Small Steps Forward

SMALL STEPS FORWARD Environmental Protection Report 2015/2016 VOLUME ONE: ENVIRONMENTAL RIGHTS The people of Ontario recognize the inherent value of the natural environment.

The people of Ontario have a right to a healthful environment.

The people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.

While the government has the primary responsibility for achieving this goal, the people should have means to ensure that it is achieved in an effective, timely, open and fair manner.

Preamble to Ontario’s Environmental Bill of Rights, 1993 October 2016

The Honourable Dave Levac Speaker of the Legislative Assembly of Ontario

Room 180, Legislative Building Legislative Assembly of Ontario Queen’s Park Province of Ontario

Dear Speaker:

In accordance with Section 58(1) of the Environmental Bill of Rights, 1993, I am pleased to present the 2015/2016 Environmental Protection Report of the Environmental Commissioner of Ontario for your submission to the Legislative Assembly of Ontario. This year’s report is presented in two volumes.

Sincerely,

Dianne Saxe

Environmental Commissioner of Ontario

Annual Report 2015/2016 1

Table of Contents

Commissioner’s Message 4

Executive Summary 6

1. Ministry Compliance with the EBR 18

2. EBR Applications 46

3. Use of the EBR’s Legal Tools 82

4. The ECO at Work 96

5. Recommendations 108

Environmental Protection Report 2015/2016: Volume 1 3 The Ministry of the Environment and Climate Commissioner’s Change (MOECC) makes the largest number of Message environmentally significant decisions and should set a good example in respecting environmental As your Environmental Commissioner, I am the rights. The ECO is glad to see that the MOECC guardian of the Environmental Bill of Rights (EBR), has, at last, begun posting public progress and I report to the Ontario Legislature, and to the updates on its outstanding applications for public, on energy conservation, climate change review. The MOECC has also begun a long- and environmental protection. This report focuses overdue review of the Environmental Bill of Rights on two questions: itself. These initiatives are important and appreciated. However, much remains to be done: 1. Do the environmental rights of Ontarians get enough respect? (Volume 1) and 1. The Environmental Registry, Ontarians’ 2. How well is the Ministry of Natural Resources window on significant government environ- and Forestry (MNRF) conserving biodiversity mental decisions, is hobbled by obsolete in its most recent initiatives? (Volume 2) software and often frustrates public participation. A fix to the software seems to be at Environmental Rights least a year away. The environmental rights of Ontarians need more 2. The MOECC is still responsible for more respect. than 400 outdated Environmental Regis- try proposals, depriving Ontarians of their There has been meaningful progress since I legal right to seek leave to appeal on many was appointed Commissioner in December controversial and important environmental 2015. As we showed in our Special Report decisions. EBR Performance Checkup: Respect for Ontario 3. The MOECC has not completed EBR reviews Environmental Rights 2015/2016, Ontario from as far back as 2009, leaving Ontario government ministries worked hard this year to residents hanging and important policy issues improve their compliance with the EBR. unresolved. One relates to the shameful impact of Sarnia air pollution on the health of This was welcome and overdue. In 2015, ministries the First Nations community of Aamjiwnaang had 1,800 outdated proposal notices on the and other similar air pollution hotspots. Environmental Registry reaching as far back as 4. When the MOECC “completes” a review, it 1996. By the summer of 2016, more than 1,000 does not always deliver what it promised. For of these outdated notices had been brought up to example, the MOECC agreed in July 2015 date. New notices from some ministries became that the public deserves to know when raw of better quality and more helpful to the public. We sewage is dumped into Toronto’s harbour. It welcomed the Treasury Board Secretariat as our happened again in August 2016, but the pub- 15th prescribed ministry. lic still didn’t receive notice.

4 Environmental Commissioner of Ontario By next year’s report, the MOECC should earn The impact was substantial: Ontarians’ trust by respecting and protecting Ontarians’ environmental rights. 1. Invasive species continued to be a serious threat while some practical and inexpensive The MNRF and Biodiversity precautions were ignored; The MNRF is responsible for almost all of 2. Years of fire suppression impaired the eco- Ontario’s biodiversity, including the plants, logical health of our forests and increased animals and natural landscapes for which we are the risk of catastrophic fires; and famous around the world. This biodiversity will 3. Important wildlife populations, like moose, come under increasing threat as climate change bats and amphibians, declined. accelerates. The MNRF has important new tools this year to conserve our biodiversity: a new The MNRF, like other ministries, struggles to fulfil Invasive Species Act, 2015, a new Wildland Fire its many mandates within the constraints of limited Management Strategy, and new moose management resources, and amid the demands of many stake- measures for this iconic but declining species. holders. But the MNRF can, and must, take its These are good steps in the right direction. biodiversity duties more seriously. It has new

tools. Will it use them well? Commissioner’s Message But will MNRF “walk the talk”? Staff Who Go Above and Beyond Unfortunately, we see evidence of the govern- The ECO is impressed by the passion, commitment ment failing to use its tools to provide effective and expertise of many government staff who conservation for Ontario’s species. We have seen devote themselves to Ontario’s environmental instances where the MNRF: well-being, despite obstacles and constraints. With our annual ECO Recognition Award, we are 1. Did what was easiest and cheapest, instead delighted to recognize the initiative of two groups of what works; of civil servants who set outstanding examples 2. Hoped for the best instead of collecting the of environmental commitment and achievement data that are essential for effective species last year. Congratulations to them and to all protection; and the nominees. 3. Relied on others to do the work it should, or used to do, without providing leadership, coordination, funding or accountability.

Environmental Protection Report 2015/2016: Volume 1 5 There has been meaningful Executive Summary progress since I was appointed Commissioner. As your Environmental Commissioner, I am the guardian of the Environmental Bill of Rights (EBR), This was welcome and overdue. In 2015, ministries and I report to the Ontario Legislature, and to the had 1,800 outdated proposal notices on the public, on energy conservation, climate change Environmental Registry reaching as far back as and environmental protection. This report focuses 1996. By the summer of 2016, more than 1,000 on two questions: of these outdated notices had been brought up to date. New notices from some ministries became 1. Do the environmental rights of Ontarians of better quality and more helpful to the public. We get enough respect? (Volume 1); and welcomed the Treasury Board Secretariat as our 2. How well do recent Ministry of Natural 15th prescribed ministry. Resources and Forestry’s (MNRF) initiatives conserve biodiversity? (Volume 2) The Ministry of the Environment and Climate Change (MOECC) makes the largest number of Environmental Rights environmentally significant decisions and should The environmental rights of Ontarians need more set a good example in respecting environmental respect. rights. The ECO is glad to see that the MOECC has, at last, begun posting public progress There has been meaningful progress since I updates on its outstanding applications for review. was appointed Commissioner in December The MOECC has also begun a long-overdue review 2015. As we showed in our Special Report EBR of the Environmental Bill of Rights itself. These Performance Checkup: Respect for Ontario initiatives are important and appreciated. Environmental Rights 2015/2016, Ontario government ministries worked hard this year to improve their compliance with the EBR.

Prescribed Quality of Notices Timeliness of Handling of Considering Co-operation Ministry Posted on the Decision Notices Applications for Statements of With ECO Environmental and Avoiding Review and Environmental Requests Registry Outdated Investigation Values (SEVs) Proposals

MOECC

MNRF

Excerpt from ECO Special Report, EBR Performance Checkup: Respect for Ontario Environmental Rights 2015/2016

6 Environmental Commissioner of Ontario The MOECC should earn Ontarians’ trust by respecting and protecting Ontarians’ environmental rights.

However, much remains to be done: The MNRF and Biodiversity The MNRF is responsible for almost all of Ontario’s 1. The Environmental Registry, Ontarians’ window biodiversity, including the plants, animals and natural on significant government environmental landscapes for which we are famous around the decisions, is hobbled by obsolete software world. This biodiversity is coming under increasing and often frustrates public participation. threat as climate change accelerates. The MNRF 2. The MOECC is still responsible for more than has important new tools this year to conserve our 400 outdated Environmental Registry proposals, biodiversity: a new Invasive Species Act, 2015, a depriving Ontarians of their legal right to seek new Wildland Fire Management Strategy, and new leave to appeal on many controversial and moose management measures. These are good important environmental decisions. steps in the right direction. 3. The MOECC has not completed EBR reviews from as far back as 2009, leaving Ontario But will MNRF “walk the talk”? residents hanging and important policy issues unresolved. One relates to the shameful impact Unfortunately, the MNRF often fails to use its of Sarnia air pollution on the health of the tools to provide effective conservation for Ontario’s First Nations community of Aamjiwnaang species. We have seen instances where the MNRF: and other similar air pollution hotspots. 4. When the MOECC “completes” a review, it 1. Did what was easiest and cheapest, instead does not always deliver what it promised. For of what works; example, the MOECC agreed in July 2015 2. Hoped for the best instead of collecting the that the public deserves to know when raw data that is essential for effective species Executive Summary sewage is dumped into Toronto’s harbour. protection; and When it happened again in August 2016, the 3. Relied on others to do the work it should, or public didn’t receive notice. used to do, without providing leadership, co- ordination, funding or accountability. By next year’s report, the MOECC should earn Ontarians’ trust by respecting and protecting The impact was substantial: Ontarians’ environmental rights. 1. Invasive species continued to be a serious threat while some practical and inexpensive precautions were ignored; 2. Years of fire suppression impaired the ecological health of our forests and increased the risk of catastrophic fires; and 3. Important wildlife populations, like moose, bats and amphibians, declined.

Environmental Protection Report 2015/2016: Volume 1 7 Ontario needs an overall, big picture assessment of our biodiversity. It is the MNRF’s job to provide one, but it doesn’t.

Ontario needs an overall, big picture assessment A strong focus on protecting standing timber of our biodiversity. It is the MNRF’s job to provide for possible future use by the forestry industry one, but it doesn’t. has traditionally been a substantial obstacle to restoring natural fire cycles. The MNRF has The MNRF, like other ministries, struggles to fulfil not yet faced up to the trade-offs between these its many mandates within the constraints of limited two objectives. resources, and amid the demands of many stakeholders. But the MNRF can, and must, take its biodiversity duties more seriously. It has new Regular fire cycles have particular tools. Will it use them well? importance in protected areas.

Walking the Fire Line: Managing and Using Fire in Ontario’s Northern Forests Regular fire cycles have particular importance in protected areas such as provincial parks, which Ontario’s forests need regular renewal by fire. But must conserve Ontario’s biodiversity. Unfortunately, Ontario doesn’t allow enough managed fire in our these areas are starved of fire because Ontario Crown forests to provide ecological benefits and Parks lacks the resources to manage prescribed prevent future catastrophic fires. The MNRF took a burns, and the MNRF as a whole will not assist step in the right direction with a new Wildland Fire them without payment. This is penny wise and Management Strategy that could allow more fires to pound foolish. be left to burn in northern Ontario. Now the MNRF needs to let such fires burn when and where they With climate change gathering speed, northern are needed and appropriate, even if this means the Ontario communities should increase their loss of some potentially harvestable timber: resistance and resilience to forest fire. The Ontario government should ensure all communities • Forest fires are necessary for the ecological near flammable forest become “FireSmart.” health of Ontario’s forests, particularly to enable a diversity of species types and age classes. • Long-term fire suppression can result in older forests that are burdened with excess fuel loads, and more susceptible to catastrophic and uncontrollable fires such as the one in Fort McMurray.

Jack Pine regeneration in Woodland Caribou Provincial Park after the spring 2016 forest fire. Source: Ontario Parks.

8 Environmental Commissioner of Ontario The MNRF is mostly leaving the hard front-line work to municipalities, conservation authorities and private landowners, without provincial guidance, co-ordination,

Phragmites with full seed heads Sources: Leslie J. Mehrhoff, University of expertise or predictable funding. Connecticut. Bugwood.org

Phragmites with full seed heads (left) and a mat of dog-‐strangling vine (right). Sources: Leslie J. Mehrhoff, University of Invasive Species Management in Ontario: Instead, the MNRF is mostly leaving the hard Connecticut; and David Nisbet, Invasive Species Centre. Bugwood.org New Act, Little Action front-line work to municipalities, conservation authorities and private landowners, without Invasive species have huge economic and social provincial guidance, co-ordination, expertise or effects, and are among the biggest threats to predictable funding. The MNRF is not collecting biodiversity. Ontario has Canada’s highest risk enough data to know which threats are the most of invasions by non-native species (e.g., emerald urgent, and which control measures work best. ash borer, Phragmites, zebra and quagga mussels, and Asian carp). Up to 66 per cent of Ontario’s The MNRF should: species at risk are already threatened by established invaders such as garlic mustard (a forest herb), • restrict known pathways of invasive species Phragmites (a grass), and round goby (a fish). spread; • tackle invasive species in provincial parks; Ontario’s new Invasive Species Act, 2015, and • establish advisory panels with scientific the 2012 Ontario Invasive Species Strategic Plan expertise and local and Aboriginal knowledge; are useful tools for managing invasive species. and But the MNRF is taking few concrete actions to • report publicly on progress in managing prevent the introduction of invaders, detect them invasive species. early, or manage and monitor species that are already doing damage. Worse, the MNRF is failing to take basic precautionary steps to block known pathways by which some invasive species spread. Executive Summary

ASSET BASED PROTECTION

CONTAINMENT AREA OCCUPIED

ERADICATION

PREVENTION

TIME

Entry of invasive Species species Small number Rapid increase in distribution Invasive species widespread absent of localised and abundance, many and abundant throughout its populations populations potential range

ECONOMIC RETURN (INDICATIVE ONLY)

1:100 1:25 1:5-10 1:1-5 Prevention Eradication Containment Asset Based Protection

Generalized invasion curve showing actions appropriate to each stage © State of Victoria, Department of Economic Development, Jobs, Transport and Resources. Reproduced with permission.

Environmental Protection Report 2015/2016: Volume 1 9 Biodiversity Under Pressure: Wildlife disease, with climate change playing a growing Declines in Ontario role. The declines of moose, bats and amphibians in Ontario demonstrate that the Ministry The large-scale loss of biodiversity is a crisis of Natural Resources and Forestry needs to act in Ontario and around the world. As well as urgently on habitat protection and biodiversity invasive species, the biggest threats are hu- monitoring. man-caused habitat loss and degradation and

Extinct Extirpated At Risk May Be At Risk Sensitive Secure

Species of Conservation Concern

100

30 Percentages of Species In Group Percentages

0 Lichens Mosses Vascular Freshwater Spiders Insects Cray shes Freshwater Amphibians Reptiles Birds Mammals All Species Plants Mussels Fishes Groups

Proportion of Ontario native wild species in secure and conservation concern categories. Source: Ontario Biodiversity Council (2015). State of Ontario’s Biodiversity. Available at: http://ontariobiodiversitycouncil.ca/sobr.

10 Environmental Commissioner of Ontario The declines of moose, bats and amphibians in Ontario demonstrate that the Ministry of Natural Resources and Forestry needs to act urgently on habitat protection and biodiversity monitoring.

Source: Ryan Hagerty, U.S. Fish and Wildlife Service

Source: Ryan Hagerty, U.S. Fish and Wildlife Service (https://www.flickr.com/photos/50838842@N06/6862339335/Ontario’s Declining Moose Populations ) usedThe MNRF’s Moose Project Climate change is an under CC BY 2.0.Moose are an iconic Ontario species with par- included changes to moose ticular cultural and economic significance. How- harvesting rules, and an increasingly serious threat. ever, Ontario’s moose are in trouble. There are ill-advised proposal (since now about 92,300 moose – down about 20 per abandoned) to increase the cent in the last decade. In nearly half of Ontario hunting of wolves and coyotes. However, the moose management units, too few calves are new restrictions on harvesting moose may not reaching adult breeding age to keep the popu- prevent further population declines. Ontario has lation stable. approximately 98,000 licensed moose hunters – more than one licensed hunter for every moose There are many pressures on moose, includ- in Ontario – plus Aboriginal peoples with a con- ing habitat degradation, disease and parasites stitutional or treaty right to take moose without a Executive Summary (e.g., winter ticks, liver fluke, brainworm), hunt- licence. Based on the MNRF’s estimates: ing, predation and weather. Climate change is an increasingly serious threat.

Moose Population Decline Adult Moose Harvest (2014) Calf Moose Harvest (2014)

Legal limit: 13,499 tags Legal limit: one for each of the 98,000 licensed hunters

-22,700 since early 2000s Estimated resident harvest: 3,020 Estimated resident harvest: 1,403

Aboriginal harvest: Unknown Aboriginal harvest: Unknown

Tourism industry harvest: 601 Tourism industry harvest: 26

Environmental Protection Report 2015/2016: Volume 1 11 A littleA little brown brownbat infected bat with infected white-nose with syndrome white-‐nose Source: syndrome Ryan von Linden/ NewSource: York Department Ryan von of Environmental Linden/New Conservation York Department used under of CC BY 2.0. Environmental Conservation (https://www.flickr.com/photos/usfwshq/5765048289/) used White-noseunder CC BY Syndrome: 2.0. Tragedy of the Bats While white-nose syndrome is by far the major Ontario’s bats are important predators of mos- threat to Ontario’s bats, bats can suffer addi- quitoes and other insects. Since 2010, millions tional losses from human persecution and from of them have died from an invasive fungal dis- wind turbines. The collapse of Ontario’s bat ease called white-nose syndrome. As a result, populations could lead to an increase in insect four of Ontario’s eight native bat species have pests, just as public health authorities are call- become endangered. Bat populations across ing on Ontarians to protect themselves from eastern North America are collapsing. There is mosquito bites because of the spread of insect- no known treatment. borne diseases.

Update: Amphibian Declines Continue Bat populations across eastern North America in Ontario are collapsing. There is no known treatment. Amphibians are the most threatened group of vertebrate animals in the world.

Ontario’s White-nose Syndrome Response Plan Both globally and in Ontario, the most signifi- concentrates on increasing awareness about cant threat to amphibians is habitat loss. Hab- white-nose syndrome, so as to limit the inad- itat degradation (e.g., from pollutants such as vertent spread of the disease by humans. The agrochemicals, pharmaceuticals and road salt), MNRF is also co-operating with other ministries habitat fragmentation, road mortality, overhar- and governments to share information, and to vesting, invasive species, infectious diseases, co-ordinate surveillance and research. climate change, and ozone depletion also put immense pressure on amphibian populations. In 2009, the ECO recommended that the MNRF co-ordinate an inter-ministerial plan to protect and conserve amphibian populations.

BatBat White White-Nose-‐Nose Syndrome Syndrome OccurrenceOccurrence asas ofof August August 2016.6. 201 Source: Source: map by LindseyLindsey Heffernan, Heffernan, PennsylvaniaPennsylvania Game Game Commission. Commission.

12 Environmental Commissioner of Ontario Blanchard’sBlanchard’s Cricket Cricket Frog (Acris blanchardi Frog Acris ( blanchardi) Source: Jessica) Piispanen/U.S. Fish andSource: Wildlife Jessica Service Midwest Piispanen/U.S. used under Fish CC BY and 2.0. Wildlife Service Midwest (https://www.flickr.com/photos/usfwsmidwest/15275071319) Sevenused underyears later, CC BY there 2.0. has been no action, ECO Recognition Award and amphibian habitat (especially wetlands) The ECO is impressed by the passion, commit- continues to decline. Provincial land-use plan- ment and expertise of many government staff ning policies have not effectively protected am- who devote themselves to Ontario’s environ- phibian habitat. In fact, the Ontario government mental well-being, despite obstacles and con- continues to subsidize the destruction of irre- straints. placeable wetlands under the Drainage Act. With our annual ECO Recognition Award, we Meanwhile, the MNRF does not effectively mon- are delighted to recognize the initiative of two itor amphibian populations. Most of Ontario’s groups of civil servants who set outstanding information about our amphibians comes from examples of environmental commitment and unpaid citizen science monitoring programs. achievement last year. This award recognizes These programs are immensely valuable, but their hard work on projects that are innovative, would be far more effective with MNRF leader- go above and beyond legal mandates, better ship, co-ordination and support. Ontario cannot Ontario’s environment and that meet the re- effectively conserve biodiversity with uncoordi- quirements and purposes of the EBR. nated piecemeal monitoring. The 2016 ECO Recognition Award goes to MNRF staff for the Mid-Canada Radar Site Clean-up in

Polar Bear Provincial Park. An honourable men- Executive Summary tion goes to Ministry of Transportation staff for their project to restore fish passage in a tributary to the Saugeen River, near Southampton, Ontario. The ECO congratulates all the ministry staff who implemented these exceptional environmental projects.

