Thursday, October 10, 2013

Ontario's Environmental Commissioner Weighs in on Environmental Penalties for Spills to Air

Review of Application R2012014:
2.2.15 Need for Environmental Penalties for Spills to Air
(Review Denied by MOE)

 Keywords: Environmental Protection Act (EPA); Ontario Water Resources Act (OWRA); air
pollution; air quality

 Background/Summary of Issues

Under the Environmental Protection Act (EPA) or the Ontario Water Resources Act (OWRA), the
Ministry of the Environment (MOE) can issue an environmental penalty order as an abatement tool
to require certain violators to pay a penalty when a spill or unlawful discharge to water or land
occurs. Currently, MOE cannot issue environmental penalty orders for air violations. In December
2012, the ECO received an application requesting a review of the legislation, regulations and
mechanisms that enable the environmental penalties program, in order to consider expanding the
scope of the program to include discharges and emissions of pollutants to air, including a review of
section 182 of the EPA and O. Reg. 222/07 – Environmental Penalties made under the EPA.

The application was sent to MOE for consideration.

Environmental Penalties

MOE uses a number of compliance and enforcement tools to address violations of the ministry’s
laws; the tool used should be proportionate to the risk presented by the incident, the compliance
history, and the response of the violator. The variety of tools available to MOE includes education
and outreach, warnings, orders and prosecutions.

An environmental penalty order is a mandatory abatement tool that is used by MOE to encourage
companies to comply with environmental laws and to allow for swift remedial action in the event of
a spill, discharge, or other environmental violation. An order can only be issued to the
approximately 140 facilities that belong to one of nine industrial sectors prescribed in the
Municipal-Industrial Strategy for Abatement regulations. The issuance of an order is not a form of
prosecution; in fact, a person can be given an order and prosecuted for the same violation. MOE’s
Compliance Policy (2007) recommends the use of environmental penalty orders as an option for
responding to violations that fall into compliance categories II and III, which are generally more
severe. In Part 3.4 of our 2007/2008 Annual Report, the ECO observed that environmental penalties
should provide MOE staff with “a faster, less resource intensive, and less costly means of bringing
contraveners into compliance with provincial environmental laws” than prosecutions alone.

Expanding the Framework to Air Pollution

The applicants alleged that under the current regulatory framework, it is challenging for MOE to
swiftly and successfully prosecute air violations. According to the applicants, the absence of court charges and fines for air violators over the past several years demonstrates the need for more tools
to penalize air polluters. The applicants stated that, while charges and fines for air violations are
rare,  this is not an indication of compliance, as Hamilton industrial operators regularly violate
Ontario’s opacity rules, but are rarely, if ever, charged and fined.

The applicants stated that the significant health and economic costs associated with poor air quality
justify the need to ensure MOE has effective tools for abatement.

The applicants requested that MOE undertake a review to consider broadening the framework to
include spills to air, since the environmental penalties framework has proven to be beneficial for
spills to land and water. They suggested that expanding the program could provide a viable and
efficient abatement approach to ensuring that Ontario’s air rules are upheld, and assist in reducing
air emissions.

The Ontario Community Environment Fund

The funds collected through environmental penalty orders are directed to the Ontario Community
Environment Fund (OCEF), a dedicated fund that is used to support local projects focused on
environmental remediation, research and education relating to spills and restoration of the
environment, and projects related to spill preparedness, in the areas where the violations occurred.
The applicants proposed that, should MOE expand the environmental penalty program to include
spills to air, funds collected from penalties could be used for projects and initiatives focused on
research and education related to spills to air, similar to the OCEF. This would assist in making
necessary improvements to air quality and public health in Ontario communities.

Five-Year Review

Under the EPA, at least every five years, the Minister of the Environment is required to review the
operation of the environmental penalty program, including its effects on prosecutions, and provide
any recommendations on the contraventions to which, and circumstances in which, orders should be
issued. The applicants requested that the five-year review consider the expansion of the scope of
environmental penalties to include air emissions.

