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!

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