Mid-Canada Radar Site Clean-up in Polar Bear Provincial Park. Source: Ontario Parks/MNRF

Environmental Protection Report 2015/2016: Volume 1 13 to hold the government accountable for those The Environmental decisions. The EBR empowers Ontarians to par- Bill of Rights ticipate in environmental decision making in a number of different ways. Ontario’s Environmental Bill of Rights, 1993 (EBR) is an environmental law unlike any other in the The EBR’s “toolkit” is a collection of govern- world. The purposes of the EBR are to: ment obligations and public participatory rights that work together to help ensure that the pur- • protect, conserve and, where reasonable, poses of the EBR are met. restore the integrity of the environment; • provide sustainability of the environment; and Statement of Environmental Values • protect the right of Ontarians to a healthful The EBR requires each prescribed ministry to environment. develop and publish a Statement of Environ- mental Values (SEV). An SEV describes how the To achieve these goals, the EBR requires the On- ministry will integrate environmental values with tario government to consider the environment in social, economic and scientific considerations its decision making. Certain ministries, known when it makes environmentally significant de- as “prescribed ministries,” are given varying re- cisions; ministries must consider their SEVs sponsibilities under the EBR. During the ECO’s when making decisions that might significant- 2015/2016 reporting year (April 1, 2015 – March ly affect the environment. Essentially, an SEV 31, 2016), there were 14 prescribed ministries. reveals how a given ministry views its environmental responsibilities. The ministry does not In July 2016 (outside of the ECO’s 2015/2016 always have to conform to its stated values, but reporting year), a 15th ministry was prescribed it must explain how it considered them when under the EBR: the Treasury Board Secretariat making a decision. For information about pre- (TBS). scribed ministries’ consideration of their SEVs during this reporting year, see Chapter 1.5 of While the government has the primary respon- this report. sibility for protecting the natural environment, the EBR recognizes that the people of Ontario have the right to participate in environmentally significant decision making, as well as the right

Aboriginal Affairs (MAA)* Health and Long-Term Care (MOHLTC) Agriculture, Food and Rural Affairs (OMAFRA) Labour (MOL) Economic Development, Employment and Municipal Affairs and Housing (MMAH)* Infrastructure (MEDEI)* Natural Resources and Forestry (MNRF) Education (EDU) Northern Development and Mines (MNDM) Energy (ENG) Tourism, Culture and Sport (MTCS) Environment and Climate Change (MOECC) Transportation (MTO) Government and Consumer Services (MGCS)

*In June 2016, the Ontario government re-organized several ministries: the Ministry of Aboriginal Affairs was renamed the Ministry of Indigenous Relations and Reconciliation; the Ministry of Economic Development, Employment and Infrastructure into two separate ministries: the Ministry of Economic Development and Growth, and the Ministry of Infrastructure; and, the Ministry of Municipal Affairs and Housing into two separate ministries: the Ministry of Municipal Affairs, and the Ministry of Housing.

14 Environmental Commissioner of Ontario The EBR recognizes that the people of Ontario have the right to participate in environmentally significant decision making.

Public Notice and Consultation through Applications for Review and Investigation the Environmental Registry The EBR gives Ontario residents the right to ask a The Environmental Registry is an online database prescribed ministry to review an existing environ- that provides the public with access to informa- mentally significant policy, act, regulation or instru- tion about environmentally significant proposals ment, or to review the need to develop one. These and decisions made by the Ontario government, requests are called “applications for review.” and through which the government invites public comment on those proposals and decisions. The There are currently nine ministries prescribed for Registry is the key EBR tool facilitating public en- purposes of receiving applications for review un- gagement in government environmental decision der the EBR: making. It can be accessed at ebr.gov.on.ca. • Ministry of Agriculture, Food and Rural Affairs Under the EBR, prescribed ministries are re- (OMAFRA) quired to give notice of and consult on certain • Ministry of Energy (ENG) environmentally significant proposals on the • Ministry of the Environment and Climate Environmental Registry. Specifically, ministries Change (MOECC) must give notice and consult on any proposed • Ministry of Government and Consumer Ser- environmentally significant act or policy, as well vices (MGCS) as regulations made under prescribed acts. Cur- • Ministry of Health and Long-Term Care rently, there are 36 acts prescribed (in whole or (MOHLTC) in part) under the EBR. • Ministry of Municipal Affairs and Housing (MMAH) Five ministries (MGCS, MOECC, MMAH, MNRF • Ministry of Natural Resources and Forestry and MNDM) are also prescribed for the purpos- (MNRF) es of giving notice and consulting on certain pro- • Ministry of Northern Development and Mines posed “instruments” (e.g., permits, licences and (MNDM) other approvals) issued by those ministries. Cur- • Ministry of Transportation (MTO) rently, select instruments issued under 19 different acts are subject to the EBR. The responsible

Specific acts must be prescribed under O. Reg. Executive Summary ministries must give notice on the Environmental 73/94 in order for those acts and the regula- Registry of any proposals and decisions related tions made under them to be subject to applica- to those instruments, such as the decision to tions for review. Similarly, instruments must be issue or revoke a prescribed permit. prescribed under O. Reg. 681/94 to be subject to applications for review. See the ECO’s website (eco.on.ca) for an up-to- date list of ministries, laws and instruments pre- The EBR also provides Ontarians with the right to scribed under the EBR. ask a prescribed ministry to investigate alleged contraventions of prescribed acts, regulations Ministries must provide a minimum of 30 days for or instruments; this is called an “application for the public to submit comments on a proposal be- investigation.” Applications for investigation may fore making a final decision. Once a ministry has be filed for alleged contraventions of specific made a decision, it must post a notice on the En- acts, regulations and instruments administered vironmental Registry that describes the outcome by the following six ministries: and explains how public participation affected the decision. The ECO reviews and reports on ministry • The Ministry of Government and Consumer compliance with EBR public notice and consultation Services (MGCS) requirements. For information about prescribed min- • The Ministry of Energy (ENG) istries’ use of the Environmental Registry during this • The Ministry of the Environment and Climate reporting year, see Chapter 1.2 of this report. Change (MOECC)

Environmental Protection Report 2015/2016: Volume 1 15 • The Ministry of Municipal Affairs and Housing (MMAH) The Environmental • The Ministry of Natural Resources and For- Commissioner of Ontario estry (MNRF) The Environmental Commissioner of Ontario • The Ministry of Northern Development and (ECO) is an independent Officer of the Legislative Mines (MNDM) Assembly. Often referred to as Ontario’s “environmental watchdog,” the ECO is responsible Applications are a powerful tool that the public for reviewing and reporting on the government’s can use to influence government decision mak- compliance with the EBR. To ensure that the ing and to ensure environmental laws and poli- EBR is upheld, the ECO monitors how prescribed cies are upheld. Ministries that receive applica- ministries exercise their discretion and carry out tions must follow the procedures set out in the their responsibilities under the EBR. Each year, EBR when considering those applications. The the ECO reports on whether ministries have ECO reviews and reports annually on how min- complied with the procedural requirements of istries handle applications. For this year’s review the EBR, and whether ministry decisions were and a detailed discussion of select applications, consistent with the purposes of the EBR. The see Chapter 2 of this report. ECO also reports on the progress of the Ontar- io government in keeping the EBR up to date by Appeals, Lawsuits and prescribing new ministries, laws and instruments Whistleblower Protection that are environmentally significant. The ECO re- The EBR provides Ontarians with increased ac- ports to the Legislative Assembly of Ontario – not cess to courts and tribunals for the purposes of to the governing political party or to a ministry. environmental protection (referred to collectively as the EBR’s “legal tools”). The EBR provides a The ECO also reviews and reports on a wide va- special right for members of the public to appeal riety of environmental topics, often relating to (i.e., challenge) certain ministry decisions re- recent provincial government decisions or issues garding instruments. Ontario residents may also raised by members of the public. Additionally, take court action to prevent harm to a public re- since 2009 the ECO has been mandated with source and to seek damages for environmental reporting annually on the progress of activities in harm caused by a public nuisance. Finally, the Ontario to reduce emissions of greenhouse gas- EBR provides enhanced protection for employ- es, and to reduce the use or make more efficient ees who suffer reprisals from their employers use of electricity, natural gas, propane, oil and for exercising their EBR rights or for complying transportation fuels. You can find information with or seeking the enforcement of environmen- about the ECO’s work regarding climate change tal rules. and energy conservation on the ECO’s website at eco.on.ca. For information about the public’s use of EBR appeals, lawsuits and whistleblower protection during The ECO also plays an important role in helping this reporting year, see Chapter 3 of this report. the public understand and navigate their environmental rights under the EBR and other Ontario laws. The ECO’s Public Information and Outreach Officer, with assistance from other ECO staff, answers questions from the public and provides public education programs and workshops about the EBR. The ECO’s Resource Centre, with an extensive collection of environmental resource documents, is open to the public. You can read more about the ECO’s work on public education and assistance in Chapter 4.2 of this report.

16 Environmental Commissioner of Ontario The ECO’s Goals This year, the ECO articulated three central goals that guide our work, and shared them with the public by posting them on our website (eco.on.ca):

Goal 1 – The public knows about the tools of the EBR, uses them effectively to the benefit of the environment, and the government respects the purposes and requirements of the EBR.

Goal 2 – The Legislative Assembly and residents of Ontario receive fair, balanced and accurate information about compliance with the EBR, and government progress towards its environmental, climate and energy conservation goals and responsibilities.

Goal 3 – The government creates and upholds legislation and policy that better protects the environment, reduces the use or makes more efficient use of energy, and reduces emissions of greenhouse gases.

In this Report • A detailed reporting of ministries’ handling In the past, the ECO’s annual reports have gen- of applications for review and investigation erally included the ECO’s reporting of ministry submitted by the public (Chapter 2); compliance with the EBR, reviews of significant • A summary of the legal tools that enable On- environmental policy issues and government de- tarians to enforce and protect their environ- cisions, and information about other work com- mental rights, along with a discussion of how pleted by the ECO during that reporting year, all members of the public have used those tools packaged in a single document. The ECO also in our 2015/2016 reporting year (Chapter reports separately on climate change and energy 3); and • A discussion of some other aspects of the conservation. Executive Summary ECO’s work, including: a selection of ECO suc- This year, we have changed both the name and cesses in moving the government forward on presentation format of this annual report. It is important issues in 2015/2016; the ECO’s now called the ECO’s “Environmental Protection education and outreach efforts this year; and Report,” and we are presenting it in two volumes the recipients of the 2016 ECO Recognition under separate cover. Award (Chapter 4).

In Volume 1 of the report, you will find: Volume 2 of our 2015/2016 Environmental Pro- tection Report focuses on three significant envi- • A summary of the ECO’s findings on pre- ronmental issues: scribed ministries’ compliance with the EBR during our 2015/2016 reporting year, • Walking the Fire Line: Managing and Using including discussions of: the release of the Fire in Ontario’s Northern Forests (Chapter 1); ECO’s first EBR report cards on ministry • Invasive Species Management in Ontario: compliance; ministries’ use of the Environ- New Act, Little Action (Chapter 2); and mental Registry; ministry co-operation with • Biodiversity Under Pressure: Wildlife De- the ECO’s requests for information; the gov- clines in Ontario (Chapter 3). ernment’s progress keeping the EBR in sync with environmental laws; and ministries’ con- You can visit the ECO’s website (eco.on.ca/re- sideration of their SEVs when making environ- ports/2016-small-steps-forward) to download each mentally significant decisions (Chapter 1); volume of the ECO’s 2015/2016 Environmental Protection Report.

Environmental Protection Report 2015/2016: Volume 1 17 CHAPTER 1 MINISTRY COMPLIANCE WITH THE EBR

1.0 Introduction 19

1.1 Reviewing Ministry Performance: EBR Report Cards 20

1.2 Use of the Environmental Registry 24

1.2.1 Ministry Use of the Registry in 2015/2016 24

1.2.2 No Transparency for Aggregate Resources Act Instruments 32

1.2.3 Outdated Proposals 33

1.2.4 Environmental Registry: Overhaul Discussions Begin 37

1.3 Ministry Co-operation 38

1.4 Keeping the EBR in Sync with Government Changes and New Laws 39

1.5 Statements of Environmental Values 43

18 Environmental Commissioner of Ontario 1.0 Introduction One of the ECO’s core functions is to monitor and report on how government ministries that have responsibilities under the Environmental Bill of Rights (EBR) carry out their obligations. This chapter reviews several key aspects of ministry compliance with the EBR in 2015/2016, including:

• ministries’ use of the Environmental Registry to give notice of environmentally significant proposals and decisions, including the quality of the notices posted on the Registry and timeliness of posting decision notices; • how ministries co-operated with information requests from the ECO; • ministries’ work to keep the EBR in sync with new laws, new ministries, and the shuffling of government portfolios; and • whether ministries considered their Statements of Environmental Values when making environmentally significant decisions.

Ministries Reaffirm their Commitment to the EBR

In 2014, to mark the 20th anniversary of the EBR becoming law, the Premier of Ontario reaffirmed

the government’s commitment to the EBR. Compliance with the EBR Ministry

In December 2015, shortly after the new Environmental Commissioner of Ontario, Dianne Saxe, took office, the Commissioner wrote to the 14 ministries then prescribed under the EBR and asked them to do the same. The ECO believed that the ministries’ written commitments to the EBR would send an important signal to their staff and the public that the ministries intend to make the EBR – and the important rights that it gives to all Ontarians – matter more than ever before.

The ECO is greatly encouraged that all 14 ministries promptly provided written commitments to uphold the EBR, and acknowledged the EBR’s value in supporting public engagement and government performance on environmental stewardship. The ministries’ EBR commitment letters can be viewed on the ECO’s website (eco.on.ca).

Environmental Protection Report 2015/2016: Volume 1 19 strict legal requirements, but also how well the 1.1 Reviewing ministry’s actions supported public participation Ministry Performance: in government environmental decision making, keeping in mind the purposes of the EBR. EBR Report Cards The report cards show the public whether One of the ECO’s core functions is to review the Ontario government respects their and report annually to the Legislative Assembly environmental rights under the EBR, and show on whether prescribed government ministries ministries where they are succeeding and have complied with the requirements of and where they need to improve. The ECO believes carried out their responsibilities under the these report cards will lead to better access Environmental Bill of Rights, 1993 (EBR). to information about environmentally significant proposals and decisions for the public, and In 2015/2016, the ECO took a new approach to make the government more accountable for reporting on prescribed ministries’ compliance respecting EBR rights. with the EBR by systematically evaluating how well each of the 14 prescribed ministries The ECO presented the report card results executed their EBR responsibilities in five key graphically, using coloured circles of varying categories: sizes. The colour depicts the quality of a ministry’s performance of its EBR duties, while 1. Quality of notices posted on the the size represents the ministry’s EBR workload Environmental Registry; relative to other ministries in the applicable 2. Timeliness of decision notices, and category (for a summary of the results, see avoiding outdated proposals on the Table 1.1.1.). The ECO also provided comments Environmental Registry; in each report card, pointing out ministries’ 3. Handling of applications for review strengths and weaknesses and any special and investigation; considerations or context. Each prescribed 4. Considering Statements of ministry had an opportunity to review their Environmental Values; and report card and provide a written comment that 5. Co-operation with ECO requests. we published in our report.

The results of these evaluations were compiled The ECO tabled the 2015/2016 EBR report into report cards for each ministry. In producing cards on June 21, 2016, in a Special Report the report cards, the ECO evaluated not just to the Legislative Assembly entitled EBR whether each ministry complied with the EBR’s Performance Checkup: Respect for Ontario

20 Environmental Commissioner of Ontario Environmental Rights 2015/2016. You can read The ministries’ formal comments on the report and view the ministry report cards on their individual report cards reflect a the ECO’s website at eco.on.ca. deep commitment to fulfilling their EBR obligations, and promise improvements in EBR Report Card Results for 2015/2016 areas where they fell short in 2015/2016. The ECO found that ministries with a relatively light EBR workload generally executed their few Some ministries have already made considerable obligations well, while ministries with moderate improvements in the months since the EBR and heavy EBR workloads were more likely to report card release, including remedying many have instances of non-compliance or execute of their outdated proposal notices on the their responsibilities poorly. We identified Environmental Registry, improving the quality four key areas of compliance that require of some instrument notices, and providing improvement going forward, all of which are updates on overdue applications for review. also discussed in this report: Going Forward • Content of instrument notices posted on The ECO plans to issue report cards annually, the Environmental Registry (see Chapter and track trends in ministry EBR performance 1.2.1 of this report); year over year. However, in future years the ECO • Prompt posting of decision notices on the plans to release the report cards at the same Registry (see Chapter 1.2.1 of this report); time as our regular report on ministry EBR • Avoiding outdated proposals (see Chapter compliance. 1.2.3 of this report); and • Avoiding overdue applications for review The next EBR report cards will cover the ECO’s (see Chapter 2.1 of this report). 2016/2017 reporting year (ending on March Compliance with the EBR Ministry 31, 2017), and are targeted for release in late Encouragingly, ministry staff were receptive 2017. to the report cards throughout the process, engaging in constructive discussions with ECO staff about specific EBR compliance problems and how to remedy them. One of the ECO’s functions is to provide guidance to ministries on how to comply with EBR requirements. The ECO is committed to maintaining an open and productive dialogue with all prescribed ministries to ensure that the public’s rights under the EBR are upheld.

Environmental Protection Report 2015/2016: Volume 1 21 Table 1.1.1. Summary of Ministry EBR Report Card Results, 2015/2016 (Source: ECO Special Report, EBR Performance Check- up: Respect for Ontario Environmental Rights 2015/2016, tabled before the Legislative Assembly of Ontario on June 21, 2016)

Aboriginal Affairs N/A N/A (MAA)

Agriculture, Food and Rural Affairs (OMAFRA) Economic Development, Employment and N/A N/A Infrastructure (MEDEI)

Education (EDU) N/A N/A N/A

Energy (ENG) N/A

Environment and Climate Change (MOECC)

Government and Consumer N/A Services (MGCS)

Heath and Long-Term N/A N/A Care (MOHLTC)

Labour (MOL) N/A N/A N/A

Municipal Affairs and Housing (MMAH)

Natural Resources and N/A Forestry (MNRF)

22 Environmental Commissioner of Ontario Ministry Compliance with the EBR 23 Co-operation Co-operation With ECO Requests Low Considering Statements of Environmental (SEVs) Values Medium Relative EBR workload: High Environmental Protection Report 2015/2016: Volume 1 Protection ReportEnvironmental 2015/2016: Volume N/A N/A N/A Handling of Applications for Review and Investigation Timeliness of Decision Notices and Avoiding Outdated Proposals Quality of Notices on the Posted Environmental Registry Meets or exceeds expectations Needs improvement Unacceptable LEGEND Quality of performance: N/A (not applicable): The ministry is not prescribed for purpose of theis category of EBR performance, or the ministry did not execute any N/A (not applicable): The ministry is not prescribed for purpose responsibilities under this category in 2015/2016. Prescribed Ministry Tourism, Culture Tourism, and Sport (MTCS) and Mines (MNDM) Transportation (MTO) Transportation Northern Development The Environmental Registry enables the public to participate in government decision making that affects the environment.

Change (MOECC) hosts and maintains the Envi- 1.2 Use of the ronmental Registry. The ECO monitors ministries’ Environmental use of the Registry to ensure that prescribed ministries are fulfilling their responsibilities under Registry the EBR and respecting the public’s participation rights. The Environmental Registry enables the public to participate in government decision making that This year, the ECO took a new approach to report- affects the environment. The Environmental Bill of ing on ministry compliance with the EBR, includ- Rights, 1993 (EBR) requires prescribed ministries ing the quality and timeliness of notices posted to post notices of proposals for environmentally on the Environmental Registry. In spring 2016, significant policies, acts, regulations and instru- the ECO issued EBR Performance Checkup, a spe- ments on the Registry, and to provide a minimum cial report to the legislature that included report of 30 days to comment on such proposals. The cards for each ministry showing how well they ex- public can submit comments online, by mail or by ecuted their EBR responsibilities in 2015/2016. email. Ministries must consider the public’s com- For more information about the EBR report cards ments when making a decision on the proposal, for 2015/2016, see Chapter 1.1 of this report. and must explain how the comments affected the final decision.

The Registry provides other information that 1.2.1 Ministry Use of the may help the public exercise their EBR rights, Registry in 2015/2016 including: In this reporting year, prescribed ministries post- • notice of appeals and leave to appeal applica- ed proposals for 53 policies, 30 regulations, tions related to prescribed instruments; and 3 acts on the Environmental Registry (Table • background information about the EBR; 1.2.1.1). • links to the full text of the EBR and its regulations; • links to prescribed ministries’ Statements of Environmental Values (SEVs); • in some cases, links to the full text of proposed and final policies, acts, regulations and instruments; and • in some cases, links to other information relevant to a proposal.

The Ministry of the Environment and Climate

24 Environmental Commissioner of Ontario Table 1.2.1.1. Number of Proposal Notices for Policies, Acts and Regulations Posted in the ECO’s 2015/2016 Reporting Year (April 1, 2015 – March 31, 2016) by prescribed ministry.

Total Number of Number of Number of Policy Number of Act Ministry Proposals Posted Regulation Proposals Proposals in 2015/2016 Proposals

Aborginal Affairs 0 0 0 0 (MAA) Agriculture, Food and Rural Affairs 2 2 0 0 (OMAFRA) Economic Develop- ment, Employment 2 2 0 0 and Infrastructure (MEDEI)

Education (EDU) 0 0 0 0

Energy (ENG) 3 0 3 0

Environment and Climate Change 28 15 11 2 (MOECC) Government and Consumer Services/ Technical Standards 1 0 1 0 and Safety Authoirty (MGCS/TSSA) Health and Long- 0 0 0 0 Term Care (MOHLTC)

Labour (MOL) 0 0 0 0

Municipal Affairs and 6 1 5 0

Housing (MMAH) Compliance with the EBR Ministry

Natural Resources 41 31 10 0 and Forestry (MNRF) Northern Development and 0 0 0 0 Mines (MNDM) Tourism, Culture and 2 1 0 1 Sport (MTCS)

Transportation (MTO) 1 1 0 0

TOTAL 86 53 30 3

Environmental Protection Report 2015/2016: Volume 1 25 In addition, ministries posted more than 1,318 Under section 58 of the EBR, the ECO is required notices for proposed instruments, such as en- to produce a list of all proposal notices posted vironmental compliance approvals, mining ex- on the Registry between April 1, 2015 and March ploration permits, permits to take water, and 31, 2016 that were not decided by March 31, overall benefit permits under the Endangered 2016. This list of open proposals included 1,528 Species Act, 2007 (Table 1.2.1.2). instruments, 40 policies, 23 regulations and 4 acts, and is available from the ECO by request.