MOE completed its first five-year review of the program in December 2012, and found that
between August 2007 and December 2011, the ministry issued 62 environmental penalty orders for
132 violations, resulting in a total contribution of $779,482.45 to the OCEF. MOE found that
environmental penalties “fill a niche in the compliance toolkit that provides a sufficient deterrent
to unlawful discharges and allows the ministry to address non-compliance faster and more effective
than other compliance and enforcement tools.” The review did not consider or recommend
expanding the program.

 Ministry Response

In February 2013, MOE informed the applicants that it had completed its preliminary assessment of
the application and denied the review. The ministry stated that its assessment was based on the
evidence provided by the applicants, information in MOE’s files, and the Environmental Penalty
Program Five Year Review (December 2012).

MOE stated that Ontario already has a strong framework of policies, acts and regulations for
managing emissions to air and protecting air quality. The ministry advised the applicants that it is
implementing a number of measures that will further address air emissions, improve air quality, and
work to reduce both local and regional air pollution impacts in communities. This includes the

national Air Quality  Management System and Actions addressing: industrial emissions (eg sector-based technical standards under  O. Reg. 419/05 – Local Air Quality, made under the EPA),  mobile source emissions (e.g., Drive Clean program); and local community concerns (e.g.,
working with the Clarkson and Oakville communities).

The ministry advised the applicants that its existing compliance and enforcement toolkit includes a
range of tools for air violations such as education, voluntary abatement plans, orders, the issuance,
suspension or revocation of environmental compliance approvals, and prosecution. For example, the
ministry’s compliance program targets priority areas and focuses on activities that pose the highest
environmental risk. MOE further stated that “each situation is evaluated on a case-by-case basis to
determine which abatement or enforcement tool is most appropriate for obtaining quick action to
mitigate the effects of the violation, achieving compliance with environmental laws, and improve
environmental performance in the immediate and long term.”

MOE stated that Ontario’s air quality continues to improve. For example, both emissions and
outdoor levels of air pollution have decreased significantly over the past decade. MOE also
indicated that the matters sought to be reviewed are otherwise subject to periodic review and that
it completed and published its first environmental penalty program review report in December

Other Information

In 2011, MOE conducted an investigation under the Environmental Bill of Rights, 1993 over concerns
of dust emissions from the Essroc Canada Inc. (Essroc) cement manufacturing facility, north of the
Town of Picton. In reviewing MOE’s handling of that application, the ECO was disturbed that MOE’s
response was exceedingly slow and weak despite the ministry’s knowledge that Essroc’s fugitive
emissions were causing adverse effects for the applicants and area residents for almost a decade.
The ECO further found it problematic that the ministry was unable to complete the necessary
background work before the limitation period to lay charges expired, and suggested that the
ministry assess its investigative capacity and the sufficiency of the limitation period in the EPA. For
more information, see Chapter 5.3 of Part 2 of the ECO’s 2011/2012 Annual Report.

ECO Comment

The applicants raised valid points on the need for more compliance and enforcement tools to
address air violations, and the ECO believes that MOE should have at least conducted a review to
consider an expansion of the environmental penalties program.

MOE’s five-year review of the environmental penalties program found that it fills “a niche in the
compliance toolkit” because it deters unlawful discharges to land and water and allows the ministry
to address non-compliance faster and more effectively than other compliance and enforcement
tools for land and water violations. Like land and water pollution, air pollution can have adverse
effects on environmental and human health. Yet, MOE cannot issue an environmental penalty order
when a spill or unlawful discharge occurs to air. The ECO previously suggested in our 2007/2008
Annual Report that MOE consider, during its five-year review, extending the environmental
penalties program to include air.
The ECO believes that there may be a gap in MOE’s compliance and enforcement toolkit to address
air violations, as the applicants highlighted through the absence of court charges and fines for air
violators in recent years. As reported in our 2011/12 Annual Report, MOE’s slow and feeble response
in the Essroc case illustrates the need for better compliance and enforcement options for air.
Expanding the environmental penalties program to include air violations could fill this gap by
discouraging illegal discharges and enabling the ministry to address non-compliance quicker and
more effective than other compliance and enforcement tools.

