number of authorities: ?Absent the plausible threat of enforcement, cooperative approaches to achieving compliance seem to have only limited effect on regulated entities,? (Crow et al, pg. 8) and, ?The fundamental factor inducing compliance with best management practices or standards is strong enforcement,? (Krahn, pg. 10).
25. In his recent book, Unnatural Law, noted environmental lawyer David Boyd describes two of the country?s prominent studies on mandatory abatement (pg. 244):
Numerous studies have examined the effectiveness of voluntary programs in achieving environmental objectives. A study conducted in 1996 surveyed 1,547 large corporations and institutions about factors motivating them to take action on environmental issues. Compliance with regulations was identified by 92 percent of corporations surveyed as an 'important motivating factor.' In second place, at 69 percent, was director and officer liability for environmental offences. Down at fifteenth place, with only 16 percent of corporations surveyed identifying them as an important motivating factor, were voluntary programs. A report by Environment Canada in 1998 also provides compelling evidence of the inadequacy of voluntary measures. The study looked at nineteen industrial sectors and found that sectors relying on voluntary measures and self-monitoring had a compliance rating of 60 percent, whereas industries subject to regulations, consistent inspections, and enforcement had a compliance rating of 94 percent. The study concluded, 'Reliance on voluntary compliance was demonstrated to be ineffective in achieving even a marginally acceptable level of compliance.'
Boyd is referring to: KPMG Chartered Accountants. 1996. Canadian Environmental Management Survey. Toronto: KPMG and Krahn, Peter K. 1998. Enforcement vs. Voluntary Compliance: An Examination of the Strategic Enforcement Initiatives Implemented by the Pacific and Region Yukon Regional Office of Environment Canada, 1983 to 1998. Vancouver: Environment Canada.
This request is consistent with the Ministry of Environment?s Statement of Environmental Values.
26. F-5-5 recognizes that our bathing beaches are part of a larger ecosystem. By using beach closures as water quality indicators for our communities, we can assess whether contaminated runoff is entering our waterways and whether remediation programs are effective. Second, F-5-5 focuses on pollution prevention; this is consistent with the Ministry?s value of environmental protection. Third, F-5-5 emphasizes protection of our local waterways, including Lake Ontario, one of the most significant freshwater resources in our province.
27. The submitters? request is also consistent with the purposes of the Environmental Bill of Rights. Only by ensuring our beaches are open and that no dry weather overflows occur can we restore and protect the integrity of our urban environment. Only by taking steps to halt the constant pollution of our cities? waterways can we begin to ensure a healthy environment for the years to come. Finally, only by following Procedure F-5-5 can we ensure that the right to clean water, as identified in the EBR, is protected for every citizen of Ontario.