Table 1.2.1.2. Proposal Notices for Instruments Posted in the ECO’s 2015/2016 Reporting Year (April 1, 2015 – March 31, 2016) by Prescribed Ministry.

Approximate Total Number of Instrument Ministry Proposals Posted in 2015/2016

Government and Consumer Services/Technical > 4 Standards and Safety Authority (MGCS/TSSA)

Municipal Affairs and Housing (MMAH) > 26

Northern Development and Mines (MNDM) > 55

Natural Resources and Forestry (MNRF) > 75

Environment and Climate Change (MOECC) > 1,158

TOTAL > 1,318

26 Environmental Commissioner of Ontario Quality of Notices Posted on the Environmental Registry Ministries frequently fail to include key The EBR sets out certain content that Registry notices are required to include. For example, pro- supporting information or links. posal notices must include a brief description of the proposal and information about how the public can participate in decision making on the • develop standard text for each type of instru- proposal, and decision notices must briefly ex- ment that explains what it is and how it could plain the effect, if any, of public participation on affect the environment, and include that text the final decision. Notices should fulfil the specif- in every notice, in addition to specific infor- ic requirements of the EBR as well as the intent mation about the instrument being proposed of the EBR by enabling any member of the public (e.g., basic background information about per- to understand and meaningfully comment on the mits to take water in every proposal notice for proposal (or understand the decision). such a permit); • make it a standard practice to include links to Generally, ministries posted good quality notices all proposed and final instrument documents; for policies, acts and regulations in 2015/2016. • make it a standard practice to include links to The most common problems we observed with any key supporting information that would be notices this year were unclear descriptions and necessary for a member of the public to pro- missing links to key supporting information. vide informed comment on the proposal; and • consider whether the geographic informa- Instrument notices (e.g., for approvals, permits, tion provided in an instrument notice would orders, etc.) represent the majority of notices allow the general public to easily identify the posted on the Registry. In our 2015/2016 re- relevant location (e.g., providing municipal porting year, they were generally of poorer quality addresses in addition to PIN or site and lot than notices for policies, acts or regulations. The numbers). most widespread problem with instrument notices is that ministries frequently fail to include key These simple improvements to instrument notic- supporting information or links to that information es would help the public engage meaningfully in – including copies of the instruments themselves. many site-specific environmental decisions. Substandard instrument notices may prevent the public from participating effectively in decisions Prompt Posting of Decision Notices about approvals for activities that affect the envi- The EBR requires a decision notice to be posted ronment right in their own communities. to the Environmental Registry “as soon as reasonably possible” after the government makes a Some types of instrument notices, such as pro- decision on a proposal for an act, regulation, pol- posals for mining exploration permits, aggregate icy or instrument. The ECO considers two weeks permits (see Chapter 1.2.2), and permits to take to be the maximum time period a ministry should let elapse between making a decision and post- water routinely lack the supporting information Compliance with the EBR Ministry required for members of the public to make in- ing a decision notice. formed comments on the proposal – or, in the case of some decisions, to exercise their right When a ministry fails to post a decision notice to seek leave to appeal. Ministries such as the at all, the ECO considers the corresponding pro- Ministry of Northern Development and Mines posal notice to be “outdated.” The ECO has ad- (MNDM) and the Ministry of Natural Resources dressed the issue of outdated proposal notices and Forestry (MNRF) could also do better by pro- languishing on the Registry for years in previous viding more user-friendly geographic information reports, and we discuss it again in Chapter 1.2.3 to describe the locations to which proposed in- of this report. struments apply.

Ministries could significantly improve their instrument notices with relatively little effort. For example, they could:

Environmental Protection Report 2015/2016: Volume 1 27 Information Notices quired to invite and consider public comments When the government proposes or makes a de- on proposal notices, and they must also post cision that could affect the environment, but the decision notices explaining the effect of those EBR does not require the responsible ministry comments on their final decisions. Information to post a proposal notice on the Environmental notices do not have to include invitations to the Registry, the ministry may choose to inform the public to provide comments, and ministries are public by voluntarily posting an “information no- not required to consider public comments or tice” on the Registry. subsequently post decision notices. Ministries should only post an information notice when the Information notices are also used by ministries EBR does not require a proposal notice. to fulfill requirements of other statutes to provide information to the public. These are some In the 2015/2016 reporting year, six ministries of the most common types of information no- posted 167 information notices on the Environ- tices posted on the Registry. Examples include mental Registry (see Table 1.2.1.3). amendments to Renewable Energy Approvals (required under the Environmental Protection The Ministry of Transportation (MTO) made ex- Act) and Source Protection Plans (required un- cellent use of information notices on the Envi- der the Clean Water Act). ronmental Registry to notify the public and voluntarily solicit input through the government’s Proposal notices and information notices are Regulatory Registry on proposed high-occupan- different from each other. Ministries are re- cy toll lanes, and amendments under the High- way Traffic Act (which is not prescribed under the

Table 1.2.1.3. Number of Information Notices Posted by Ministry, 2015/2016 Reporting Year.

Number of Information Notices Ministry Posted in 2015/2016

Agriculture, Food and Rural Affairs (OMAFRA) 1

Environment and Climate Change (MOECC) 58

Municipal Affairs and Housing (MMAH) 6

Natural Resources and Forestry (MNRF) 97

Northern Development and Mines (MNDM) 1

Transportation (MTO) 4

TOTAL 167

28 Environmental Commissioner of Ontario EBR) to permit taxicabs, airport limos and electric During the 2015/2016 reporting year, the vehicles on high-occupancy vehicle lanes. These MOECC posted three exception notices on the En- proposals had relevance to the environment, but vironmental Registry and the MNRF posted two. the EBR does not require the MTO to post them The ECO believes that all were valid uses of this on the Environmental Registry. By choosing to EBR provision, and the ministries gave acceptable post information notices, the MTO ensured it was reasons for making those decisions without solic- informing as many potential commenters as pos- iting public input. In all cases save one, the min- sible of its proposals. istries explained that any delay posed a serious risk of harm to the environment. The remaining The Ministry of Natural Resources and Forestry case was an exception notice notifying the public (MNRF) also made particularly good use of an in- that land had been added to a protected area. formation notice to voluntarily inform the public The MNRF had already engaged in public consul- that the most recent Independent Forest Audit Re- tation as part of the ministry’s outreach during the ports and Action Plans for Crown forest manage- land use planning processes that considered the ment units were complete and available online. expansion of the protected area with which the Anyone monitoring the registry for information notice was concerned. about forests and forest management would likely be interested in the release of these reports, The MOECC’s three exception notices informed and the MNRF took advantage of the Registry as the public that the ministry had issued director’s a forum to provide the public with easy access to orders to two mining companies and a steel mill. these important documents. Although all three notices were valid uses of the emergency exception provision, the MOECC Exception Notices posted them between one and seven months In certain situations, the EBR relieves prescribed after issuing the orders – even though the EBR ministries of their obligation to post proposal no- states that notice should be given “as soon as tices on the Environmental Registry before mak- reasonably possible after the decision is made.” ing an environmentally significant decision. In In cases where the public is deprived of the right such situations, ministries must instead post an to comment because of the risk of environmental Number of Information Notices “exception notice” to inform the public of the deci- harm, ministries should ensure the public is at Ministry Posted in 2015/2016 sion and explain why it did not first post a propos- least afforded the right to be informed of the deci- al notice. There are two main circumstances un- sion as soon as possible. Agriculture, Food and Rural Affairs (OMAFRA) 1 der which ministries can post an exception notice instead of a proposal notice. First, ministries may Failures to Comply with EBR Public Environment and Climate Change (MOECC) 58 post an exception notice under section 29 of the Consultation Requirements EBR when a decision has to be made quickly in Municipal Affairs and Housing (MMAH) 6 The ECO has a statutory duty to report to the On- order to deal with an emergency, and the delay in tario Legislature on how well ministries are fulfill- Compliance with the EBR Ministry waiting for public comment would result in danger Natural Resources and Forestry (MNRF) 97 ing their obligations under the EBR to notify and to public health or safety, harm or serious risk to consult the public on environmentally significant Northern Development and Mines (MNDM) 1 the environment, or injury or damage to property. proposals through the Environmental Registry. Second, under section 30 of the EBR, ministries These obligations seem simple enough, yet, every Transportation (MTO) 4 can notify the public about an environmentally sig- year, the ECO observes instances where minis- nificant proposal using an exception notice when tries fail to post proposal notices for environmen- the proposal will be or has already been consid- TOTAL 167 tally significant policies, regulations or laws (see ered in another public participation process that Table 1.2.1.4). is substantially equivalent to the process required under the EBR. Sometimes, ministries improperly post information notices for initiatives that should be posted as regular proposal notices. Such information

Environmental Protection Report 2015/2016: Volume 1 29 notices typically do not include the right to com- No Chance to Comment: Energy Statute ment. Even when a ministry posts an information Law Amendment Act, 2016 notice on the Registry that does invite public com- The Ministry of Energy introduced Bill 135, the ment, the public is not assured that the ministry Energy Statute Law Amendment Act, 2016 in Oc- will post a decision notice that clearly indicates tober 2015. The bill was passed in June 2016, what was finally decided and how the public’s and made changes to the Electricity Act, 1998, the comments were considered. Posting an informa- Ontario Energy Board Act, 1998, and the Green En- tion notice to the Registry when the EBR requires ergy Act, 2009. It included provisions that would a proposal notice disregards the instructions of give Ontario’s Long-Term Energy Plan a substan- the legislature and misleads the public. tive legal framework, enable the establishment of “Large Building Energy and Water Reporting and Several examples of ministries’ failures to prop- Benchmarking,” and prescribe water efficiency erly post proposal notices on the Environmental standards for appliances or products that con- Registry are highlighted below. sume energy. However, the ministry did not post a proposal notice on the Environmental Registry informing the public and inviting comment on this environmentally significant act as it is required to.

Table 1.2.1.4. Ministry Non-compliance with the EBR by Failing to Post Proposal Notices on the Environmental Registry, 2015/2016 Reporting Year.

Ministry of Agriculture, Food and Rural Affairs (OMAFRA) • Draft Guidelines on Permitted uses in Ontario’s Prime Agricultural Areas Ministry of Energy (ENG) • Bill 135, Energy Statute Law Amendment Act, 2016 Ministry of the Environment and Climate Change (MOECC) • Proposal to classify Avadex Mintill Herbicide (active ingredient: triallate) • Proposal to amend the Class Environmental Assessment for Resource Stewardship and Facility Development • Proposal to amend the Class Environmental Assessment for Provincial Parks and Conservation Reserves • Proposal to amend the Class Environmental Assessment for Water Power Projects Ministry of Health and Long-term Care (MOHLTC) • Beach Management Guidance Document • Environmental Health Standards Drinking Water and Beach Management Protocols Ministry of Natural Resources and Forestry (MNRF) • MNRF Horizons 2020 • Provincial Wildlife Population Monitoring Program Plan, Version 3.0 • Managing Ontario’s Wildlife at Ecologically Relevant Scales: A Framework for Action Ministry of Northern Development and Mines (MNDM) • Northern Industrial Electricity Rate Program

30 Environmental Commissioner of Ontario When urged by the ECO to post an act proposal to uphold the public’s EBR right to have their com- notice for Bill 135 on the Environmental Registry, ments considered and be notified of their effects. the Ministry of Energy stated it would solicit public comments through the Registry when it drafts The ECO has written to the MNRF twice before regulations that would implement the initiatives about their obligation to post the plan as a propos- mentioned above. al notice: in 2010 after the ministry posted version 1.0 of the plan to its website without undertaking Although the ECO agrees that the ministry must public consultation, and again in 2012 when the post forthcoming regulation proposals on the Reg- ministry incorrectly posted version 2.0 of the plan istry for public comment, these future consulta- in an information notice (for details, see Part 2.3 tions do not fulfill the EBR requirement to notify of the ECO’s 2011/2012 Annual Report). And yet, the public about the proposed act and provide an in 2015 the MNRF again failed to post a policy opportunity to comment on it. Under the EBR, the proposal notice public has a right to know about and comment on on the Environ- new acts with environmentally significant implica- mental Registry The Provincial Wildlife Population Monitoring tions, and the Ministry of Energy’s failure to post a for the Provincial Program Plan has been in place for over proposal notice denies this right. Wildlife Popula- tion Monitoring 20 years, and the public has never had No Chance to Comment: Provincial Program Plan a chance to exercise their EBR right to Wildlife Population Monitoring Plan – – Version 3.0. It comment on the plan... Version 3.0 instead improp- The MNRF is responsible for monitoring wildlife erly posted it as populations in the area where forest management an information notice, denying the public’s right to operations take place on Crown land in order to col- have their comments considered and to learn their lect long-term trend data. This is a requirement of a effects. Ministry of Agriculture, Food and Rural Affairs (OMAFRA) Declaration Order regarding forest management on Crown land under the Environmental Assessment When the ECO requested an explanation from the Draft Guidelines on Permitted uses in Ontario’s Prime Agricultural Areas • Act. It is crucial for MNRF to understand how forest ministry for this decision, the MNRF stated that the Ministry of Energy (ENG) management operations affect wildlife populations plan in and of itself could not have a significant in order to avoid and/or mitigate negative effects. effect on the environment. It is difficult to under- • Bill 135, Energy Statute Law Amendment Act, 2016 stand how the ministry could come to this conclu- Ministry of the Environment and Climate Change (MOECC) The Declaration Order requires the MNRF to imple- sion when, according to its own information notice, ment a wildlife population monitoring program, pro- the purpose of the plan is to “describe the Wildlife Proposal to classify Avadex Mintill Herbicide (active ingredient: triallate) • duce a plan for the program, and update the plan pe- Population Monitoring Program and outline priori- Proposal to amend the Class Environmental Assessment for Resource Stewardship • riodically. The ministry produced the first version of ties, representative species to be monitored and and Facility Development Compliance with the EBR Ministry its Provincial Wildlife Population Monitoring Program proposed activities and schedules.” Proposal to amend the Class Environmental Assessment for Provincial Parks and • Plan in 2010, amended it in 2012 to produce ver- Conservation Reserves sion 2.0, and amended it again in 2015 to produce The Provincial Wildlife Population Monitoring Pro- Proposal to amend the Class Environmental Assessment for Water Power Projects • version 3.0. gram Plan has been in place for over 20 years, Ministry of Health and Long-term Care (MOHLTC) and the public has never had a chance to exercise The ECO believes that the goals, strategies, proce- their EBR right to comment on the plan, have those • Beach Management Guidance Document dures, and methods for collecting information on comments considered, and know their effects. If • Environmental Health Standards Drinking Water and Beach Management Protocols wildlife in Ontario contained in the Provincial Wild- the MNRF persists in denying the public’s right to Ministry of Natural Resources and Forestry (MNRF) life Population Monitoring Program Plan have a di- participate in decision making about the environ- rect effect on what information is collected and the mentally significant issue of wildlife management • MNRF Horizons 2020 quality of that information, which in turn affects the on Crown land, the ECO must conclude that the • Provincial Wildlife Population Monitoring Program Plan, Version 3.0 wildlife management guidance it informs. The plan ministry is deliberately circumventing the public • Managing Ontario’s Wildlife at Ecologically Relevant Scales: A Framework for Action and any amendments are therefore clearly environ- consultation requirements of the EBR. Ministry of Northern Development and Mines (MNDM) mentally significant, and should be posted on the Environmental Registry as a policy proposal notice • Northern Industrial Electricity Rate Program

Environmental Protection Report 2015/2016: Volume 1 31 1.2.2 No Transparency for Unfortunately, notices for aggregate instruments are chronically inadequate, and a lack Aggregate Resources Act of publicly available information on aggre- Instruments gate approvals may hinder the public from fully exercising their rights under the EBR. There are thousands of pits and quarries in Ontario that produce sand, gravel, and crushed Proposal notices for aggregate instruments rock for road building and other construction generally contain very basic information, such projects. Most pits and quarries require an ap- as the type of approval or amendment pro- proval from the Ministry of Natural Resources posed, the size of an operation, and a general and Forestry (MNRF) under the Aggregate Re- location. Most proposal notices do not provide sources Act (ARA) in order to conduct their oper- enough substantive information to allow mem- ations. A number of these approvals are “clas- bers of the public to provide a reasonably in- sified instruments” under the Environmental formed comment. For example, the MNRF often does not provide the location of aggregate operations in a way that would be readily useful to the average person – the ministry usually in- Notices for aggregate instruments cludes lot and concession numbers rather than are chronically inadequate. a municipal address or a nearby intersection. The ministry also fails to include descriptions of the potential environmental effects of issu- Bill of Rights, 1993 (EBR), including most new ing the instruments. Critically, these notices aggregate licences, some permits, and certain never include links to site plan information or amendments to licences, permits and site plans. background information such as technical reports (e.g., hydrogeological studies, etc.). In- This means that the MNRF must post instru- stead, members of the public must go to an ment proposal notices for these approvals on MNRF district office in person to obtain details. the Environmental Registry, and solicit and consider public comments when making a decision Aggregate instrument decision notices are also on whether to issue the approval. Once the min- generally inadequate. The MNRF does not in- istry makes its final decision, it must post a clude links to the final instrument or site plan decision notice to explain the outcome of the in the notice, leaving the public in the dark as to decision and how public comments affected the the final conditions of the approval. This omis- decision. In some cases, the EBR also provides sion is particularly troublesome, as anyone the public with the right to seek leave to appeal wishing to seek leave to appeal a decision on (i.e., challenge) a decision on an instrument, but such an instrument must provide copies of the only after the decision has been posted. Mem- relevant approval documents (e.g., licence, site bers of the public can also submit applications plan, technical reports, etc.) with their applica- for review and applications for investigation tion for leave to appeal. Also, the ministry gener- pertaining to prescribed aggregate approvals. ally provides only a cursory explanation of how

32 Environmental Commissioner of Ontario public comments were considered in making the decision, and rarely addresses comments received through the ARA notification process.

The EBR generally requires a minimum 30-day public notice and comment period for aggregate instruments, but allows for longer consultation periods for certain instruments, including new aggregate licences. There is also a 45-day notification period for new aggregate licences under the ARA approval process, which is separate from the notification and comment period under the EBR. Although the EBR and ARA notification periods are usually aligned, on occasion the EBR period is short- 1.2.3 Outdated er than or not aligned with the ARA period. Proposals Aggregate operations in Ontario have a significant impact on the land and generate great The public consultation process under public interest. Fostering informed public the Environmental Bill of Rights, 1993 engagement in the aggregate approval pro- (EBR) starts with a proposal notice – but cess is important to resolve local concerns it shouldn’t end there. After a proposal no- and improve environmental outcomes. The tice has been posted on the Environmental MNRF must fix these long-standing deficien- Registry and the public has had an oppor- cies in Environmental Registry notices for tunity to submit comments, the next step ARA instruments in order to ensure the pub- is for the responsible ministry to consider those comments and decide whether or lic’s right to be notified and comment on en- Compliance with the EBR Ministry vironmentally significant decisions is upheld. not to go ahead with the proposal. Once the ministry has made a decision, it must give notice on the Registry “as soon as The ECO recommends that the MNRF fix reasonably possible.” A decision notice in- the long-standing deficiencies in Environ- forms the public of the outcome of the pro- mental Registry notices for Aggregate posal, and explains how the public’s com- Resources Act instruments to ensure the ments affected the ministry’s decision. public’s right to be notified and comment.

Environmental Protection Report 2015/2016: Volume 1 33 In practice, prescribed ministries have often 2014, remained on the Registry, many of them left proposal notices on the Registry for many dating back several years. The ECO urged months or even years without posting a cor- ministries to address their outdated proposal responding decision notice. In many cases, a notices by posting decision notices promptly. decision was made but the responsible ministry neglected to post a notice of the decision This year, the ECO monitored the Registry to on the Registry. Other times, the responsible find out whether prescribed ministries were in ministry has put the proposal on hold or aban- fact making improvements. In late fall 2015, doned it in favour of another initiative, leaving the Environmental Commissioner also provid- the proposal notice on the Registry indefinite- ed several deputy ministers with lists of their ly without explaining what has transpired to ministries’ outdated notices, and pressed the public; the same result may occur when them to take action to remedy those notic- an instrument proponent has withdrawn or es without further delay. An outdated notice abandoned an approval application after it may be remedied by posting a decision no- has been posted as a proposal on the Reg- tice or, if the proposal is on hold or remains istry. In some cases, proposals are under under consideration, updating the proposal consideration by the responsible ministry for notice to explain the status of the proposal. such an unusually long time that they may appear to have been abandoned or forgotten. Some ministries made significant efforts during our 2015/2016 reporting year to address this problem (see Table 1.2.3.1). The The public is left in the dark about Ministry of Agriculture, Food and Rural Affairs the outcome of the proposal. and the Ministry of Tourism, Culture and Sport, which both had relatively few outdated notices to start with, remedied all of them; all of those ministries’ notices on the Registry are now current. Other ministries made good headway: When proposal notices are left on the Regis- the Ministry of Northern Development and try without a corresponding decision – wheth- Mines (MNDM) remedied all of its 7 outdated er they are forgotten, withdrawn, abandoned policy, act and regulation notices and 17 (over or simply languishing while awaiting a de- 38 per cent) of its outdated instrument notic- cision – the public is left in the dark about es; and the Ministry of Municipal Affairs and the outcome of the proposal. If a decision Housing remedied one of its 2 outdated poli- has in fact been made, the public is denied cy, act and regulation notices and 66 (over 87 its EBR right to know about the decision, per cent) of its outdated instrument notices. or how public comments affected the out- The Ministry of the Environment and Cli- come. In the case of decisions about some mate Change (MOECC) and the Ministry of types of approvals, licences and permits, Natural Resources and Forestry (MNRF) are the public may be denied the EBR right to responsible for the majority of outdated no- seek leave to appeal the decision if a notices on the Registry. Both worked hard tice is not posted promptly on the Registry. throughout the year to remedy their outdated notices: the MOECC remedied a total of Remedying Outdated Proposal Notices: 827 notices (about 59 per cent of its out- Progress in 2015/2016 dated notices), while the MNRF remedied The ECO highlighted the problem of outdated 218 notices (over 70 per cent of its outdat- proposal notices – not for the first time – in our ed notices). However, both ministries still 2014/2015 Annual Report (Part 1.2.2). We had a long way to go as of April 1, 2016. reported that over 200 proposal notices for policies, acts and regulations and over 1,700 The Technical Standards and Safety Authority proposal notices for instruments on the Reg- (TSSA) under the Ministry of Government and istry that were posted on or before January 1, Consumer Services (MGCS), responsible for posting notices under the Technical Standards

34 Environmental Commissioner of Ontario and Safety Act, 2000, did not remedy any of its The ECO recommends that prescribed 12 outdated instrument notices, and only rem- ministries remedy all of their outdated edied two policy, act and regulation notices. notices that remain on the Environmental Registry without a decision. The ECO recommends that all prescribed ministries establish processes to ensure that decision notices are posted as soon as reasonably possible after decisions are made.