The applicants also raised a convincing suggestion that, if the environmental penalties program
were extended to include air spills, MOE could also expand the OCEF to allow the funds to be used
for projects and initiatives focused on research and education related to spills to air. The ECO is

disappointed that MOE did not even comment on this suggestion.

Thursday, October 3, 2013

Environmental Penalties for Spills to Air – An Epic Saga

Back in July of 2005, the Province of Ontario passed a  ‘environmental spills bill’ enabling front line staff in the  Ministry of the Environment   to issue environmental penalties’ or ‘EPs’ to polluters for spills to land and water.   A recently issued 5 year review of the implementation of the EPs program confirmed that this approach has been a resounding success.    In the review, the MOE explains that:

“(E)nvironmental penalties fill a niche in the compliance toolkit that provides a
sufficient deterrent to unlawful discharges and allow the ministry to address non-
compliance faster and more effectively than other compliance and enforcement tools. 

The report also notes that “(E)nvironmental penalties can be issued quickly compared to the time required to undertake a prosecution.  This will encourage facilities to take swift action to abate the effects of the contravention and prevent its recurrence”. 

One glaring omission from the MOE spills bill that every Hamiltonian needs to be aware of and concerned about is the fact that THERE ARE NO EPs FOR SPILLS TO AIR!  However, this reality is not due to lack of effort from concerned Hamiltonians to see the environmental penalties program expanded to include spills to air. 

The Clean Air Hamilton Attempt
The first local effort to see EPs for spills to air emerged a year ago through conversations at a Clean Air Hamilton  (CAH) meeting.    There was general agreement around the table at the time that EPs for spills to air made a lot of sense as an additional tool to help to tackle problem emissions.  A suggestion was made that CAH prepare and submit an Application for Review under the Ontario Environmental Bill of Rights requesting that the MOE review the relevant legislation/regulations and consider including EPs for spills to air. 

The application was prepared by several CAH members, including me, and was brought back to the group’s November 2012 meeting for discussion.    But it was at that meeting that it became very clear that there were CAH members who did not support the submission of the application.  Representatives from the city’s two steel mills stated very emphatically that they did not believe EPs for spills to air would lead to more action from them as they felt they were already doing all that they could be doing to address their air emission challenges and EPs wouldn’t lead to additional improvements.   Further, they stated that CAH functions on the basis of consensus, and they – as members of CAH -  were unwilling to support the submission.   

EH Signs On to Environmental Bill of Rights Submission – MOE Declines Request
The application was, therefore, not submitted through Clean Air Hamilton.  Instead,  two individuals signed on (including me as a representative of Environment Hamilton) and submitted the Application for Review. 

The MOE decision on the Application for Review came in January of this year, right after the release of the MOE 5 Year Review of the EPs for spills to land and water program.  The MOE decision on the application was that “...the public interest does not warrant the requested review.”  While the review acknowledged that “...the Environmental Penalty Program for spills to land and water has been beneficial toward achieving compliance and effective at reducing violations”, the MOE was still unwilling to consider EPs for spills to air.   The reasons, in summary, were as follows:

            Some measure of MOE resources would be required to conduct a review of this
            request.  All available MOE resources are currently dedicated to implementing the
            MOE’s existing air quality management framework as well as upcoming initiatives
            that will further address industrial emissions to air.

The decision from the MOE was disappointing to say the least.    While we continue here at Environment Hamilton to document and report problems with visible emissions from the industrial we are becoming increasingly frustrated that there is not a effective tool in place to help MOE staff to take swift and decisive action where these chronic visible emission problems are concerned. It’s no wonder to us that these emission problems have become chronic.

