Serving Public
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SERVING THE PUBLIC ANNUAL REPORT 2012/2013 "The government is us; we are the government, you and I." –Theodore Roosevelt Environmental Commissaire à Commissioner l’environnement of Ontario de l’Ontario Gord Miller, B.Sc., M.Sc. Gord Miller, B.Sc., M.Sc. Commissioner Commissaire October 2013 The Honourable Dave Levac Speaker of the Legislative Assembly of Ontario Room 180, Legislative Building Legislative Assembly Province of Ontario Queen’s Park Dear Speaker: In accordance with Section 58 of the Environmental Bill of Rights, 1993, I am pleased to present the 2012/2013 Annual Report of the Environmental Commissioner of Ontario for your submission to the Legislative Assembly of Ontario. Sincerely, Gord Miller Environmental Commissioner of Ontario 1075 Bay Street, Suite 605 1075, rue Bay, bureau 605 Toronto, ON M5S 2B1 Toronto (Ontario) M5S 2B1 Tel: (416) 325-3377 Tél : (416) 325-3377 Fax: (416) 325-3370 Téléc : (416) 325-3370 1-800-701-6454 1-800-701-6454 S ERVING THE PUBLIC CONTENTS 2012/2013 Annual Report SERVING THE PUBLIC 4 PART 1 | The Environmental Bill of Rights 7 1.1 The Tookit of the EBR 8 1.2 Use and Misuse of the Environmental Registry 11 1.2.1 Quality of the Environmental Registry 14 1.2.2 Orphaned Proposal Notices on the Environmental Registry 19 1.3 No Right to Know: Instruments and Section 32 of the EBR 21 1.3.1 MOE’s Review of the EBR 23 1.4 Class Environmental Assessments and the Environmental Registry 23 1.4.1 Class EA for Activities of the Ministry of Northern Development and Mines under 27 the Mining Act 1.5 Ministries' Handling of Applications for Review and Investigation 28 1.6 Failure to Meet EBR Obligations for Statements of Environmental Values 30 1.7 Keeping the EBR in Sync 31 1.8 Appeals, Lawsuits and Whistleblowers 34 1.8.1 No Timely Notice of Planning Act Appeals 39 1.9 The ECO Recognition Award 40 1.10 Education and Outreach 41 1.11 The Environmental Commisioner of Ontario's Annual Site Visit 42 PAT R 2 | The Role of Government as Environmental Steward 45 2.1 The Abdication of Natural Resources Management by MNR 46 2.2 Shielded from Public Scrutiny: Bill 55's Sweeping Changes to Environmental Laws 55 2.3 A Smaller and Smaller Piece of the Pie: The Budgets of MNR and MOE 57 PAT R 3 | Information, Science, and Monitoring 63 3.1 Looking Before We Leap: Making Informed Decisions for the Far North and the 63 Ring of Fire 3.1.1 Environmental Monitoring Necessary for Decision Making in the Far North 68 3.1.2 The Big Picture: Regional Strategic Environmental Assessment in the Ring of Fire 72 3.2 Land Use Planning: Blind-Eye Measurement and Milquetoast Monitoring 76 3.3 Ontario's Forgotten Habitats: Tallgrass Communities, Alvars, and Coastal Dunes 82 3.3.1 The Beginning of the End of Stewardship? 87 3.4 Who Hunts Snapping Turtles? 88 SERVING THE PUBLIC 2012/2013 Annual Report PAT R 4 – Developing Environmental Policy 93 4.1 Ontario Government Plan to Conserve Biodiversity 93 4.2 Stopping the Spread: Invasive Species Plan 99 4.3 Neglected Obligations: No Conservation Planning for Polar Bears 103 4.4 Stalling Progress: No Conservation Planning for Lake Sturgeon 105 4.5 Missing Metrics: The Lake Simcoe Fish Community Objectives 107 4.6 Protected Areas Planning: A Lost Priority 112 4.6.1 Turtle River – White Otter Lake Provincial Park Management Plan 116 4.6.2 What Happens When Parks Stop Making Enough Money? 117 4.7 Shale Gas - Regulate Before Fracking Begins 119 4.8 Channelling the Earth's Energy: Ground-source Heating and Cooling Systems 123 4.9 From Peak P to P Soup: The Phosphorus Challenge on Ontario Farms 129 PAT R 5 – Taking Action to Manage and Protect the Environment 137 5.1 A Renewed Commitment to Great Lakes Protection 137 5.2 Expansion of MOE's Environmental Activity and Sector Registry 144 5.3 Plans and Permits: New Requirements for Early Mineral Exploration 147 5.4 Rehabilitating Abandoned Mines 151 5.5 Air Emissions for an Asphalt Blending Facility 156 5.6 A New Compost Framework for Ontario 158 5.7 Using the EPA to Regulate the Safe Disposal of Waste Pharmaceuticals and Sharps 161 5.8 Filling the Gaps in the Regulation of Fine Particular Matter 166 Appendix A – 2012/2013 Annual Report Recommendations 170 Appendix B – Financial Statement 171 Appendix C – Ministry Comments on the Annual Report 174 ABBREVIATIONS 186 INDEX 187 SERVING THE PUBLIC y relationship with the Ministry of the Environment (MOE) began 37 years ago in 1976. My professor at university received a small contract from MOE that I completed, and that helped M fund my graduate school research work. Subsequently, I had an external consulting contract with MOE and then in 1980 I became a full-time employee on