Table 1.2.3.1. Work by Ministries during 2015/2016 to Remedy Outdated Proposal Notices Reported in the ECO’s 2014/2015 Annual Report.

Outdated Policy, Act and Outdated Instrument Total Outdated Proposal Regulation Proposal Proposal Notices Remedied Notices Remedied Notices Remedied Ministry Percentage Percentage Percentage Number Number Number Remedied Remedied Remedied Remedied Remedied Remedied (%) (%) (%)

Agriculture, Food and Rural Affairs 4 100 N/A N/A 4 100 (OMAFRA)

Energy (ENG) 5 71 N/A N/A 5 71

Environment and Climate Change 8 9 819 89 827 59 (MOECC)

Government and Consumer Services/Technical 2 50 0 0 2 13 Standards and Safety Authority (MGCS/TSSA)

Municipal Affairs and Housing 1 50 65 88 66 87 (MMAH)

Natural Resources Compliance with the EBR Ministry and Forestry 75 94 143 64 218 72 (MNRF)

Northern Development and 7 100 17 39 24 47 Mines (MNDM)

Tourism, Culture 2 100 N/A N/A 2 100 and Sport (MTCS)

Transportation 6 60 N/A N/A 6 60 (MTO)

Total 110 52 1,044 63 1,154 62

Environmental Protection Report 2015/2016: Volume 1 35 Outdated Proposal Notices as of April 1, during the 2015/2016 reporting year. The ECO 2016: More Work to Do considers any notice that had been on the Reg- Although ministries are making progress, istry for two years or more without a correspond- outdated proposal notices on the Envi- ing decision notice or update to be outdated. ronmental Registry remained a problem at the end of the ECO’s 2015/2016 re- As of April 1, 2016, there were 839 out- porting year, especially for the MOECC. dated proposal notices on the Environ- mental Registry: 101 outdated policy, act In addition to outdated notices at the end of and regulation notices, and 738 outdat- 2014/2015 that were not remedied during ed instrument notices (see Table 1.2.2.2). 2015/2016, other notices became outdated

Table 1.2.3.2. Outdated Proposals on the Environmental Registry as of April 1, 2016 (i.e., proposal notices that were posted before April 1, 2014 and for which no decision notice or update has been posted).

Number of Outdated Number of Outdated Total Number of Outdated Proposals for Policies, Acts Ministry Proposals for Instruments Proposals as of or Regulations as of as of April 1, 2016 April 1, 2016 April 1, 2016

Energy (ENG) 2 N/A 2

Environment and Climate 87 599 686 Change (MOECC)

Government and Consumer 2 12 14 Services (MGCS)

Municipal Affairs and 1 6 7 Housing (MMAH)

Natural Resources and 5 88 93 Forestry (MNRF)

Northern Development and 0 33 33 Mines (MNDM)

Transportation (MTO) 4 N/A 4

TOTAL 101 738 839

36 Environmental Commissioner of Ontario Fortunately, many ministries continue to demon- 1.2.4 Environmental strate their commitment to address outdated proposals and bring the Environmental Registry up Registry: Overhaul to date. For example, in the months following the Discussions Begin end of the ECO’s 2015/2016 reporting year, the Ministry of Energy remedied both of its outdated For engaged Ontarians wanting their say on proposal notices, the MOECC posted decision no- environmental issues, few tools are as im- tices for dozens of outdated proposals for permits portant as the Environmental Registry. This to take water, and the MNDM posted decision no- website allows the public to monitor and com- tices or updates for all 33 of its instrument pro- ment on a very wide range of environmental posals that were outdated as of April 1, 2016. In matters within the jurisdiction of the provin- the summer of 2016, the MGCS-TSSA advised it cial government. Each year, Ontario minis- was working on remedying its outdated notices. tries use the Environmental Registry to invite The ECO again urges ministries to remedy all public comment on thousands of proposals of their outdated notices, ensure that decision as diverse as regional land use plans, prov- notices are posted as soon as reasonably pos- ince-wide climate change initiatives, site-specif- sible after decisions are made, and update all ic water taking permits, plans for modernizing proposal notices that remain on the Registry intercity bussing and rules for fish farming. without a decision for more than two years. But the Registry is show- The ECO is hopeful that a planned overhaul of the ing its age. Its confusing Environmental Registry (see Chapter 1.2.4 of this search functions and dat- The Registry is showing its age. report) will make it easier for ministries to keep ed layout are an ongoing their Registry notices current in the future, for the source of frustration to public to have access to more reliable and up-to- Registry users. The ECO has often stressed this date information on specific proposals, and for the weakness, most recently in our 2014/2015 ECO to monitor the Registry for outdated notices. Annual Report (Part 1.2.1). The Ministry of the Environment and Climate Change (MOECC), which is responsible for operating the Reg- istry, has agreed that it needs an overhaul. Ministry Compliance with the EBR Ministry

Environmental Protection Report 2015/2016: Volume 1 37 To help the ministry get started on the Registry upgrade, the ECO solicited input from selected 1.3 Ministry Registry users in spring 2016, and compiled Co-operation the advice received, along with insights from ECO staff. The need for an email alert ser- Ministry co-operation is vitally important vice, improved geographic search functions, to the ECO’s ability to effectively carry out and better background information for per- our mandate; without it, we could not re- mits were part of the wish list that our office view environmentally significant decisions in sent to the MOECC. A copy of the ECO’s let- an efficient and timely manner. Each of the ter can be viewed on our website (eco.on.ca). prescribed ministries, as well as the Techni- cal Standards and Safety Authority (TSSA), The ministry itself began a public dialogue designate at least one staff person as their on Registry improvements through a full-day “EBR co-ordinator”; this person is responsi- “Ideation Session” held at Ryerson Univer- ble for facilitating the implementation of the sity in late June 2016. Attendees included Environmental Bill of Rights, 1993 (EBR) with- numerous university students, a small num- in their ministry. Most interactions between ber of representatives from non-government the ECO and the ministries occur via these organizations, staff from some prescribed co-ordinators; however, on occasion we also ministries, and the ECO. Discussion ranged contact ministry staff responsible for program broadly around the theme of government con- delivery directly, with specific, detailed infor- sultation tools, but attendees were encour- mation requests. The Commissioner herself aged to “think outside the box” to come up also routinely engages with deputy ministers. with creative ideas for a new Registry. Howev- These interactions include requests for: brief- er, few members of the public with first-hand ings on defined issues; data; internal docu- experience searching the Registry took part ments; and explanations of ministry positions in the day’s discussion. The needs of exist- or interpretations. Under the EBR, the ECO ing Registry users will be an essential part is required to report on whether prescribed of the context for designing a new Registry. ministries have co-operated with these requests for information by the Commissioner. The ECO will stay engaged in the ongoing discussions on upgrading the Registry. A key During our 2015/2016 reporting year, ministry priority remains the need to upgrade the core staff were co-operative, providing the ECO with software platform of the Registry to make it clear responses to our enquiries and helpful more accessible to modern web users and updates, as well as meeting with ECO staff to optimize its usefulness to the broader public. discuss matters of interest. Seven ministries – the Ministry of Agriculture, Food and Rural The ECO recommends that the MOECC Affairs (OMAFRA), the Ministry of Economic give the needs of existing Environmental Development, Employment and Infrastructure Registry users strong consideration in the (MEDEI), the Ministry of Energy, the Ministry design of a new Registry. of Municipal Affairs and Housing (MMAH), the Ministry of Natural Resources and Forestry

38 Environmental Commissioner of Ontario (MNRF), the Ministry of the Environment and Climate Change (MOECC), and the Ministry 1.4 Keeping the EBR of Transportation (MTO) – were particularly in Sync with Government co-operative, responding to multiple requests from the ECO. In some cases those minis- Changes and New tries met tight deadlines to assist our office. Laws For example, staff from several ministries provided briefings to the ECO on a variety of The Environmental Bill of Rights, 1993 (EBR) issues. To name a few: the MNRF briefed the needs to be kept up to date with new laws, ECO on the Wildland Fire Management Strat- new ministries, and the shuffling of govern- egy, the Provincial Fish Strategy for Ontario, ment portfolios. The ECO encourages the Min- Ontario’s White-nose Syndrome Response istry of the Environment and Climate Change Plan, the ministry’s moose program, the Lake (MOECC) to work with other ministries to reg- Nipissing Fisheries Management Plan and ularly update the EBR regulations (O. Reg. the Far North Land Use Strategy; the MOECC 73/94 and O. Reg. 681/94) to ensure Ontario provided briefings on source water protection residents can continue to participate in all envi- and the new greenhouse gas cap and trade ronmentally significant government decisions. program; the OMAFRA gave briefings on the ministry’s new soil health initiative, phos- When ministries are prescribed, they must phorus runoff from farmland, and the Drain- comply with the EBR’s public notice and con- age Act; and the MMAH briefed the ECO on sultation requirements for environmentally the co-ordinated land use planning review. significant policies, acts and regulations. Pro- posals for environmentally significant regula- Several ministries were also helpful to ECO tions under prescribed acts must be posted staff during the preparation of our annu- to the Environmental Registry. Ministries also al Energy Conservation Report. The ENG can be prescribed for applications for review. provided briefings and other information, often with tight turn-around times. MEDEI Prescribed ministries are also required staff assisted the ECO’s energy conserva- to develop a Statement of Environmental tion staff by explaining the rules for fund- Values and consider those values when ing infrastructure retrofits, the Ministry of making any environmentally significant de- Education provided data about energy use cisions. And once environmentally signifi- in Ontario’s public schools, the MMAH pro- cant acts are prescribed, they can be made vided input about land use planning for the subject to applications for investigation. transportation chapter of the report, and the MTO supplied information and reviewed Classifying instruments (e.g., permits, draft material dealing with transit spending. licences, etc.) under the EBR is important Compliance with the EBR Ministry because it requires ministries to give notice on The ECO appreciates the ministry represen- the Environmental Registry of any proposals tatives who provided our office with timely in- and decisions related to those instruments, formation and explanations. The quality and and to consider comments from the public completeness of our work is better as a result during decision-making processes. Generally, of their efforts. classified instruments are also subject to applications for review and investigation. In many cases, classifying instruments provides members of the public with the right to seek leave to appeal decisions on those instruments.

Environmental Protection Report 2015/2016: Volume 1 39 Newly Prescribed Ministries and Acts in the near future to ensure the public knows In May 2016, the government prescribed the Trea- about and can comment on proposals for licenc- sury Board Secretariat, the Places to Grow Act, es, orders and permits issued under the act. 2005 and the Invasive Species Act, 2015 under the EBR, significantly expanding its reach and the Ministry Name Changes application of Ontarians’ environmental rights. The government re-organized and changed the names of several ministries in June 2016, The Treasury Board Secretariat, which houses including some prescribed under the EBR: the Ontario Public Service Green Office, will now have to post environmentally significant propos- • the Ministry of Infrastructure is again a als on the Environmental Registry, consider any stand-alone ministry, separate from the public comments it receives before making a Ministry of Economic Development and final decision, and draft a Statement of Environ- Growth; mental Values that it must consider when mak- • the Ministry of Municipal Affairs and Hous- ing decisions that could affect the environment. ing was split into two ministries – the Min- istry of Municipal Affairs and the Ministry of Now that the Places to Grow Act, 2005 and the Housing; and Invasive Species Act, 2015 are prescribed un- • the Ministry of Aboriginal Affairs was re- der the EBR, any proposal to make or change named the Ministry of Indigenous Relations a regulation under either of these acts must be and Reconciliation. posted on the Environmental Registry for public comment. Both acts are also now subject to ap- The MOECC should promptly amend O. Reg. plications for review, and the Invasive Species Act, 73/94 to reflect the ministry name changes 2015 is subject to applications for investigation. and their status as prescribed ministries under the EBR. The ECO asked the MOECC to prescribe the Treasury Board Secretariat under the EBR in our Ministries, Agencies, Acts and 2014/2015 Annual Report (the Secretariat was Instruments still not Prescribed previously subject to EBR requirements as part of the Ministry of Government and Consumer under the EBR The ECO monitors the progress the govern- Services), and commends the ministry for acting ment makes (or fails to make) to fully pre- swiftly to uphold Ontarians’ environmental rights. scribe environmentally significant ministries, agencies and legislation under the EBR. De- The ECO has called on the MOECC to prescribe spite the significant progress made this year, the Places to Grow Act, 2005 for a number of the ECO continues to urge the government years, and is pleased that the public will be in- to address the remaining gaps in EBR cover- formed about, and can properly comment on, age of environmentally significant ministries, proposed regulations under this environmen- acts, and instruments (see Table 1.4.1). tally significant law. The act sets out goals for decision making about growth policies for many This year, the ECO requested that the Ministry municipalities. The ECO also commends the of Education, which is prescribed for purposes MOECC and the Ministry of Natural Resources of public participation in environmental deci- and Forestry for acting quickly to prescribe the sion-making, also be prescribed for applications Invasive Species Act, 2015, and encourages the for review. To date, this has not transpired. ministry to also prescribe the act’s instruments The ECO recommends that the Ministry of Education be prescribed under the EBR for the purposes of applications for review.

40 Environmental Commissioner of Ontario Table 1.4.1. Environmentally Significant Ministries, Agencies, Acts and Instruments not Prescribed Under the Environmental Bill of Rights, 1993 at the End of the 2015/2016 Reporting Year.

Ministries and Agencies Not Yet Prescribed

Name Environmental Significance

Prepares Ontario budget, provides fiscal and economic Ministry of Finance policy advice to Cabinet and the Premier – affects all ministries and government programs.

Funds research and partners with universities, colleges, Ministry of Research, Innovation and Science hospitals, entrepreneurs and business leaders – influenc- es prioritization and funding of research projects.

Promotes natural heritage conservation through land acquisition, conservation easements, land donations and Ontario Heritage Trust public awareness; holds more than 160 natural properties. Ministry Compliance with the EBR Ministry

Environmental Protection Report 2015/2016: Volume 1 41 Acts Not Yet Prescribed

Name Environmental Significance

Establishes the Building Code in regulation – the Building Building Code Act, 1992 in its entirety (MMAH) Code sets out the requirements and minimum standards for how structures must be built in Ontario. Directs the creation, maintenance and repair of municipal agricultural drains, including open ditches and tile Drainage Act (OMAFRA) drains, which are used to remove water from agricultural land – drainage works are allowed to occur in wetlands in Ontario, including provincially significant wetlands. Purpose includes ensuring sustainability and reliability of electricity supply, encouraging electricity conservation Electricity Act, 1998 (ENG) and the efficient use of electricity, and promoting the use of cleaner energy sources and technologies. Sets out forest fire prevention measures; responsibilities Forest Fires Prevention Act (MNRF) for fire extinguishment, reporting and evacuation; and prohibitions on actions that could cause forest fires. Establishes a list of noxious weeds (plants that must be Weed Control Act (OMAFRA) destroyed by landowners) and prescribes procedures for destroying them.

Instruments Not Yet Prescribed

Name Environmental Significance

Licences are required for off-farm disposal of deadstock, Instruments issued under the Food Safety and Quality including licences to operate a transfer station, as well Act, 2001 (OMAFRA) as salvaging, composting, and rendering facilities.

Water Management Plans under the Lakes and Rivers Enable the construction of dams in lakes and rivers, Improvement Act (MNRF) subject to ministerial approval.

Nutrient Management Strategies are required for certain building projects related to housing livestock or storing manure; Nutrient Management Plans are sometimes Nutrient Management Instruments under the Nutrient required before nutrients can be applied to lands; and Management Act, 2002 (OMAFRA) Non-Agricultural Source Material Plans are sometimes required before nutrients from off-farm sources such as sewage biosolids or food processing washwater can be applied to lands.

Land use permits, licences of occupation and leases for Instruments issued under the Provincial Parks and land in provincial parks and conservation reserves can Conservation Reserves Act, 2006 (MNRF) be granted for private non-commercial purposes.

42 Environmental Commissioner of Ontario Ministry of the Environment and Climate Change 1.5 Statements of (MOECC) and the Ministry of Natural Resources Environmental Values and Forestry (MNRF) to develop a new process, or improve existing processes, for document- Statements of Environmental Values (SEVs) ing SEV consideration when making instru- set out how the purposes of the Environmen- ment decisions that affect the environment. tal Bill of Rights, 1993 (EBR) are to be applied whenever a prescribed ministry makes an en- Once again, the MOECC and the MNRF failed to vironmentally significant decision. In addition, provide copies of a number of SEV consideration an SEV must explain how the purposes of the documents requested for instruments during EBR will be integrated with other factors, in- the 2015/2016 reporting year. The MNRF con- cluding social, economic and scientific consid- tinues to assert that SEV documentation and/ erations, that inform ministry decision making. or consideration is not required for certain instruments. Ministries were generally co-opera- An SEV should be both a statement of minis- tive in providing SEV consideration documents try-specific environmental principles, as well as for policies, acts and regulations – with a small a guidance document that sets out how these number of exceptions. For example, the Minis- environmental principles will be integrated into try of Tourism, Culture and Sport did not provide ministry decision making in a meaningful way. any SEV documentation for its recent policy decision on strengthening Ontario’s trails strate- The EBR requires ministries to finalize their gy, which, according to the ministry, received SEVs within nine months of becoming pre- 80 comments from members of the public. scribed under the act. After becoming prescribed on January 1, 2015, the Ministry of Aboriginal Affairs and the Ministry of Eco- The failure to provide SEV documentation nomic Development, Employment and Infra- is unacceptable. structure both finalized their new SEVs in late 2015 (for background information, see Part 1.5 of the ECO’s 2014/2015 Annual Report). These new SEVs, along with the SEVs of all The failure to provide SEV documentation is prescribed ministries, are available on the En- unacceptable – without these documents, vironmental Registry website (ontario.ca/ebr). the ECO is unable to assess ministry compliance with SEV consideration requirements. This lack of documentation is particularly Documentation of SEV Consideration troubling when the decisions in question are The ECO is required to report annually on min- of great public interest and/or have the po- istries’ compliance with the requirement to con- tential for substantial environmental impacts. sider their SEVs. In order for the ECO to assess compliance, a prescribed ministry must be able Compliance with the EBR Ministry This year the ECO also assessed the timeli- to demonstrate, through documentation, that it ness of ministry responses to requests for considered its SEV when making environmen- SEV consideration documents. The ECO ex- tally significant decisions. The ECO typically re- pects ministries to provide SEV consideration quests “SEV consideration documents” for de- documents within four weeks of receiving a cisions on acts, regulations and policies, and for request from our office. The ECO considers select instrument decisions (see Table 1.5.1). this to be a reasonable period of time, given that our request is made after the ministry In recent years, the ECO has repeatedly ob- decision is completed, and SEV consideration served that some ministries are inadequately should have occurred during the decision documenting their SEV consideration when making process. Ministry compliance with making decisions related to certain prescribed the ECO’s timelines was, however, highly vari- instruments (e.g., approvals, permits, licences, able during the 2015/2016 reporting year. etc.). As a result, the ECO has been urging the

Environmental Protection Report 2015/2016: Volume 1 43 Table 1.5.1. Summary of Requests for SEV Consideration Documents for Decisions Between April 1, 2015 and March 31, 2016 (as of June 1, 2016). [Note: the ECO did not request any SEV consideration documents in the 2015/2016 reporting year from the following ministries: Aboriginal Affairs; Economic Development, Employment and Infrastructure; Education; Energy; Health and Long Term Care; and Labour].

