The existing Toronto bylaw is not as strict as the MOE model, but the new one will be
much stricter. Acceptable levels for toxic metals in sanitary sewage- cadmium, chromium,
copper, lead, mercury, nickel, selenium, zinc- will be cut significantly to protect the
quality of sewage sludge. In recent years, metal contamination has forced Toronto to
incinerate its sludge at huge expense; now it is going back to putting it on the land.
More controversial than these are the proposed criteria for toxic organic compounds.
For a few, such as benzene and chloroform, Toronto is adopting criteria from the model
bylaw. For others, such as toluene and methylene chloride, the new criteria are 20 times
MOE water quality objectives. These criteria are based on preventing environmental
impacts, and so are easy to understand.
However, criteria for the remaining compounds are not based on impact; instead, their
purpose is "virtual elimination". Accordingly, no more than 10 times the
detection limit (MDL, the smallest level that labs can reliably test for) will be
permitted in sanitary sewage. In storm water, all the toxic materials (including metals)
will be restricted to 4 times the MDL. There are no criteria for these in the model bylaw.
Twelve of the compounds chosen for "virtual elimination" in sanitary sewage
were selected as particularly toxic by the senior levels of government, and are targeted
for elimination in a Canada-Ontario agreement on water quality. What particularly concerns
critics is that Toronto has applied the same approach to nonylphenols and nonyl-phenol
ethoxylates. These compounds have not been designated as toxic substances under national
or provincial laws, although they have been the focus of a high profile campaign by the
World Wildlife Fund and other ENGOs.
In other words, Toronto is using its own judgment to accept the WWF objections, (and
some international precedents) instead of waiting until the "senior" governments
do so.
Other contentious issues include how compliance is measured. The new, lower limits will
make it much more important to use composites and averages rather than single grab
samples.
Still more cuts
The Ontario MOE is still cutting staff, and it will make the process of improving
environmental controls very difficult in the next few months.
Staff in the merged Approvals/ Assessment branch received their pink slips at the end
of July. The regional approvals staff are now gone, but no one has yet been hired to
replace them at head office. Thus, a small "rump" staff in Toronto is struggling
to handle the whole province's approvals. They also have to move their office; most must
compete for new positions.
The bottom line? The existing approvals backlog will get a lot worse before it gets
better. Expect delays!
New Minister
Great news: The new federal Minister of the Environment is David Anderson. Mr. Anderson
is knowledgeable, influential, and passionate about environmental issues. His appointment
should signal a real upsurge in federal attention to the environment. Even Prime Minister
Chretien was quoted as saying "I'm becoming- I am- interested in environmental
issues."
BC Forest case slams gov't
The BC Supreme Court has issued a decision lambasting the British Columbia Ministry of
Forests for breaching its contract with Carrier Lumber. Damages could exceed $100 million.
According to the judgment, the Ministry was faced by a huge natural disaster caused by
insect infestation in a remote area. They were desperate to have someone cut and remove
the infected timber, but it wasn't economic. Finally they induced Carrier Lumber to take
on the job, in exchange for a 10 year contract to cut 5 million board feet of wood. The
contract was "subject to the Forest Act". After Carrier had invested millions of
dollars, built the mills and infrastructure, and brought the infestation under control,
local native peoples protested the contract, and blockaded the logging roads.
Caught between their fiduciary duties to the First Nations, and their contract with
Carrier, the judgment says the government decided to sacrifice Carrier. They encouraged
the native people in their blockade, and amended the Forest Act, increasing fees and
overriding existing contracts. The new Act specifically forbade claims for compensation.
Carrier was ultimately forced to close their mills, having cut less than half of the
promised wood, and much of that infested and of little value. The judge held that this was
an outrageous breach of contract.
The flavour of the judgment is reflected in some classics of judicial outrage:
"what information [Carrier] were given was not often marred by truthfulness, accuracy
or candour", and "Reeve's letter is a masterpiece of double-dealing
deception". However, he's given the court of appeal lots to work with, especially his
sputtering disregard of the "no compensation" clauses in the Forest Act
amendments. We're still thinking about how the case affects larger policy issues,
including the Crown's competing duties, and when regulation / downzoning becomes a US
style "taking" requiring compensation.
Wallet Cards
Do you have our handy laminated wallet cards? Do all your
supervisory staff know What to Do When the Inspector Comes? or how and when to
report Spills? Will they remember in the heat of the moment? If not, our wallet
cards may help.
Questions? Call Dianne Saxe!
- 66 Russell Hill Road Toronto, Ontario M4V 2T2
- (416) 962 5882
- Fax: (416) 962 8817
- e-mail: dsaxe@envirolaw.com
____________THE DIANNE SAXE LETTERS