contract. In 1982 I became a full-time member of the Ontario Public Service (OPS). I have been in and out of the OPS twice since then and, of course, for the last 13 years I have been the Environmental Commissioner. But despite my hopping around, I have had a constant relationship with MOE for all those 37 years. And I have seen change. Not just the sweeping changes that technology has brought to the way we do business, but technology was certainly simpler. In 1980, computers were mainframes occupying whole buildings and where data were input on punch cards. We did not even have fax machines so communication was via the postal service, with the corresponding response times. Technology aside, the differences between then and now are in how we as public servants are expected to do our jobs. In those days, just as the name implies, we saw ourselves as – and we were – servants of the public and working in the public interest. The public interest in MOE included but was not limited to working with industry to limit pollution to the air and water, making sure solid and liquid wastes were properly managed, assuring that sewage treatment plants and drinking water treatment were properly operated, and responding to emergencies like transportation spills. Our services were primarily delivered out of district offices throughout the province, although some programs ran out of the regional or head office. District staff were in the communities and known to the people and in contact with municipalities, businesses and the media. We were expected to be on top of local problems and situations quickly and had the authority to engage the problems. But most importantly for the technically complex issues of the environment we were backed by a truly world-class assembly of regional and head office biologists, chemists, engineers and industrial sector experts who were at the disposal of field people. Collectively we were the technical and professional peers of the industrial and municipal professional staff we oversaw (and sometimes we were more qualified). It was not uncommon for industries that we engaged with one day in heated pollution control negotiations to call us a few days later for technical advice and assistance on some other problem. When we attended public meetings held by community groups, municipalities or even industries, MOE staff were seen as professionals working in the best interest of the public. And, we were respected for it and the public had faith in us as public servants. At MOE we were not perfect, but on the whole we were present, effective and largely successful in substantially reducing pollution and greatly improving environmental management. We were serving the public, and it is my observation that the other major front-line ministries like the Ministry of Natural Resources were doing so also. Then somewhere in the early 1990s things began to change. I was in MOE management through most of the ‘90s and I remember the tone of the conversation changing. It became no longer about what we were doing or how well or efficiently we were doing it. Rather, the direction from higher levels of government was about doing only the minimum required and getting rid of responsibility for some of the things we were doing, all to save money. 4 ENVIRONMENTAL COMMISSIONER OF ONTARIO That is how fateful decisions were made to cut back on inspections of drinking water treatment facilities, ultimately contributing to the tragic deaths and illnesses at Walkerton a few years later. Next, there came staff cuts. First it was a compression of management layers, which sounds efficient but in its application resulted in the elimination of many of the scientists and other experts who were the core of MOE expertise. Later, field staff were cut and many district and sub-district offices were closed altogether, removing direct contact with many communities. Finally, pollution abatement and enforcement activity were toned down, reducing the relevance of MOE to the people even further. As the years have gone by in the 21st Century, financial and staffing constraints have continued despite the tremendous growth in the economy and human population and the increasing severity of environmental challenges like climate change. MOE today is a shadow of its former self. It still has some top scientists and experts but cutbacks have hamstrung its capacity to engage the full spectrum of the ministry’s mandate. Its famous Rexdale laboratory still functions (although regional labs are closed) but it no longer has the resources to produce world-class analytical research. Field staff in the districts are overwhelmed and unable to fully engage in the local discourse in communities about environmental concerns.