Number of SEV % SEV Consideration % SEV Consideration Ministry Consideration Document Documents Received Documents Received Requests within Four Weeks

Agriculture, Food and Rural 3 100% 33% Affairs (OMAFRA)

Environment and Climate 124 94% 69% Change (MOECC)

Government and Consumer 1 100% 100% Services (MGCS)

Municipal Affairs and 4 100% 75% Housing (MMAH)

Natural Resources and 50 86% 76% Forestry (MNRF)

Northern Development and 6 100% 83% Mines (MNDM)

Tourism, Culture and Sport 3 67% 0% (MTCS)

Transportation (MTO) 3 100% 100%

44 Environmental Commissioner of Ontario EBR Applications

Environmental Protection Report 2015/2016: Volume 1 45 CHAPTER 2 EBR APPLICATIONS

2.0 Introduction 47

2.1 The EBR Application Process 48

2.2 Ministries’ Handling of Applications for Review in 2015/2016 51

2.3 EBR Application Success Stories 61

2.3.1 EBR Application Prompts New Proposed Rules for Excess Soil Management 61

2.3.2 Public Should be Alerted to Poor Water Quality After Wastewater Overflows and Bypasses 69

2.3.3 Government to Give Public Access to Spills Information through Open Data Catalogue 72

2.3.4 Improving Well Water Safety 73

2.4 Ministries’ Handling of Applications for Investigation in 2015/2016 76

2.4.1 Decades-Old Non-Compliance on Illegal Dump Investigated by the MOECC 79

46 Environmental Commissioner of Ontario One of the roles of the ECO is to annually re- 2.0 Introduction view and report on how ministries handle applications for review and investigation. This Applications for review and investigation are po- chapter of the report provides an overview of tentially powerful tools provided in the Environ- the application for review and investigation pro- mental Bill of Rights, 1993 (EBR) that the public cesses, as well as summarizes all applications can use to influence government decisions and submitted, concluded and that remain ongoing to ensure environmental laws and policies are in our 2015/2016 reporting year (April 1, 2015 upheld. It is a formal process to ask the gov- – March 31, 2016). This chapter also highlights ernment to address an environmental issue by: in greater detail a handful of successful appli- reviewing an existing policy, law, regulation or cations that were either completed this year or instrument (e.g., a permit, license, etc.); review- are ongoing. ing the need for a new policy, law or regulation; or investigating an alleged contravention of a In addition to this report, the ECO also issued law, regulation or instrument. a report card in June 2016 – EBR Performance Checkup, Respect for Ontario Environmental Many Ontarians have used the EBR application Rights 2015/2016 – on how well the Ontario process to urge the government to action, such government respected Ontarians’ environmen- as overhauling the Endangered Species Act and

tal rights under the EBR, including how min- EBR Applications Mining Act, reviewing how road salts are ap- istries handled applications for review and in- plied to highways, and investigating bird colli- vestigation. For more information on the report sions with tall buildings in Toronto. Since the card, see Chapter 1.1 in this report or our web- EBR came into force in 1994, Ontarians have site, eco.on.ca. submitted over 600 applications for review and over 230 applications for investigation.

Ontarians have submitted over 600 applications for review and over 230 applications for investigation.

Environmental Protection Report 2015/2016: Volume 1 47 2.1 The EBR applicants acknowledging the application. Application Process The ministry must consider each application in a preliminary way to determine whether Application for Review Process the public interest warrants a review or not. The Environmental Bill of Rights, 1993 (EBR) There are a number of items a ministry gives Ontario residents the right to ask a may consider when deciding whether prescribed ministry to review (i.e., amend, or not a review is warranted, including: repeal or revoke) an existing policy, act, regulation or instrument in order to protect • The ministry’s Statement of Environmental the environment. The public also has the right Values; to ask the government to review the need to • The potential for harm to the environment if develop a new policy, act or regulation in order the review is not undertaken; to protect the environment. These requests • Whether the matter is already subject to are called “applications for review.” Only periodic review; ministries that are prescribed under the EBR • Relevant social, economic, scientific or for the purposes of applications for review other evidence; can be asked to undertake a review. There are • Submissions from anyone else with a direct currently nine ministries that are prescribed: interest in the application; • Resources needed to conduct the review; • Ministry of Agriculture, Food and Rural • How recently the act, regulation, instrument Affairs (OMAFRA); or policy was proposed or approved; • Ministry of Energy (ENG); • The extent to which the public had • Ministry of the Environment and Climate an opportunity to participate in the Change (MOECC); development of the policy, act, regulation or • Ministry of Government and Consumer instrument; and/or Services (MGCS); • Any other matter that the minister considers • Ministry of Health and Long-Term Care relevant. (MOHLTC); • Ministry of Municipal Affairs and Housing If the policy, act, regulation or instrument was (MMAH); approved in the past five years – and underwent • Ministry of Natural Resources and Forestry public participation consistent with the EBR – a (MNRF); ministry may deny a review on the basis that • Ministry of Northern Development and it is not in the public interest. However, the Mines (MNDM); and minister could decide to undertake a review if • Ministry of Transportation (MTO). there is new evidence that failing to undertake the review could significantly harm the The EBR contains a number of processes and environment, and this evidence was not taken timelines that the ECO and ministries must into account when the decision was made. follow when handling applications for review. To make an application, two Ontarian residents Within 60 days of receiving an application, the must complete an Application for Review ministry must advise the applicants and the ECO Form (available from the ECO) and submit of its decision whether or not it will undertake the it, along with all attachments, to the ECO. requested review along with a brief statement of the reasons for the decision. If the ministry Within 10 days of receiving an application, denies the application, the process ends. If the ECO must forward the completed the ministry agrees to undertake the review, application to one or more appropriate there is no time limit on how long the ministry ministries for consideration. Within 20 can take to complete the review, provided the days of receiving an application from the review is carried out within “a reasonable time.” ECO, the ministry must send a letter to the

48 Environmental Commissioner of Ontario The ministry must notify the applicants and the Ontarians must complete an Application for ECO of the outcome of its review within 30 days Investigation Form (available from the ECO) of completing the review and state what action and submit it, along with all evidence of the (if any) will be taken as a result of the review. alleged violation(s), to the ECO. The ECO will The application for review process is then over. forward the application to the appropriate When the application process is over, the ECO ministry within 10 days of receiving it. Within then reviews how the ministry received, handled 20 days of receiving an application from the and disposed of applications for review. ECO, the ministry must send a letter to the applicants acknowledging the application. Application for Investigation Process The EBR also provides Ontarians with the If the ministry decides not to investigate, it must right to ask a ministry to investigate alleged let the applicants, the alleged contraveners, contraventions of prescribed acts, regulations and the ECO know within 60 days of receiving or instruments through an “application for the application. The ministry’s response should investigation.” Applications for investigation indicate why it decided not to investigate. The may be filed for alleged contraventions of ministry does not have to investigate if: specific acts, regulations and instruments. The following acts are prescribed for the • The application is considered frivolous or purposes of an investigation under the EBR: vexatious; • The alleged contravention isn’t serious • Aggregate Resources Act; enough to warrant an investigation; • Conservation Authorities Act; • The alleged contravention isn’t likely to • Crown Forest Sustainability Act, 1994; harm the environment; or • Endangered Species Act, 2007; • An investigation is already under way or has • Environmental Assessment Act; already been completed. • Environmental Protection Act; • Far North Act, 2010; If the ministry denies the application, the • Fish and Wildlife Conservation Act, 1997; process comes to an end. • Green Energy Act, 2009; • Invasive Species Act, 2015 (on the day the If the ministry decides that an investigation is act comes into force); warranted, it must complete the investigation, • Kawartha Highlands Signature Site Park Act, or give the applicants an estimate of the time 2003; required to complete it, within 120 days of • Lakes and Rivers Improvement Act; receiving an application. Within 30 days of • Mining Act; completing an investigation, the ministry must • Oil, Gas and Salt Resources Act; notify the applicants, the alleged contraveners, • Ontario Water Resources Act; and the ECO. The notification must state • Pesticides Act; what action, if any, the ministry has taken or • Provincial Parks and Conservation Reserves proposes to take as a result of the investigation. EBR Applications Act, 2006; • Public Lands Act; and Once the process has come to an end, Toxics Reduction Act, 2009. either because the ministry denied the • application, or completed an investigation, The EBR contains a number of processes the ECO will review and report on how and timelines that the ECO and ministries the ministry handled the application. must follow when handling applications for investigation. To make an application, two

Environmental Protection Report 2015/2016: Volume 1 49 50 Environmental Commissioner of Ontario The applications submitted this year covered 2.2 Ministries’ a range of environmental issues, including the regulation of a herbicide, an environmental Handling of compliance approval issued to an asphalt site, and how spills are regulated and communicat- Applications for ed to the public. The MOECC determined that Review in the issues brought forward in three of these applications merited a review; the remaining 2015/2016 applications were denied. The MOECC also denied one application that had been submitted The Environmental Bill of Rights, 1993 (EBR) in the 2014/2015 reporting year. provides Ontario residents with the right to ask prescribed ministries to review environmental The MOECC completed three reviews in this legislation, regulations, policies or instruments, reporting year, two of which were submitted or to review the need to develop new protections in previous reporting years. In addition, 12 re- for the environment. views that the MOECC, the Ministry of Natural Resources and Forestry (MNRF) and the OMA- During the ECO’s 2015/2016 reporting year FRA agreed to undertake remained ongoing, (April 1, 2015 – March 31, 2016), Ontarians 10 of which were submitted in previous report- exercised their rights under the Environmental ing years. Of the 12 ongoing reviews, the ECO Bill of Rights, 1993 (EBR) by submitting eight considers 75 per cent of them to be overdue applications for review (the ECO received sev- – a review that has not, in the ECO’s opinion, en applications, but counts applications that been conducted within a reasonable time. In go to more than one ministry as separate ap- June 2016, MOECC published an information plications). The ECO sent four applications to notice on the Environmental Registry providing the Ministry of the Environment and Climate updates on all outstanding applications, and Change (MOECC), two to the Ministry of Ag- committed to update it regularly. riculture, Food and Rural Affairs (OMAFRA), one to the Ministry of Energy (ENG), and one For more details on these application for review, to the Ministry of Health and Long-Term Care see Table 2.2.1 and the subsections below. EBR Applications (MOHLTC) for consideration.

Environmental Protection Report 2015/2016: Volume 1 51 Table 2.2.1. Applications for Review in the 2015/2016 Reporting Year at a Glance (Concluded and Ongoing).

Reporting Year Ministry Undertaken or Status in Review Number Review Topic Submitted Responsible Denied? 2015/2016 *

Ongoing/ R2008014 Air pollution hot spots 2008/2009 MOECC Undertaken Overdue

Environmental Bill of Rights (EBR) (stays pending deci- Ongoing/ R2009016 sions on leave to appeal 2009/2010 MOECC Undertaken Overdue applications; reviewed with R2010009 and R2012003) EBR (review of the EBR; re- Ongoing/ R2010009 viewed with R2009016 and 2010/2011 MOECC Undertaken Overdue R2012003) EBR (prescribed ministries post final copies of Ongoing/ R2012003 Statement of Environmen- 2012/2013 MOECC Undertaken Overdue tal Values; reviewed with R2009016 and R2010009)

Hydraulic fracking (reviewed Ongoing/ R2012005 2012/2013 MOECC Undertaken with R2012006) Overdue**

Hydraulic fracking (reviewed Ongoing/ R2012006 2012/2013 MNRF Undertaken with R2012005) Overdue**

Industrial, commercial and Ongoing/ R2012013 institutional (IC&I) waste 2012/2013 MOECC Undertaken Overdue** diversion

Waste disposal site provi- Ongoing/ R2013002 sions (Richmond Landfill 2013/2014 MOECC Undertaken Overdue Site)

R2013005 Regulation of excess soil 2013/2014 MOECC Undertaken Concluded

Ongoing/ R2013009 Regulation of wells 2013/2014 MOECC Undertaken Overdue

Public notification of sewage R2014001 2014/2015 MOECC Undertaken Concluded bypasses

Soil management in agricul- R2014002 tural operations (linked to 2014/2015 OMAFRA Undertaken Ongoing R2014003)

52 Environmental Commissioner of Ontario Table 2.2.1. Applications for Review in the 2015/2016 Reporting Year at a Glance (Concluded and Ongoing).

Reporting Year Ministry Undertaken or Status in Review Number Review Topic Submitted Responsible Denied? 2015/2016 * Soil management in agricul- R2014003 tural operations (linked to 2014/2015 MOECC Denied Concluded R2014002)

Regulation of glyphosate R2015001 2015/2016 MOECC Denied Concluded (linked to R2015002)

Regulation of glyphosate R2015002 2015/2016 OMAFRA Denied Concluded (linked to R2015001)

R2015003 MicroFIT program 2015/2016 ENG Denied Concluded

Spills from regulated pipe- R2015004 2015/2016 MOECC Undertaken Ongoing lines

Standardize spills response R2015005 2015/2016 MOECC Undertaken Concluded plans

Ingram Asphalt’s environ- R2015006 2015/2016 MOECC Undertaken Ongoing mental compliance approval

R2015007 Vermicomposting policy 2015/2016 OMAFRA Denied Concluded

Radiation Health Response R2015008 Policy and potassium iodide 2015/2016 MOHLTC Denied Concluded distribution EBR Applications * Concluded refers to: applications submitted and denied in the 2015/2016 reporting year; or applications submitted in a previous reporting year, undertaken, and concluded in 2015/2016. Ongoing refers to: applications submitted and undertaken in the 2015/2016 reporting year (but not concluded); or applications submitted in previous reporting years and have not been completed in 2015/2016. Overdue refers to: a review that a ministry has agreed to undertake but the review has not, in the ECO’s opinion, been conducted within a reasonable time.

** These reviews were completed after the end of our reporting year.

Environmental Protection Report 2015/2016: Volume 1 53 Applications for Review Denied in bicide in the world. In June 2015, the 2015/2016 MOECC and the OMAFRA decided not to The MOECC, the ENG, the OMAFRA and the undertake the review because the Pest MOHLTC decided that a review was not warrant- Management Regulatory Agency, the fed- ed for five applications that were submitted to eral agency responsible for assessing the ECO. The reasons ministries gave for de- human health and ecological impacts of clining to undertake these requested reviews herbicides, previously determined that included that the responsibility for the subject glyphosate does not present unaccept- matter falls to another ministry that is not pre- able risks to humans or the environ- scribed under the EBR, or that the program or ment. The ministries also notified the regulatory framework that applicants requested applicants that the Pest Management be reviewed was recently or is currently under Regulatory Agency is currently reviewing review. In all of these cases, the ECO agreed the safety and use of this herbicide. with the ministries’ conclusions that reviews were not warranted at this time based on the MicroFIT Program requirements of the EBR. These applications In April 2015, applicants requested a are summarized below: review of the implementation, rules and regulations of the microFIT program un- Soil Management in der the Green Energy and Green Econo- Agricultural Operations my Act, 2009 (a program to encourage In January 2015, applicants requested development of small or “micro” re- a review of agricultural soil management newable electricity generation projects) in Ontario. In April 2016, the MOECC because it is falling short of its targets ministry denied this application because and goals. In July 2015, the ENG decid- it was already working on a number of ed that a review was not necessary be- related initiatives in an effort to promote cause the act and the microFIT program had already been the subject of various regular reviews and stakeholder consul- Glyphosate is the most widely used tations. The ministry also stated that it broad-spectrum herbicide in the world. is reviewing the potential to transition the microFIT program from a “feed-in-tariff” to a “net-metering” program. the heathy management of soil (e.g., Cli- mate Change Strategy discussion paper Vermicomposting Policy and the Great Lakes Protection Act). The In November 2015, applicants request- MMAH also denied this application in ed that the OMAFRA review the need for the 2014/2015 reporting year but the a new policy on vermicomposting be- review was undertaken by the OMAFRA, cause it is a valuable agricultural activity and is therefore discussed below under that can both manage waste and rebuild ongoing applications. soil. The applicants argued that vermicomposting is inadequately addressed Regulation of Glyphosate by current provincial legislation and pol- In March 2015, applicants requested icy. In January 2016, the OMAFRA de- a review of policies, acts and regula- cided that a review was not warranted tions respecting the use of glyphosate because on-farm vermicomposting can (N-(phosphonomethyl) glycine) given the already occur under the existing regula- health and environmental consequences of its widespread use. Glyphosate is the ...transition the microFIT program most widely used broad-spectrum her- from a “feed-in-tariff” to a “net-metering” program.

54 Environmental Commissioner of Ontario tory framework in Ontario. Additionally, cies as a result of these reviews. Namely, the the ministry stated that the MOECC, the MOECC created a new policy framework related ministry with primary jurisdiction over to excess soil management, committed to de- waste management, was currently con- velop messaging about the health risks of poor sulting on a new provincial waste policy water quality, which will be communicated to – the Strategy for a Waste Free Ontario: the public following all storm events, and com- Building the Circular Economy – which in- mitted to provide public access to information cluded a commitment to develop an Or- on past spills through the Open Data Catalogue ganics Action Plan, and a review by the website. These OMAFRA in advance of the development applications are The MOECC made a number of this strategy would not be in the pub- summarized brief- lic interest. ly below and are of changes to environmentally also each dis- significant policies as a result of Radiation Health Response and Po- cussed in greater these reviews. tassium Iodide Distribution detail in Chapter In December 2015, the Canadian Envi- 2.3. ronmental Law Association and Green- peace Canada requested a review of Regulation of Excess Soil Ontario’s Provincial Nuclear Emergency In November 2013, the ECO received an Response Plan (made under the Provin- application requesting a review of the need cial Nuclear Emergency Response Plan), for a new province-wide policy to address the Potassium Iodide (KI) Guidelines and the issue of excess soil and to properly reg- potassium iodide (KI) distribution poli- ulate how this “fill” is disposed of. Compro- cies. The MOHLTC had recently pre-dis- mised soil can contain mercury, lead, PCBs, tributed KI pills to residents within 10 metals, petroleum, pesticides and other kilometres of the Pickering, Bruce and contaminants. The applicants argued that Darlington nuclear plants and the ap- there is currently a patchwork of regulatory plicants requested that the province oversight by provincial and municipal au- consider expanding the pre-distribution thorities. In January 2014, the MOECC ad- zone. The applicants argued that the vised the applicants that it would undertake province’s current KI distribution inade- a review. However, the MMAH informed the quately protects Ontario’s environment, applicants that a review was unwarranted. public health and safety. In March 2016, On January 26, 2016, the MOECC notified the MOHLTC denied the application as the applicants that it concluded its review it asserted that it is not the appropriate (with the support of a multi-ministry working ministry to review this matter; the Min- group) and that it determined that a new istry of Community Safety and Correc- policy framework was necessary. On the

tional Services is the primary ministry same day, the MOECC posted the draft Ex- EBR Applications responsible for nuclear preparedness, cess Soil Management Policy Framework on but is not prescribed under the EBR. the Environmental Registry (#012-6065) for public review. For more information on this Reviews Concluded in 2015/2016 review, see Chapter 2.3.1 of this report. In this reporting year, the MOECC concluded three reviews in response to EBR applications submitted by members of the public; one review was submitted in 2015/2016 and the remaining two were submitted in previous reporting years. The length of time for the ministry to conclude these reviews ranged from 9 months to over 2 years. The MOECC made a number of changes to environmentally significant poli-

Environmental Protection Report 2015/2016: Volume 1 55 Public Notification of Standardized Spills Sewage Bypasses Response Plans In July 2014, the Lake Ontario Wa- In June 2015, applicants requested a terkeeper requested that the MOECC review of the need for a policy under amend the approvals of two Toronto the Environmental Protection Act (EPA) wastewater treatment plants to require to standardize municipal spills respons- that the public be notified of bypasses es. The applicants were concerned that and overflows, and to add a procedure responses to spills may be inconsistent and that the MOECC does not have data to determine if existing protocols are be- Combined sewer overflows and waste- ing implemented. Additionally, spills may water treatment plant bypasses are not not be reported in a timely manner (or at all) to all relevant agencies. The MOECC required to be publicly reported. agreed to undertake a limited review of public transparency and access to spills response information. In March 2016, for public notification of bypasses to the MOECC notified the applicants that their operations manuals. The appli- it concluded the review. As a result, the cants stated that combined sewer over- ministry determined that the most effec- flows and wastewater treatment plant tive way to provide public access to infor- bypasses are not required to be pub- mation on past spills was to post it on licly reported, which puts public health the Open Data Catalogue website (ontar- at risk when people recreate in waters io.ca/open-data), that the website would polluted by the overflows/bypasses. In be updated twice a year, and that it is September 2014, the MOECC notified “pursuing a web-based system for real the applicants that it would carry out a time spills event reporting.” For more review of public reporting of water quality information on this review, see Chapter issues during severe weather events. In 2.3.3 in this report. July 2015, the MOECC advised the applicants that the review was concluded. Ongoing Reviews in 2015/2016 As a result of the review, the MOECC By the end of the ECO’s 2015/2016 reporting will develop messaging about the health year, there were 12 applications for review that risks of poor water quality, in consulta- ministries agreed to undertake but were not yet tion with other agencies and the appli- concluded. The MOECC is responsible for 10 of cants, which will be communicated to these applications, and the OMAFRA and the the public following all storm events. The MNRF are responsible for one application each. ministry also stated that it will continue Two of these reviews were submitted this re- discussions with Toronto Water on how porting year; the remainder were submitted in it could report bypass events to the pub- previous reporting years and are still ongoing. lic in real-time, and stated it may amend These applications are summarized below. the water treatment plants’ approvals. For more information on this review, see Chapter 2.3.2 in this report.