The ArcelorMittal Dofasco Charges for 13 ‘Spills to Air’
And right on the heels of our failed attempt to convince the MOE, through the Environmental Bill of Rights process, to consider including EPs for spills to air to the environmental penalties legislation, we learned that 13 charges had been laid against ArcelorMittal Dofasco for visible emission violations.   This triggered the start of a series of court appearances starting on April 2nd  when a brief appearance occurred with the agreement that MOE would disclose all evidence to the company’s lawyers in preparation for a second court date set for June 4th.  At that June session we then learned that MOE had failed to disclose any of its evidence so the Justice of the Peace ordered that disclosure happen by August 9th in preparation for a September 3rd court appearance.  Incredibly enough, we arrived to observe the third court session  only to learn that MOE had not disclosed any of its evidence until a week before the September 3rd appearance, despite the order from the Justice.    This put the power in the hands of the company, and  their solicitors took full advantage by requesting an adjournment until December 3rd of this year, arguing that they only had the evidence for a week, and the MOE’s lawyers were in no position to argue against the 3 month adjournment.  And so, the MOE has essentially caused an already long and drawn out court process to become even longer!   It is likely the company won’t see any fines for violations that took place in 2012, until 2014!

Utter Frustration Leads to EH Request to Meet with MOE Deputy Minister
The combination of the failure of the Application for Review and the ridiculous delays around the ArcelorMittal Dofasco court proceedings left us here at Environment Hamilton, along with many community members,  feeling utterly frustrated.  Our experiences to date have left us even more convinced than ever before that EPs for spills to air are a necessary and critical tool for MOE abatement staff to have available in their toolkit if we are ever to see chronic visible emission problems  resolved in Hamilton’s industrial core. 

And so, we requested an opportunity for Environment Hamilton to meet with the MOE’s Deputy Minister, Paul Evans. Evans is the highest ranking bureaucrat within the MOE.  We were pleased when Evans agreed to a meeting which would also include the MOE’s Assistant Deputy Minister Karen Matthews.  The meeting took place on September 30th in Toronto.  I attended as the representative of Environment Hamilton.
The meeting served as a good opportunity to share Environment Hamilton’s frustration with the AM-Dofasco court proceedings but also, more importantly, to express EH’s concern about the lack of MOE willingness to consider EPs for spills to air.   An extensive collection of emission photographs was shared with the DM and ADM in order for them to see what EH and other community members are observing on a regular basis in the industrial core (view them all in the ‘Spills to Air’  photo album in the album section on Environment Hamilton’s Facebook page).  We talked about the steel mills and the scrap yards as particularly problematic sources of emissions.  And I shared EH’s reservations over the ability of the MOE’s current air regulatory framework to resolve the chronic visible emission problems  that impact  our community – especially neighbourhood near the industrial core.    Despite sitting around a boardroom table covered in not-so-pretty pictures, the DM made it clear that there is no interest at the MOE in pursuing EPs for spills to air at this time.   I asked why there was no interest and he cited a number of issues including: 

1. The requirement to create a program to direct any fine monies collected to community
    programs that address air quality issues. 
2. The challenge in defining the impacted area - Spills to water are defined as occurring within
    watersheds and fine monies collected within a given  watershed are disbursed to initiatives
    within these boundaries.   To do this for air would be a challenge as air pollution can travel
    extended distances. 

3. The requirement to amend the Environmental Protection Act and associated regulations in
     order to include spills to air and the timing of this requirement.   

The DM also spoke about the pursuit of technical standards for the iron and steel and federal level efforts to develop an Air Quality Management System (AQMS) that includes the delineation of air zones as two emerging pieces of the provincial air framework.  Both the DM and the ADM expressed strong optimism that the provincial air management framework has or is getting what it needs to resolve chronic visible emission problems. 

Environment Hamilton has been actively engaged in various ways in both the provincial and federal level processes and we simply do not share the optimism expressed byt the DM and ADM.   With all due respect to the DM and ADM, we are left feeling that none of the reasons provided by MOE are adequate to justify not pursuing an EPs program for spills to air.  We are also not convinced that the air framework – even with the additional pieces that are coming – will be enough to resolve challenges with chronic visible emissions.  We will continue to push for the province to develop and implement an Environmental Penalties Program for Spills to Air.   Consider calling your Member of Provincial Parliament and telling them that you want to see an EPs Program for Spills to Air!