56 Environmental Commissioner of Ontario Source: Toban B. /flickr used under CC BY-NC 2.0

Air Pollution Hot Spots Regulation Environmental Bill of Rights In January 2009, applicants asked for a Between 2010 and 2012, the ECO re- review of the need for a new regulatory ceived three separate applications that framework to address the gaps in Ontar- requested a review of the EBR or various io’s air pollution laws related to cumula- aspects of it. The applications asked for tive impacts of pollution. The applicants reviews of: the entire EBR and its regu- believe that air pollution “hot spots” lations to better achieve its broad pur- (e.g., neighbourhoods where several poses; the need for jurisdiction to issue types of heavy industry are clustered a stay of a decision on an instrument together) in Ontario threaten the physi- pending the outcome of a leave to ap- cal and psychological health of people peal application under the EBR; and, the living in those areas, and compromise need for prescribed ministries to post their right to live in a healthful environment. The applicants pointed to the environmental health crisis in Aamjiwnaang The applicants pointed to the environmental First Nation near Sarnia as evidence of health crisis in Aamjiwnaang First Nation significant deficiencies in Ontario’s air near Sarnia as evidence of significant pollution regulatory framework. In May 2009, the MOECC agreed to undertake deficiencies in Ontario’s air pollution the review. In June 2016, the MOECC regulatory framework. said that it is working on developing “a policy to support decision-making with respect to Environmental Compliance final copies of their “SEV consideration Approval applications while taking into documents” (i.e., documentation demon- consideration cumulative effects where strating that the ministry considered feasible” and that it convened a working its Statement of Environmental Values group under the O. Reg. 419/05 Exter- when making a decision) on the Environ- nal Working Group to make policy recom- mental Registry. The MOECC agreed to mendations on cumulative effects. The undertake these three reviews together. EBR Applications MOECC also stated that it is “actively In June 2016, the MOECC advised that working on a number of related initia- it is proceeding, in consultation with all tives expected to have a positive impact prescribed Ontario ministries and stake- on local air quality and/or cumulative ef- holders, to undertake a scoped review of fects concerns in the Sarnia area.” The the EBR and its regulations. On July 11, ministry anticipates that the review will 2016, the ministry posted a notice on be completed in early 2017. the Environmental Registry seeking feed- back on select parts of the EBR through a discussion guide (Environmental Reg- istry #012-8002). The ministry anticipates that the review will be completed by the spring of 2017.

Environmental Protection Report 2015/2016: Volume 1 57 Industrial, Commercial and best tools to ensure all businesses take Institutional (IC&I) Waste steps to divert their waste while careful- Diversion ly considering the implications to small In December 2012, applicants request- businesses in particular. The ministry ed a review of O. Reg. 103/94 (Industri- also stated that the Strategy for a Waste- al, Commercial and Institutional Source Free Ontario: Building the Circular Econ- Separation Programs) under the EPA. omy, which will be finalized within 90 That regulation requires that certain days of the proclamation of the Waste- types of industrial, commercial and in- Free Ontario Act, 2016, will commit the stitutional (IC&I) facilities (e.g., retail government to undertake a review of all shopping complexes, schools, restau- three IC&I regulations, including stake- rants, office buildings, multi-residential holder engagement and the creation of a stakeholder working group. The MOECC completed its review in September 2016 ...reduces the amount of recycling (after the ECO’s 2015/2016 reporting year). taking place in Ontario at a time when the province is trying to decrease the Waste Disposal Site Provisions amount of waste going to landfills. (Richmond Landfill Site) In July 2013, the Canadian Environmen- tal Law Association, a local environmental group and a First Nations community buildings, and manufacturing sites) im- jointly submitted an application request- plement on-site source-separation pro- ing that the government review the EPA grams for materials such as corrugated to impose further and more stringent cardboard, food and beverage contain- prohibitions on the establishment, use, ers, fine paper and newsprint. However, operation, alteration or expansion of the regulation only applies to retail es- waste disposal sites at locations that tablishments, retail shopping complexes are hydrogeologically unsuitable, such and office buildings occupying more than as fractured bedrock. The applicants 10,000 square metres. The applicants said that the EPA is incomplete, out- argue that O. Reg. 103/94 is too lenient dated and inadequate to protect the on small businesses, which reduces environment, public health, and safety the amount of recycling taking place in because it focuses on how landfills are Ontario at a time when the province is built, not where they should or should trying to decrease the amount of waste not be built. They provided an example going to landfills. In February 2012, the of alleged groundwater contamination MOECC agreed to undertake a review of from the Richmond Landfill, in the Town the IC&I Source Separation Programs to of Greater Napanee, as a case study consider the applicants’ claim that the for the need to review the EPA (for more regulation is too lenient on small busi- information see Chapter 3.1.1 of this nesses. The MOECC also expanded the report). In October 2013, the MOECC review to include a broader review of all determined that a prohibition on landfill 3R regulations (O. Reg. 101/94, O. Reg. siting in the EPA is not required because 102/94, O. Reg. 103/94, and O. Reg. the current site specific assessment 104/94). In June 2016, the MOECC process allows the ministry to deter- stated that the review will identify the mine if a site is suitable for landfill pur-

58 Environmental Commissioner of Ontario poses. However, the ministry agreed to Soil Management in “conduct a review of guidance materials Agricultural Operations related to the ministry’s landfill approv- In January 2015, applicants requested a als processes, to determine if changes review of the need for an act that makes could be made to further enhance the the sustainable use of soil a goal of the level of protection to human health and Province of Ontario. Among other things, the environment.” In June 2016, the the applicants argued that recent trends MOECC stated that the review includes in agriculture jeopardize sustainability two parts: a scan looking at best practic- in this sector and current policies, reg- es in leading jurisdictions (anticipated to ulations and incentives are insufficient be completed June 2016); and a review to encourage responsible soil manage- of the state of the science regarding site ment. In April 2015, the OMAFRA agreed conditions and performance of selected to undertake this requested review, al- existing Ontario landfills (anticipated to though the MOECC and the MNRF de- be completed in September 2016). The clined it. In June 2016, the OMAFRA ministry anticipates that the review will notified the ECO that it is developing an be completed by October 2017. Agricultural Soil Health and Conservation Strategy in collaboration with stakehold- Regulation of Wells ers. The OMAFRA anticipates that it will In January 2014, the Canadian Environ- complete the strategy in 2017. mental Law Association submitted an application asking for a review of the current legislative and regulatory frame- The MOECC agreed to undertake a work governing Ontario wells, specifically the Ontario Water Resources Act (OWRA) focused review of the Wells Regulation and Regulation 903 (Wells), because it and related sections of the OWRA. is incomplete, outdated and inadequate to protect the environment and public health and safety. In December 2014 the MOECC agreed to undertake a fo- Spills from Regulated Pipelines cused review of the Wells Regulation and In June 2015, Ecojustice requested a related sections of the OWRA. In June review of existing laws and regulations 2016, the MOECC reported that it had (i.e., the OWRA and the EPA) to protect completed an initial technical assess- Ontarians and the environment from the ment of the issues under review, includ- adverse effects of hydrocarbon spills ing comments received by key stakehold- from provincially regulated pipelines. ers and a scientific/jurisdictional scan. Also, Ecojustice requested a number The MOECC advised that it is consulting of amendments to the environmental EBR Applications with other ministries and anticipates and penalties regulations (O. Reg. 222/07, that the review will be completed by fall 223/07 and 224/07), such as requiring 2016. For a detailed description of this spill prevention and contingency plans application, refer to Chapter 2.3.4 of for pipelines because pipeline owners this report. and operators are not always held accountable for spills when the MOECC decides not to lay charges. The applicants stated that an environmental penalty

Environmental Protection Report 2015/2016: Volume 1 59 regime could deter pipeline spills, as it age the potential adverse environmental would ensure that the polluter pays. In effects from fracking operations. They October 2015, the MOECC agreed to un- also noted that the current regulations dertake a review as part of its next pe- make fracking-produced waters exempt riodic review of the Environmental Penal- from regimes of “hazardous waste” ties program, which is required every five and/or “liquid industrial waste” under years under legislation. In June 2016, the EPA and its associated regulations, the MOECC estimated that the review and asked the government to eliminate will be completed by December 2017. those exemptions. In January 2013, the MOECC and the MNRF jointly agreed to Ingram Asphalt’s Environmental undertake this review, including a review Compliance Approval of definitions and sections of the Oil, In September 2015, applicants request- Gas and Salt Resources Act and the EPA ed the revocation or substantial revision that relate to high-volume hydraulic frac- of an Environmental Compliance Approv- turing. In June 2016, the MOECC stated al (ECA) issued to Ingram Asphalt. The that both ministries are finalizing the re- applicants argued that the ECA should view and continuing to monitor activities not have been issued because Ingram in other jurisdictions. Additionally, the Asphalt’s operating site is located too MNRF issued a statement that it would close to residences and businesses, not consider applications for the use of high-volume hydraulic fracturing before conducting proper consultations with The MNRF...would not consider applications stakeholders, Aboriginal communities, and the public. The ministries complet- for the use of high-volume hydraulic fracturing ed their reviews in July 2016 (after the before conducting proper consultations ECO’s 2015/2016 reporting year). with stakeholders, Aboriginal communities, Overdue Reviews in 2015/2016 and the public. The EBR contains a number of timelines that a prescribed ministry must adhere to when it receives an application for review, such as who are suffering adverse effects from sending the applicants an acknowledgment let- continuous noise, vibrations, dust and ter within 20 days of receiving an application, odours emitted by operations on the or notifying the applicants about whether it will site. In December 2015, the MOECC conduct a review within 60 days or receiving agreed to undertake a review of the an application. However, if a ministry decides ECA. In June 2016, the MOECC stated to conduct a review, the EBR only states that that this review is being conducted in the review must be completed in a “reasonable conjunction with the MOECC’s review of time” – it does not specify how long a ministry Ingram’s application for amendments to can take to review an application. As a result, its ECA for air and noise. The MOECC some ministries take years to complete reviews estimated that the review will be com- under the EBR. pleted by November 2016.

Hydraulic Fracturing Some ministries take years to complete In October 2012, Ecojustice submitted reviews under the EBR. an application requesting a review of existing laws and the need for new laws to protect Ontarians and the environment from the adverse effects of high The ECO considers an application to be “over- volume hydraulic fracturing (“fracking”). due” when a ministry has agreed to undertake The applicants argued that Ontario’s a review but the review has not, in the ECO’s laws pre-date modern fracking practices opinion, been conducted within a reasonable and, therefore, are ill-equipped to man- time. Of the reviews that were undertaken but

60 Environmental Commissioner of Ontario that have not yet been concluded, the ECO istry that provided an update about all of its considers 75 per cent to be overdue as of ongoing reviews (see Environmental Registry July 2016. The MOECC is responsible for all #012-7383). The MOECC said that it would of these overdue reviews. In fact, one review update this notice “on a regular basis.” – a request for a new regulatory framework for air pollution hot spots – has been going on for The ECO commends the MOECC for its recent over seven years. efforts to provide applicants and our office with updates on the progress of reviews that Failing to complete applications for review are not yet concluded. The ECO encourages within a reasonable time is disrespectful the MOECC to continue these efforts in the fu- of the public’s environmental rights and un- ture and provide updates on the Environmen- dermines the integrity of the process. In the tal Registry at least semi-annually. Additional- ECO’s EBR Performance Checkup: Respect for ly, the ECO urges other prescribed ministries Ontario Environmental Rights 2015/2016, we to follow the MOECC’s lead by providing appli- identified overdue applications as a priority cants, the ECO and the public with regular up- area for improvement in 2016/2017; specif- dates for all ongoing reviews under the EBR. ically that ministries should conclude all overdue reviews in 2016/2017 and conduct and The ECO recommends that the MOECC con- provide decisions on reviews with greater alac- clude all overdue reviews in 2016/2017 rity going forward. and, further, should conduct reviews with greater speed going forward. As of September 2016, the ECO considers the following six reviews to be overdue:

• New Air Pollution Hot Spots Regulation; • Environmental Bill of Rights, 1993 (three inter-related reviews); • Waste Disposal Site Provisions under the Environmental Protection Act (Richmond 2.3 EBR Application Landfill Site); and Success Stories • Ontario Water Resources Act and Regula- tion 903 (Wells). This section highlights three successful applications for review that were completed during Following the end of the ECO’s 2015/2016 re- the past reporting year, as well as one suc- porting year, the MNRF and the MOECC finally cessful application for which the review is still completed three of the long-overdue applica- ongoing. tions for review.

Since some EBR reviews can take many 2.3.1 EBR months or years to complete, it is essential Application Prompts for ministries to provide regular updates on EBR Applications the progress of ongoing reviews to applicants New Proposed Rules for and the ECO. Unfortunately, ministries have of- Excess Soil ten left applicants and the ECO in the dark for years after an application is submitted. Management

In the spring of 2016, at the ECO’s request, All over the province – but especially in the the MOECC took a number of steps to update Greater Toronto Area – developers of new con- applicants and the ECO on the progress of its do and office towers, and other projects, like ongoing reviews. The MOECC told the ECO in sewer works, water mains, transit and roads, June 2016 that it met or talked with most of dig huge quantities of soil out of the ground. the applicants about the status of their re- Sometimes this material can be incorporated quested reviews. The MOECC also posted an back onto a project site, but often the excess information notice on the Environmental Reg- soil is trucked off site for disposal elsewhere, at which point it is often referred to as “fill.”

Environmental Protection Report 2015/2016: Volume 1 61 Most often, excess soil is deposited on rural these trucks use also generates large quanti- land, although sometimes the soil is dumped in ties of greenhouse gas emissions. Moreover, a landfill. Fill frequently ends up on farmland or is soil is an important resource that should be put used to rehabilitate pits and quarries. Large fill to good use, rather than dumped in a landfill, sites have created huge conflicts in many parts whenever possible. Excess soil management can also represent substantial project costs – for example, preliminary findings from a re- ...enough to fill the Rogers Centre cent study found that handling and disposing between ten and sixteen times. of excess soils represents about 13 per cent of a total project cost, on average. For all these reasons, adequate oversight and protocols for proper disposal and reuse, such as rules of rural Ontario – particularly in communities for soil testing and tracking, are necessary. close to Toronto. Several Ontario fill operations at small airport and airstrip sites have also gen- In 2012, the ECO urged the government to re- erated controversy regarding the enforceability view the management and disposal of excess of local rules on these federally regulated sites. soils (see “Waiting for a Change: The Oak Ridg- es Moraine Conservation Plan,” Chapter 3.3 of The Residential and Civil Construction Alliance the ECO’s 2011/2012 Annual Report, Part 2). of Ontario (RCCAO) estimated in 2012 that between 16 and 25 million cubic metres of fill were In 2013, two Ontario residents used the Envi- produced per year – enough to fill the Rogers ronmental Bill of Rights, 1993 to ask for a new Centre between ten and sixteen times. However, province-wide policy to address compromised no comprehensive system currently exists for soil and to regulate the disposal of fill. This tracking the quantity or movement of excess soil. application for review outlined how there is currently a patchwork of regulatory oversight Excess soil can have serious environmental, by provincial and municipal authorities. It also economic and social impacts. For example, if outlined how the failure to ensure the appro- soil is contaminated, it can impair land quality, priate disposal of compromised soil creates limit future uses, compromise water resources, significant environmental and health concerns. and pose health risks when deposited on another property. Even clean fill when disposed of Who’s Responsible for Fill? in bulk can have impacts. It can interfere with The Ministry of the Environment and Climate local hydrology by altering drainage or cause Change (MOECC), municipalities, and con- compatibility issues with adjacent land uses. servation authorities all have the author- Noise and dust from trucking and dumping ity to regulate certain aspects of excess soil large amounts of soil can constitute a nuisance disposal. However, amid this patchwork, no to neighbouring properties. The transport fuel single body in Ontario bears the overall responsibility for regulating these materials.

Ministry of the Environment and Climate Change The MOECC can regulate excess soils that cause or may cause an “adverse effect” as defined under the Environmental Protection Act (EPA), or that could impair water quality in violation of the Ontario Water Resources Act. However, because there is currently little sam- pling and tracking of excess soils, the MOECC may be unaware when fill materials have the potential to cause an adverse effect. In some cases, badly contaminated fill has created huge enforcement challenges for the MOECC.

62 Environmental Commissioner of Ontario 16 - 25 million cubic metres of ll are produced each year in Ontario

That’s enough to ll the Rogers Centre 10-16 times

That’s also 1.6 - 2.5 million truckloads of ll

The MOECC also regulates materials that quali- 153/04 under the EPA usually requires such fy as a “waste” under Regulation 347 (General – a site to obtain a Record of Site Condition Waste Management) under the EPA, but it does that shows whether the site meets the appli- not apply to soil that qualifies as “inert fill.” In- cable soil, groundwater and sediment criteria. ert fill is defined as “earth or rock fill or waste While this regulation limits which soils may of a similar nature that contains no putrescible be imported into such a site, it does not ad- materials or soluble or decomposable chemical dress the issue of the potentially contaminat- substances.” This definition has proven close to ed soils leaving a brownfield site (although unworkable because of a lack of specific quality MOECC’s other regulatory tools might apply criteria and site-specific guidance. Stakehold- in such a case). Moreover, the soil standards ers, the MOECC and courts have all struggled set out in this regulation are specific to brown- EBR Applications to understand and apply the concept of “inert fields redevelopment and they are not appli- fill.” For example, it is unclear whether soil with cable to soil management or fill in general. moderate contaminant levels could legitimate- ly be moved to another site with similar con- In January 2014, the MOECC released Man- taminant levels. Similarly, soil containing road agement of Excess Soil – A Guide for Best Man- salt or weed seeds might qualify as inert fill agement Practices (Environmental Registry but could be inappropriate for use on farmland. #011-7523). The guide recommends best practices for very large source and receiving sites, The ministry also plays a role where former transportation, procurement and temporary commercial or industrial lands are redeveloped soil storage sites. It also encourages munici- for a more sensitive use (i.e., brownfields re- palities and conservation authorities to take a development). In these circumstances, O. Reg. proactive approach to managing excess soil.

Environmental Protection Report 2015/2016: Volume 1 63 Conservation Authorities permit, such as requiring a management plan, Under the Conservation Authorities Act, conser- tracking and testing. Municipalities can also reg- vation authorities are empowered to make regu- ulate the quality of the material. However, clear lations that apply to their area of jurisdiction to: and consistent standards are not applied across municipalities. While some by-laws reference • Prohibit, regulate or require the conserva- the EPA or the soil standards set out in O. Reg. tion authority’s permission to change or 153/04, others simply include statements that interfere in any way with a wetland or the soil should be “clean.” Conversely, some munic- existing channel of a river, creek, stream or ipalities have enacted highly restrictive by-laws, watercourse; and for example, the Municipality of Clarington’s by- • Prohibit, regulate or require the conserva- law prohibits any fill from outside of Clarington. tion authority’s permission for development The fees for site alteration permits are also that may affect the control of flooding, ero- inconsistent across municipalities, creating sion, dynamic beaches, pollution or the con- an uneven playing field across the province. servation of land.

In other words, conservation authorities can The fees for site alteration permits regulate the placement of fill if there is a possibility of pollution or issues with water flow. are inconsistent across municipalities, However, conservation authorities are some- creating an uneven playing field what restricted in what they are legally allowed across the province. to consider when deciding whether to allow filling activities. For example, an authority cannot refuse to issue a permit due to social consid- Such site alteration by-laws can be powerful erations such as truck traffic or noise. More- regulatory tools, but generally only on the re- over, the Conservation Authorities Act does not ceiving end; municipalities have little control provide for public consultation on such deci- over practices at source sites. Moreover, there sions or the consideration of municipal by-laws. are a number of circumstances under which a site alteration by-law cannot apply; for exam- While all of Ontario’s 36 conservation authori- ple, municipal by-laws do not have any effect ties regulate filling activities in some form, the if there are applicable Conservation Author- particular challenges of managing large-scale ities Act regulations in place. The Municipal fill operations have prompted several conser- Act, 2001 also includes several exemptions vation authorities to develop policies for regu- to the types of activities a site alteration by- lating such projects, including the Central Lake law may apply to (e.g., the use of fill as part Ontario Conservation Authority, the Credit Valley of drain construction under the Drainage Act Conservation Authority, the Grand River Conser- or the Tile Drainage Act). Similarly, the Farming vation Authority, Kawartha Conservation, the and Food Production Protection Act, 1998 pro- Lake Simcoe Region Conservation Authority and hibits municipal by-laws from restricting activ- the Nottawasaga Valley Conservation Authority. ities that qualify as a “normal farm practice.”

Municipalities Municipalities may also lack the technical ex- Under the Municipal Act, 2001, municipal- pertise to establish effective site alteration ities can adopt site alteration by-laws that by-laws or may not have the capacity for mon- prohibit or otherwise regulate the placing itoring and enforcing such by-laws if they exist. or dumping of fill, the removal of top soil and altering the grade of land. In 2013, a Other Ministry Roles study commissioned by the RCCAO surveyed Several other ministries play a limited role in 143 upper and lower-tier municipalities and overseeing certain aspects of excess soils, found that 70 had developed a fill by-law. including:

For example, a municipality can require a land- • the Ministry of Natural Resources and For- owner to obtain a permit to place excess soil on estry (MNRF), which may integrate soil man- a property, and may impose conditions on that agement requirements into licences and

64 Environmental Commissioner of Ontario permits under the Aggregate Resources Act, tal Registry in January 2016 (#012-6065). The and is responsible for conservation authori- goals of the proposed framework are: to protect ties and associated regulations; human health and the environment from the in- • the Ministry of Transportation (MTO), which appropriate management of excess soil; and to implements best management practices for encourage the beneficial re-use of excess soil. highway construction; and • the Ministry of Agriculture, Food and Rural The framework proposes 21 actions to ad- Affairs, which promotes best management dress the identified regulatory and policy practices for agricultural operations. gaps, under the broad categories of: source sites; interim sites; receiving sites; techni- The Ministry of Municipal Affairs and Housing cal standards; planning for re-use opportu- (MMAH) and Ministry of Economic Develop- nities; and integration and implementation. ment, Employment and Infrastructure (MEDEI) The framework also identifies the responsible also play important roles in Ontario’s excess party for each action, and, in some cases, soil problem. While these ministries do not di- provides rough timelines for implementation. rectly regulate the transportation or placement of excess soil, their policies and projects (e.g., Greater Responsibility for Source Sites encouraging brownfield redevelopment and Currently, responsibility for managing excess urban intensification, building transportation soils falls primarily on the receiving sites, infrastructure, etc.) directly influence the huge leaving the sites that produce the materials amounts of excess soils produced in the prov- largely unregulated. Yet source sites are of- ince. For example, the MEDEI’s 12-year infra- ten in the best position to manage the risks structure plan includes spending $160 billion associated with the excess soils they produce. on hundreds of projects like roads, bridges, transit systems, schools and hospitals. The The framework proposes a new regulation un- MMAH is also responsible for administering der the EPA, which would require large and/ the Municipal Act, 2001 and the Planning Act. or riskier source sites to develop and implement an excess soil management plan; What the Government Proposes to do it would have to be certified by a Qualified about Fill Person and provided to the MOECC and lo- The ECO forwarded the November 2013 appli- cal authorities. Such a plan would include: a cation for review to the MOECC and the MMAH. characterization of the soil; a list of appropri- The MOECC agreed to undertake the review – ate, authorized receiving sites; and testing, with support from the MMAH – and in January tracking and record-keeping requirements. Ex- 2016, concluded that a new policy framework cess soil management plans could also be re- for managing excess soil was necessary. The quired for the issuance of certain building per- MOECC agreed with the applicants that the mits. The proposed framework also suggests current excess soil management policy is in that the MMAH and the MOECC will develop need of clarification and that new policies may guidance to “promote” linking soil manage- be necessary to address key policy gaps, in- ment requirements to Planning Act approvals. EBR Applications cluding: greater responsibility for source sites; clearer roles and responsibilities for all over- This increased responsibility for source sites sight and management bodies; better oversight will be particularly important for brownfield of receiving sites; greater clarity on existing sites, which often have to remove large quan- regulations; enhanced enforcement mecha- tities of soils with elevated contaminant lev- nisms; clearer technical guidance on soil reuse els. While stringent standards exist for the soil and testing; better tracking of soil movement; that is placed in these sites, the brownfields protection of sensitive sites; and greater con- regulation (O. Reg. 153/04) does not include sideration of excess soil management when requirements for the management and track- planning for development and infrastructure. ing of materials that leave a site. The framework proposes regulatory amendments “to To address these policy gaps, the ministry pre- clarify requirements and ensure alignment pared the draft Excess Soil Management Policy both as a source site and receiving site.” Framework, and posted it on the Environmen-

Environmental Protection Report 2015/2016: Volume 1 65 These new requirements will likely represent increased costs for transit and other infrastructure projects. However, the magnitude of these costs is not yet clear and they may be offset by more efficient soil management achieved through improved planning (see below).

New Tools and Support for Receiving Sites Municipalities and conservation authorities have the primary responsibility for regulating receiving sites for excess soils. However, as discussed above, there are jurisdictional and capacity issues that create challenges for municipalities in regulating such sites.

Currently, municipal site alteration by-laws have no effect in areas regulated by a conservation authority. This has proven to be some- what problematic, as conservation authorities can only consider certain factors in making decisions about fill, while municipalities have much broader powers in this respect. This has also generated conflicts for sites that are partially covered by both municipal and conservation authority jurisdiction. The framework states that the MMAH and the MNRF will consider amending the Municipal Act to Encouraging Storage and Beneficial remove the restriction on the application of Re-Use of Soil site alteration by-laws, allowing conservation The framework includes several proposed authorities and municipalities to work togeth- measures to encourage the temporary storage er in regulating the placement of excess soils. and beneficial re-use of soil. These measures should help reduce the negative impacts as- In addition, the MMAH and the MOECC are sociated with transporting large quantities of proposing to develop guidance to support mu- soil, including greenhouse gas emissions.They nicipalities in regulating excess soil (i.e., to should also reduce landfilling of soil resources. inform site alteration by-laws and fill management plans). The framework also states that As part of this initiative, the MOECC will the MMAH and the MNRF will explore ways to clarify when soil processing (i.e., remedi- improve compliance and enforcement with the ation) sites require waste approvals. Soil Municipal Act and the Conservation Authorities banking will be an important part of this ef- Act. However, the framework does not provide fort, but such operations are challenging to any indication of plans to increase resources regulate. A new EPA regulation will prescribe for additional compliance efforts by conserva- requirements for soil storage sites and clar- tion authority staff or municipal by-law officers. ify when such sites require an approval. The framework also proposes potential up- Finally, the MNRF will consider developing re- dates to the provincial land use planning cord-keeping requirements for excess soils framework to encourage municipalities to iden- that are brought onto aggregate sites for re- tify appropriate storage and processing sites habilitation purposes. for excess soil. The MMAH and the MOECC will encourage municipalities to develop soil

66 Environmental Commissioner of Ontario re-use strategies as part of planning process- Two proposed actions are particularly signifi- es. In addition, the province will support pilot cant. First, the MOECC has committed to de- projects to help promote opportunities for re- veloping new technical standards for excess use. The MOECC, together with industry, will soil re-use including: the protection of sensi- also investigate market mechanisms (similar tive sites; appropriate siting based on back- to the United Kingdom’s CL:AIRE program) to ground conditions; and the use of risk-based encourage soil reuse. standards. The MOECC also proposes to amend the definition of “inert fill” under Reg- ulation 347 to clarify when excess soil is a “waste” – this definition could tie in with the Challenges in managing excess soil new re-use standards. stem from the lack of clarity on the The MOECC has also committed to develop- applicable standards and practices. ing guidance on soil testing requirements, as well as guidance for smaller, lower risk source or receiving projects or sites (e.g., testing and inspection protocols). Other New Standards and Guidance Several of the challenges in managing excess Best management practices and other guid- soil stem from the lack of clarity on the ap- ance proposed by the framework include: plicable standards and practices, as well as excess soil management guidance for Quali- the roles and responsibilities of industry and fied Persons; best management practices for government bodies. The framework proposes farmers that import excess soil on their lands; several actions to address some of these am- and guidance for considering excess soil in biguities, including regulatory amendments, environmental assessment processes. The technical guidance, best management practic- Ontario government (including the MOECC, es, and other types of guidance. the MTO and the MEDEI) will also review and update guidance for provincial projects like transportation and infrastructure. EBR Applications

Environmental Protection Report 2015/2016: Volume 1 67 ECO Comment still to come, and on adequate enforcement ef- For many years the Ontario government has forts by the MOECC. For example, it is not clear failed to comprehensively manage the excess which sites will be required to develop materials soils generated by large development and in- management plans (e.g., volume thresholds, frastructure projects like condo and office types of properties). Critically, it is not apparent buildings, subdivisions, subway tunnels, and how the materials management plan require- highways. This significant regulatory gap has ment will be integrated into decisions on build- caused a great deal of turmoil within numerous ing permits and Planning Act approvals. Similar- communities in Ontario as they struggle to deal ly, the technical details of soil quality standards with large amounts of soil being trucked in and and forthcoming guidance will also help deter- dumped onto local land on a daily basis. Un- mine the effectiveness of these proposals. Mu- til now, the people living in these communities nicipalities and conservation authorities will be have seen little action to alleviate concerns largely responsible for compliance with most of about potential contamination and other im- these new measures on the ground, so it will be critical to ensure that they have the technical capacity and the resources to effectively fulfill This significant regulatory gap has caused their responsibilities. a great deal of turmoil within numerous The ECO applauds the applicants for initiating communities in Ontario as they struggle to these changes with their effective use of the deal with large amounts of soil. Environmental Bill of Rights, 1993. The ECO also commends the MOECC for undertaking this review and taking the first steps to develop and pacts from the huge mounds of dirt that can implement measures to protect Ontario’s land, appear on neighbouring properties, often with water, and health from the impacts of improp- little warning or public consultation. erly managed excess soils. The ECO is also pleased to see that many ministries and exter- The new actions proposed in the MOECC’s draft nal stakeholders co-operated extensively with framework have the potential to prevent and control the major environmental effects from excess soils. Notably, the requirement for a soil The ECO applauds the applicants for management plan could be a powerful tool for initiating these changes with their environmental protection. New soil quality stan- effective use of the Environmental Bill dards, along with testing and tracking requirements, will also help to minimize the risks often of Rights, 1993. associated with excess soils. Perhaps equally as important is the framework’s recognition of the need to conserve soil – a limited and valu- the MOECC on this review and the development able natural resource. Hopefully, the actions of the framework. While the MOECC is in the proposed under the framework will create clarity best position to regulate the risks associated on the requirements for storing and remediat- with excess soils, the policies of the MMAH ing excess soils, and measures to encourage and the resources of the MEDEI encourage the re-use will mean that less material ends up in generation of massive quantities of excess soil. landfills. The quality and extent of ongoing involvement of the MMAH and the MEDEI will be crucial el- Properly managing excess soil is a complex and ements in resolving the problems associated multifaceted challenge. The ECO is optimistic with excess soil management in Ontario. about the suite of legislative, regulatory and policy tools that the MOECC has proposed to address this issue going forward. However, the effectiveness of the proposed approach hinges on the details of this new regulatory scheme

68 Environmental Commissioner of Ontario 2.3.2 Public Should be to sewage systems, overflows and bypasses could increase as a result of the higher number Alerted to Poor Water of severe storms that is an expected conse- quence of climate change. (For more informa- Quality After Wastewater tion about combined sewer overflows and sew- Overflows and Bypasses age bypasses, see pages 132-133 of the ECO’s 2004/2005 Annual Report and pages 145- In natural settings, rain and melted snow 150 of the ECO’s 2005/2006 Annual Report.) (“stormwater”) is absorbed and filtered by soil, but urban areas are rife with impermeable surfaces like asphalt, concrete, and roofs that do Thunderstorms dropped a record- not absorb this precipitation. “Stormwater run- breaking 126 millimetres of rain in off” is the stormwater that flows across these hard surfaces, picking up garbage, pesticides, just a few hours. animal wastes, salts, grease and other pollutants before flowing into storm sewers and ultimately discharging into nearby lakes and rivers. Sewage Bypasses in Toronto On July 8, 2013, Toronto experienced one of “Wastewater” is the contaminated water that the most intense rainfalls in its history. Thun- residents and businesses flush down toi- derstorms dropped a record-breaking 126 mil- lets and empty down drains. Modern sewer limetres of rain in just a few hours in some systems transport stormwater and waste- areas, far exceeding storm sewer capacity and water in two separate pipes. But some old- flooding homes, streets and railroad tracks. er systems, like those in older parts of To- Because Toronto is serviced by a combina- ronto, Hamilton and Ottawa, collect both in tion of stormwater sewers, sanitary sewers “combined sewers,” which transport both that transport only wastewater, and combined stormwater and wastewater in a single pipe. sewers, two wastewater treatment plants bypassed large volumes of mixed wastewater and In most combined sewer systems, the pipe stormwater into Lake Ontario; the Ashbridges transports the water to a treatment plant be- Bay Treatment Plant bypassed an estimated fore it is discharged into a waterbody. But during 704,846 cubic metres (m3), and the Humber heavy rainfalls and snowmelts, the large volume Wastewater Treatment Plant bypassed an es- of wastewater and stormwater can cause the timated 367,364 m3. That combined volume combined sewer to overflow into lakes, rivers, would more than half-fill the Rogers Centre. streets, and sometimes people’s basements. This is referred to as a “combined sewer over- Although the 2013 storm was an extreme EBR Applications flow.” A large volume of rain or snowmelt can also event, both treatment plants have had numer- cause water treatment plants to redirect waste- ous bypasses over the past few years (see Ta- water and stormwater into waterbodies with lit- ble 2.3.2.1). The City of Toronto adopted a Wet tle or no treatment. This is called a “wastewater Weather Flow Master Plan and accompanying 25- bypass” or a “sewage bypass.” Both combined year implementation plan in 2003. The goal of sewer overflows and sewage bypasses result in the Master Plan is to “reduce and ultimately elim- degraded water quality that can affect environ- inate the adverse impacts of wet weather flow.” mental and human health. Without upgrades

Environmental Protection Report 2015/2016: Volume 1 69 Table 2.3.2.1. The Number and Total Reported Volume of Bypass Events at Ashbridges Bay and Humber Wastewater Treatment Plants (Sources: Ashbridges Bay and Humber Wastewater Treatment Plant Annual Reports, 2010–2015, Toronto Water).

Ashbridges Bay Humber

Number of Bypass Total Reported Number of Bypass Total Reported Events Volume (m3) Events Volume (m3)

2015 13 2,811,214 11 387,944

2014 20 2,175,150 16 348,061

2013 10 2,074,320 28 2,081,851

2012 9 1,774,760 21 433,977

2011 15 4,650,406 48 1,138,334

2010 10 1,161,506 31 484,668

Reporting Sewage Bypasses of water quality issues during severe weather Operators of wastewater treatment plants must events, and completed its review in July 2015. notify the Ministry of the Environment and Cli- mate Change (MOECC) when a sewage bypass The ministry concluded that surface water qual- occurs, according to subsection 92(1) of the Envi- ity does decline following storms and that high ronmental Protection Act. However, the law does volumes of stormwater directed to wastewater not require water treatment plant operators or treatment plants can result in bypasses to the the MOECC to also alert the public of bypasses. receiving waterbody without any treatment, and the stormwater may be combined with treated In July 2014, two Ontarians with the charita- wastewater before being discharged. Regarding ble organization Lake Ontario Waterkeeper the 2013 storm in Toronto, the ministry con- submitted an application under the Environ- firmed that E. coli levels had risen in Lake On- mental Bill of Rights, 1993 asking the MOECC tario after the bypasses at the two water treat- to review and amend the approvals for the ment plants. As part of the review, the MOECC Ashbridges Bay and Humber wastewater treat- consulted with the Ministry of Health and Long- ment plants to require the operators to alert Term Care (MOHLTC), which is responsible for the public when combined sewer overflows or the Public Health Standard for Safe Water in- treatment plant bypasses pollute waterbodies. cluding the Recreational Water Quality proto- col; and the Ministry of Natural Resources and The applicants stated that people were swim- Forestry, which co-ordinates a flood forecasting ming and boating in Lake Ontario during the days and warning program. It also reviewed how or following the bypasses after the 2013 storm, un- if municipalities communicated overflow and/or knowingly putting their health at risk. They were bypass events to the public (several do via their successful with their application – the MOECC websites, but only weeks after the events occur). agreed to carry out a review of public reporting

70 Environmental Commissioner of Ontario Neither approval contains requirements for public notification of bypass events.

As a result of the review, the MOECC decided to ECO Comment consult with Toronto Public Health, Toronto Water, The success of this application demonstrates the the MOHLTC, Lake Ontario Waterkeeper and oth- power of the EBR right to request that the govern- er stakeholders to develop messaging about the ment review environmentally significant laws, reg- health risks of poor water quality, which will be ulations and policies. Because the applicants ex- communicated to the public following all storm ercised this right, the MOECC committed to taking events. The ministry stated it was continuing positive steps towards increasing public transpar- discussions with Toronto Water (the operator of ency about water quality in recreational waters, as the two treatment plants) on how it could report well as reducing public health risk due to sewage bypass events to the public in real-time, and bypasses and overflows. also stated it may amend the water treatment plants’ Environmental Compliance Approvals. However, it has been two years since the ministry began this review and the public is still not being Both plants’ Environmental Compliance Approv- notified of sewage bypasses. The MOECC should als were amended in July, 2016; however nei- work with Toronto Water to implement procedures ther approval contains requirements for pub- for public notification as soon as possible. The lic notification of bypass events – the City of applicants clearly demonstrated that without such EBR Applications Toronto is only required to report bypass events transparency and communication, public health to the MOECC. On August 13, 2016, there was will continue to be jeopardized by sewage bypass- another large storm. Toronto bypassed sewage es into lakes and rivers. into Lake Ontario but did not notify the public. The ECO recommends that the MOECC work with Toronto Water to implement procedures for public notification of sewage bypass events as soon as possible.

Environmental Protection Report 2015/2016: Volume 1 71 2.3.3 Government to In its initial letter to the applicants, the MOECC stated that it had reviewed current Give Public Access legislation and procedures related to spills to Spills Information and concluded that they were comprehensive through Open Data and consistent. The ministry informed the applicants that ministry officers “follow up Catalogue on every spill to confirm the spill has been cleaned up and the environment remediated,” The Ministry of the Environment and Cli- and that it has notification agreements with mate Change (MOECC) says it will make other levels of government regarding spills historical information on responses to and other environmental events. However, the spills in Ontario publicly available through MOECC did agree to undertake a further limit- Ontario’s Open Data Catalogue, thanks ed review of spills response focusing on pub- to an application for review on spills re- lic transparency and access to information. sponse submitted to the ECO in June 2015. The MOECC subsequently conducted a re- The applicants asked the MOECC to review view of spills reporting practices within the the need for a policy under the Environmental MOECC, other Ontario ministries and fed- Protection Act (EPA) to standardize spills re- eral and international agencies, and deter- sponses by municipalities. The applicants re- mined that the most effective way to pro- ferred specifically to a spill of unidentified oily vide public access to information on past liquid discovered in the Humber River on May spills was to post it on the Open Data Cat- 31, 2014, near Albion and Islington Roads in alogue website (ontario.ca/open-data) and Toronto. City departments including Toronto update it twice a year. The ministry also Fire, Water, and Works responded to the spill, stated that it is “pursuing a web-based sys- worked to contain it using booms and absor- tem for real time spills event reporting.” bent pads, and investigated to try to determine its source. The MOECC ultimately recorded the spill as 925 litres of petroleum-based liquid from an undetermined source, and stated that Spills may not be reported in a it did not anticipate an environmental impact. timely manner (or at all) to all relevant agencies. Overall the applicants were unsatisfied with the outcome of the response to the Humber River spill for a number of reasons, including a “lack of a coordinated response, lack ECO Comment The ECO is pleased that the MOECC has com- of evidence to support causality, [and a] lack mitted to providing historical spill event infor- of proof to negate future risks.” They argued mation through the government’s Open Data that spills responses may be inconsistent, Catalogue, which will make finding informa- and that public accountability for how munici- tion about spills much easier for the public. palities respond to spills is insufficient. They The potential for real-time reporting of spills were also concerned that spills may not be information online is promising – if such in- reported in a timely manner (or at all) to all formation was accessible to the applicants it relevant agencies, including conservation au- would have saved them time and frustration. thorities, municipalities, the Transportation The ECO encourages the MOECC to update Safety Board, and – in cases where a spill oc- the applicants and our office as these proj- curs in an area near pipelines – the Ontario or ects progress. National Energy Boards. The applicants sug- gested that the MOECC send out mass no- tifications of spills to relevant agencies, and create an online record of spill responses.

72 Environmental Commissioner of Ontario 2.3.4 Improving Well Two Decades of Concern about Wells Regulation Water Safety Much of Ontario’s current approach to regulating drinking water is a direct result of the Since the Walkerton tragedy in 2000, Ontario Commission of Inquiry into the 7 deaths and has significantly redesigned and enhanced the 2,300 cases of illness from the contamination legal regime that protects drinking water from of Walkerton’s municipal drinking water system source to tap, making the province’s drinking in May 2000. The Walkerton Commission’s final water among the best protected in the world. report included 93 recommendations for how However, concerns persist that gaps in regu- the provincial government could better ensure lating wells leave some Ontarians exposed to safe drinking water for all Ontarians, many of health and environmental risks. Almost one-third which targeted municipal drinking water sup- of Ontarians – roughly four million people – rely plies, including those that draw groundwater. on municipal and private wells for their drinking The Commission also made recommenda- water. Moreover, wells that are not properly con- tions specific to private drinking water systems structed, maintained and decommissioned can (namely, privately owned wells), encouraging also introduce contaminants into groundwater. the provincial government to: maintain a licensing system for well drillers; ensure that micro- The Canadian Environmental Law Association biological testing is available; and distribute in- (CELA) has been a particularly vocal critic of the formation about water safety to system owners. province’s wells regulations. CELA represent- ed a key party in the Walkerton Inquiry (more Today, the OWRA regulates most aspects of on this below) and submitted an application constructing, using and abandoning wells. for review in 2003 relating to the regulation The Wells regulation made under the OWRA, of wells. In January 2014, two representatives sets out permit requirements for wells and of CELA submitted a second wells-related ap- well construction, and licensing requirements plication for review to the ECO asking the Min- for those who work on wells. For example, it istry of the Environment and Climate Change sets out minimum standards or requirements (MOECC) to review the Ontario Water Resourc- for constructing, operating, reporting on and es Act (OWRA) and Regulation 903 (Wells), abandoning wells, such as basic material and made under the OWRA (the “Wells regulation”). design standards. Although the province states that it has fully implemented all of the Walk- EBR Applications

Environmental Protection Report 2015/2016: Volume 1 73 Drinking Water Regulation in Ontario

Several pieces of legislation protect Ontario’s water supply and govern the construction and use of drinking water systems; they include the following:

The Clean Water Act, 2006 creates a source protection planning program that establishes local policies to manage significant drinking water threats (for example, the storage or application of road salt, pesticides or fuel near drinking water intakes or wellheads). (For more on the Clean Water Act, 2006 see Part 4.2 in the ECO’s 2010/2011 Annual Report.)

The Ontario Water Resources Act is intended to ensure the conservation, protection and management of Ontario waters. In addition to prohibiting the discharge of polluting materials into or near waters, the act also deals with many technical water management details; for example, it governs the approval, construction and operation of “water works” and establishes a framework for issuing permits to take large volumes of water.

The Safe Drinking Water Act, 2002 sets mandatory drinking water standards and baseline requirements for operators and testing labs. It also governs the licensing of municipal residential drinking water systems. (For more on the Safe Drinking Water Act, 2002 see pages 80-85 in the ECO’s 2002/2003 Annual Report.)

erton Commission’s recommendations, and several valid issues, and echoed their concerns despite the many improvements that have about disinfection standards, clarity of design been made to Wells regulation since 2000, requirements and enforcement capabilities. concerns still remain as discussed below. (To read the full ECO application for review summary, see pages 223-233 of the Supple- 2003 Amendments to the Wells Regulation ment to the ECO’s 2003/2004 Annual Report.) In 2003, shortly after the release of the Walk- erton Commission’s final report, the MOECC Concerns Persist in 2005 made a number of amendments to the Wells In June 2005, Ontario’s Advisory Council on regulation. These amendments introduced Drinking Water Quality and Testing Standards a tagging system to track wells, a new disin- concluded that the Wells regulation’s disinfec- fection standard and stricter requirements re- tion requirement was deficient in a number of lating to installation and abandonment. In the ways, and made several recommendations ECO’s 2003/2004 Annual Report, we acknowl- for how the ministry could improve it. Three edged that these changes were an improve- months later, CELA publicly complained that ment, but recommended that the MOECC en- the MOECC had failed to take any action in sure that the regulations’ key provisions were response to the Advisory Council’s letter. In clear and enforceable, and that the ministry November 2005, the MOECC committed to un- provide a plain language guide to the regula- dertake technical amendments to the Wells reg- tion for well installers and other practitioners. ulation. However, in fall 2006, the ECO noted in our 2005/2006 Annual Report that the minis- Also in 2003, two representatives of CELA sub- try still had not acted on the Advisory Council’s mitted an EBR application for review express- recommendations, and reiterated our concerns ing dissatisfaction with the new provisions about inadequate disinfection requirements. (particularly the disinfection requirements) and requesting a full review of the regulation. The 2007 Amendments to the Wells Regulation MOECC denied the application because it be- In 2007, the MOECC introduced another round of lieved the regulation was sufficiently protective amendments to the Wells regulation, which re- of the environment and human health. However, sponded to some of the ECO’s recommendations the ECO noted in its review of the handling of regarding the 2003 amendments. Numerous the application that the applicants had raised substantive changes included new disinfection requirements, as well as the creation of a new

74 Environmental Commissioner of Ontario class of well technician licence, new exemptions Remaining Barriers to Well Water Safety for certain wells and low-risk construction activi- In their 2014 application for review, the CELA ties, and expanded well abandonment provisions. representatives state that the “current legislative and regulatory framework regarding Ontar- Although these amendments were widely recog- io wells is incomplete, outdated and inadequate nized as a step in the right direction, CELA, along to protect the environment and public health with many others who commented on the regula- and safety.” The applicants identify many de- tory proposal notice, were dissatisfied with many tailed and specific issues, most of which centre of the changes and expressed continued concern on concerns that regulatory deficiencies remain about the interpretation and application of the reg- and that there are inconsistencies between legal ulation. These issues were not fully addressed in requirements and best management practices. the final version of the amended regulation. In our 2007/2008 Annual Report, the ECO worried that For example, the applicants express concern the wells regulatory regime was becoming unwieldy about a number of issues they perceive including: and unworkable and that, without additional fund- unclear or non-existent definitions; inappropriate ing for wells and groundwater programs, the MOECC exemptions; and inadequate technical, reporting would be unable to properly enforce the regulation. and abandonment requirements, including those relating to the disinfection of wells. The applicants are also concerned about the non-legal nature of the water supply wells manual and the test holes/ dewatering wells manual (finalized after the appli- ...unclear or non-existent definitions; cation was submitted). Although these documents together set out hundreds of best management inappropriate exemptions; and practices they are not legally mandated under the inadequate technical, reporting and Wells regulation and are thus not enforceable. The abandonment requirements... applicants argue that the essential elements of best management practices should be incorporated into the standards set out in the Wells regulation.

What You Can Do

Although both municipal and private wells can be susceptible to contamination, those who rely on private wells are most at risk because they do not benefit from the extensive monitoring and testing that occurs for municipal water supplies. To help ensure that your well water is safe, you should:

• Regularly test your water at a professional lab; Make sure you properly maintain your well;

• EBR Applications • When doing repair work, use licensed well technicians who follow the MOECC’s best management practices; and • Properly decommission wells you are no longer using.

For more information on well safety, visit ontario.ca/page/wells-your-property.

Environmental Protection Report 2015/2016: Volume 1 75 The MOECC’s Ongoing Review The ECO received the application on January 2.4 Ministries’ 2, 2014 and forwarded it to the MOECC lat- Handling of Applications er that same day. The MOECC acknowledged receipt of the application on January 6, 2014 for Investigation in and advised the applicants that it would make the decision whether or not to undertake the 2015/2016 review by March 7, 2014 (i.e., within 60 days). By law, under section 70 of the Environmental The Environmental Bill of Rights, 1993 (EBR) Bill of Rights, 1993 ministries must make a provides Ontarians with the right to ask a min- decision whether or not to conduct a review istry to investigate alleged contraventions of within 60 days of receiving the application. prescribed acts, regulations or instruments (e.g., permits, approvals, licences, etc.) The MOECC wrote the applicants in both through an “application for investigation.” March and May 2014 to tell them it need- During the ECO’s 2015/2016 reporting year ed more time to decide whether or not to (April 1, 2015 – March 31, 2016), the ECO undertake the application. The Environ- received five applications for investigation (the mental Bill of Rights, 1993 does not per- ECO received four applications, but counts ap- mit ministries to take additional time to plications that go to more than one ministry consider an application beyond the 60-day as separate applications). The ECO sent four deadline, as the MOECC did in this case. applications to the Ministry of the Environ- On December 5, 2014 – over nine months after ment and Climate Change (MOECC) and one the statutory deadline – the MOECC advised application to the Ministry of Natural Resourc- the applicants that the ministry would be un- es and Forestry (MNRF) for consideration. This dertaking the review, but did not provide an es- year’s requests for investigation dealt with con- timated timeline for the review’s completion. cerns about noise, dust, emissions and water drains. The MNRF determined that an inves- In June 2016, the MOECC posted a Status tigation was not warranted in the case of the Report on the Environmental Registry that one application that it received. The MOECC included updates on all of its current appli- denied one of the requests for investigation, cations, including this one. The ministry re- but agreed to undertake investigations in reported that it sponse to the remaining three applications. had completed ...over nine months after the statutory its initial “tech- The MOECC completed two investigations in deadline — the MOECC advised the nical assess- this reporting year; one was submitted in a applicants... ment” of the previous reporting years and the other was issues under submitted in this reporting year. In addition, review, which two investigations that the MOECC agreed to included assessing comments received from undertake remained ongoing by the end of our key stakeholders, and undertaking a scientific reporting year. and jurisdictional scan. The MOECC reported that it was now consulting with other ministries For more details on these applications for re- and would be receiving and considering their view, see Table 2.4.1, the subsections below, input before finalizing the review by fall 2016. and our website (eco.on.ca).

76 Environmental Commissioner of Ontario Table 2.4.1. Applications for Investigation in the 2015/2016 Reporting Year at a Glance (Concluded and Ongoing).

Investigation Reporting Year Ministry Undertaken or Status in Investigation Topic Number Submitted Responsible Denied? 2015/2016 *

Illegal waste disposal on a I2014006 2014/2015 MOECC Undertaken Concluded farm

Noise from an Eganville I2015001 2015/2016 MOECC Undertaken Ongoing quarry

Dust and noise from Ingram I2015002 2015/2016 MOECC Undertaken Ongoing Asphalt

Altering a wetland in the I2015003 2015/2016 MOECC Undertaken Concluded Niagara region

Altering a wetland in the I2015004 2015/2016 MNRF Denied Concluded Niagara region

Emissions from Tobler’s I2015005 2015/2016 MOECC Denied Concluded Woodland

* Concluded refers to: applications submitted and denied in the 2015/2016 reporting year; or applications submitted in either this reporting year or a previous reporting year, undertaken, and concluded in 2015/2016. Ongoing refers to: applications submitted and undertaken in the 2015/2016 reporting year (but not concluded); or applications submitted in previous reporting years and have not been completed in 2015/2016.

Applications for Investigation Denied in Emissions from Tobler’s Woodland 2015/2016 In March 2016, applicants alleged that This subsection summarizes applications that a neighbour’s wood framing business the ministry denied at the preliminary stage caused diesel fumes, wood smoke and in our 2015/2016 reporting year. The MOECC sandblasting particles to blow onto

and the MNRF decided that an investigation the applicants’ property and into their EBR Applications was not warranted for two applications that home. The applicants claimed that were submitted to the ECO in 2015/2016. the fumes and particulate matter were The reason the ministries gave for declining causing an adverse effect, contrary to to undertake these requested investigations section 14 of the Environmental Protec- is that it would duplicate ongoing or complet- tion Act (EPA). In May 2016, the MOECC ed investigations. In both of these cases, the advised the applicants that an investi- ECO agreed that the applicants raised some gation was not warranted because the valid concerns, but agreed with the ministries’ issues raised by the applicants related conclusions that reviews were not warranted to local municipal by-laws, and it would at this time based on the requirements of the be duplicative of inspections and en- EBR. These applications are summarized below. gagement previously undertaken by the MOECC and the local fire department.

Environmental Protection Report 2015/2016: Volume 1 77 Illegal Waste Disposal on a Farm In March 2015, applicants alleged that in 1995 a large quantity of fibreglass waste was deposited in a gravel pit on a farm that was not approved as a waste disposal site, in contravention of the EPA. In addition, that the owner of the property never removed the material despite being issued a Field Order (now called a Provincial Officer’s Order) in 1995 to do so. In May 2015, the MOECC determined that it would Altering a Wetland in the Niagara conduct an investigation of the alleged contraventions. In August 2015, the Region MOECC notified the applicants that it In November 2015, applicants alleged concluded its investigation and found that neighbouring property owners are that while adverse impacts to the en- draining and polluting a provincially vironment are unlikely, it will conduct significant wetland on their property. further scientific review of evidence They alleged that neighbours under- and evaluate whether grounds exist took these drainage works without for further action. Also, as a result of proper consent, permits, approvals, the investigation the MOECC issued a assessments and/or studies and have Provincial Officer’s Order to the owner violated the following: O. Reg. 155/06 to ensure that any prospective buyer is under the Conservation Authorities Act made aware of the presence of buried (CA Act); the EPA; the Ontario Water waste fibreglass at the site. For more Resources Act (OWRA); the Endan- information on this investigation, see gered Species Act, 2007 (ESA); and Chapter 2.4.1 of this report. the Pesticides Act. In February 2016

the MNRF advised the applicants that an investigation was unwarranted. The Altering a Wetland in the Niagara ministry stated that an investigation of Region the alleged contraventions of O. Reg. In November 2015, applicants alleged 155/06 under the CA Act and the ESA that neighbouring property owners prohibitions would duplicate an ongo- were draining and polluting a provin- ing or completed investigation. Howev- cially significant wetland on their proper, the MOECC agreed to undertake an erty. They alleged that neighbours un- investigation of this application (see dertook these drainage works without Altering a Wetland in the Niagara Re- proper consent, permits, approvals, gion, R2015003, below). assessments and/or studies and have violated the following: O. Reg. 155/06 under the CA Act; the EPA; the OWRA; Investigations Completed in the ESA; and the Pesticides Act. In Feb- 2015/2016 ruary 2016, the MOECC notified the In this reporting year, the MOECC completed applicants that it undertook an inves- two investigations in response to EBR appli- tigation of the alleged contraventions cations submitted by members of the public. of the EPA, OWRA and Pesticides Act. While the MOECC decided not to take any ad- The ministry stated that it conducted ditional action as a result of one investigation, two site visits to observe water quan- it issued a Provincial Officer’s Order and com- tity and quality and gather information mitted to conduct further scientific review of about local farminig practices but it did evidence and evaluate whether grounds exist not find any violations of those acts. for further action for the other investigation. The MNRF denied this application (see These applications are summarized below. Altering a Wetland in the Niagara Re- gion, R2015004, above).

78 Environmental Commissioner of Ontario Ongoing Investigations in 2015/2016 2.4.1 Decades-old This subsection summarizes applications that are “ongoing” by the end of our 2015/2016 Non-Compliance on reporting year, meaning applications submit- Illegal Dump Investigated ted and undertaken in the 2015/2016 reporting year, but not concluded. By the end of by the MOECC the ECO’s 2015/2016 reporting year, there were two ongoing investigations and the This section highlights one example of a suc- MOECC is responsible for both of these inves- cessful application for investigation, which tigations. The ongoing investigations include: the Ministry of the Environment and Climate Change (MOECC) undertook this reporting year. Noise from Eganville Quarry In September 2015, applicants requested In Ontario, waste materials must be depos- an investigation of rock breaking opera- ited at a licensed waste disposal facility, in tions and the use of heavy construction accordance with the Environmental Protection equipment in a nearby quarry, which they Act (EPA). Materials disposed of at unregulat- alleged were generating excessive noise. ed sites can potentially lead to serious envi- The applicants claimed the noise was ronmental harms, such as groundwater and causing an adverse effect and was neg- soil contamination. atively impacting their enjoyment of their property, contravening the EPA. In October In March of 2015, two Ontario residents sub- 2015, the MOECC informed the applicants mitted an application for investigation regard- that an investigation was warranted. The ing a Guelph-area farm, where up to 100,000 investigation is ongoing, but the MOECC tonnes of waste fibreglass had been illegally anticipates that it will be completed by buried in a gravel pit more than 20 years ago. June 30, 2017. The applicants stated that they found it hard to understand how the owners – Cox Farms Dust and Noise from Ingram Asphalt Ltd. (“Cox Farms”) – are being allowed to benefit from the continued commercial use In September 2015, applicants alleged of this property, given that they remain in that dust, noise, vibration, odour and non-compliance with a long-standing MOECC smoke emissions from Ingram Asphalt’s Order requiring them to clean up the site. Fur- asphalt plant is adversely affecting their thermore, they stated, Cox Farms has recently health, business and quality of life, and arranged to lease the property to a compa- that the operator was contravening section ny who has applied to expand the gravel pit. 14 of the EPA. The company operates under an air approval that the MOECC issued The applicants argued that the buried fibre- in 1999, but the ministry is in the process glass presents a significant environmental of reviewing the operations in order to risk because it is laced with chemicals and is issue an updated and amended Environ- close to the Speed River. They stated that the mental Compliance Approval. In December

proposed gravel pit expansion should be de- EBR Applications 2015, the MOECC advised the applicants nied until the waste is removed, or, alternative- that an investigation was warranted. The ly, that new revenue from the expansion should investigation is ongoing but the MOECC go to pay for removal and disposal of the waste. anticipates that the investigation would be completed by November 30, 2016.

Environmental Protection Report 2015/2016: Volume 1 79 Background company, which is now seeking to expand the The material in question is off-spec (i.e., below aggregate operations. The MOECC reports that acceptable standards) fibreglass generated in the fibreglass is not a factor in the expansion the early 1990s by Owens Corning in Guelph. application process because it is buried in an A company named Wil-Manufacturing accepted area covered by the original licence. In addition, the waste from Owens in the early 1990s, on the according to the MOECC, CBM is not the legal latter’s understanding that it would be recycled. property owner and thus has no responsibility This never happened, however, and Wil-Manu- for the waste’s removal. facturing arranged to dispose of the material in an aggregate The MOECC’s Decision pit located on Cox In response to the application, the ministry ex- The ministry subsequently laid charges. Farms’ property. plained that it had done everything that it could When the MOECC to force Cox Farms to remove the material, in- became aware of cluding issuing Orders, laying charges, prose- this situation in 1995, it issued Field Orders to cuting the company, and levying fines. Its own both Wil-Manufacturing and Cox Farms requiring legal counsel and enforcement staff have con- the material’s removal and proper disposal at firmed that the ministry lacks the legal grounds an approved site. The Orders were appealed by to pursue the matter further. Wil-Manufacturing, but not by Cox Farms. The Appeal Board upheld the Orders in 1996, but Nevertheless, the ministry stated that it rec- noted in its decision that the material likely ognized the applicants’ concern over both the posed little or no risk to the environment. leasing of the land for expanded aggregate extraction and the potential environmental im- In 1997, Cox Farms removed all above-ground pacts of the buried fibreglass. Accordingly, the fibreglass, leaving the buried material in place. ministry issued Cox Farms a new Provincial Offi- The ministry subsequently laid charges for cer’s Order in May 2015, requiring the company failing to comply with the Orders and between to register the new Order on title to the proper- 1997 and 1998 both parties were either con- ty, to give any person with interest in the proper- victed or pled guilty and both were fined. Cox ty a copy of the Order prior to any dealings, and Farms paid its fine, but Wil-Manufacturing went to inform the local MOECC office in advance of bankrupt and its fine remains outstanding. any plans to disturb the waste. (In June 2015, During the prosecution for failing to comply with Cox Farms appealed this Order, but the Environ- the Orders, the MOECC asked the court to is- mental Review Tribunal dismissed the appeal; sue a Court Order under section 190 of the En- in August 2015, Cox Farms notified the ministry vironmental Protection Act requiring removal of that it would comply with the Order.) the material, but according to the MOECC, the Court found this request to be excessive. In addition, the MOECC sent its surface-water technical experts to visit the site to investigate In 2006, Cox Farms transferred its aggregate whether there was cause for environmental con- licence to St. Mary’s Cement/Canadian Build- cern. They found no evidence of disturbance ing Materials (CBM) and leased the site to this and no visual evidence of adverse effects.

80 Environmental Commissioner of Ontario Furthermore, ministry consultation with the Given the legal constraints involved, the ECO company that originally produced the fibreglass finds the ministry’s decisions in this investiga- confirmed, based on company knowledge and tion to be both thoughtful and practical. The experience, that the material poses little risk to new Order’s requirement of full disclosure to the environment. Accordingly, the ministry de- potential buyers of the property deals with, to termined that off-site impacts are unlikely. The the highest degree possible, the owner’s ongo- MOECC also decided, however, that a scientific ing refusal to take responsibility for the improp- review of evidence related to buried waste fi- er disposal of these materials. This disclosure breglass and its potential for environmental im- may make it more difficult to sell the property, pairment over time is in the public interest. The or may even reduce its market value. At the very MOECC promised to undertake this review and least, it will ensure any potential new owner is to update the applicants on the findings. made aware of the buried waste onsite. The second requirement in the Order – that the min- In July 2016, the MOECC notified both the appli- istry be notified prior to any disturbance of the cants and Cox Farms that the scientific review waste – combined with the recommendation had been completed. The review’s findings were of the subsequent review that the material be that “potential contaminants in the waste have kept properly covered, show that the ministry is little potential to adversely impact the environ- doing what is within its power to address any ment,” and, accordingly, no further investigation lingering environmental concerns. of the site is warranted. The review also recommended that the waste be kept under proper cover to minimize the possibility of airborne release of fibreglass. The MOECC’s letter to Cox Farms indicated that the local district office would follow-up with the company “to discuss timelines for completion” of the recommended action.

ECO Comment The ECO commends the MOECC for taking on this investigation. The ministry wisely used the application as an opportunity to further its long- term efforts to bring this situation to a more satisfactory conclusion.

The ECO also recognizes the unusual difficulties faced by the ministry in this troubling case. Cox Farms paid its fines but never fully acted

on the Field Order (they did remove the above- EBR Applications grade material); however, the inability to obtain a Court Order and the lack of evidence of adverse effects caused by the fibreglass left the ministry without the necessary legal tools to pursue the issue further.

Environmental Protection Report 2015/2016: Volume 1 81 CHAPTER 3 USE OF THE EBR’S LEGAL TOOLS

3.0 Introduction 83

3.1 Appeals of Prescribed Instruments 83

3.1.1 Improving Environmental Protection at the Richmond Landfill: Successful Use of EBR Third Party Appeal Rights 90

3.1.2 Public Appeals of Renewable Energy Approvals 91

3.2 Lawsuits and Whistleblower Protection 93

82 Environmental Commissioner Of Ontario 3.0 Introduction

The Environmental Bill of Rights, 1993 (EBR) provides Ontarians with several legal tools that enable them to better enforce and protect their environmental rights, including:

• third party appeal rights; • the right to sue for public nuisance and for harm to a public resource; and • protection from employer reprisals (known as “whistleblower protection”).

In this chapter, we describe these legal tools and provide an update on how they were used during the ECO’s 2015/2016 reporting year.

instrument for which they applied or that was 3.1 Appeals of issued to them. These are called “instrument Prescribed Instruments holder appeals.” If an instrument holder appeal relates to an instrument classified in O. Reg. The Environmental Bill of Rights, 1993 (EBR) 681/94 under the EBR, the public has a right provides Ontarians with the right to appeal to receive notice of that appeal. Accordingly, (i.e., challenge) government decisions about the ECO posts notice of instrument holder certain classified “instruments” (e.g., a permit, appeals on the Environmental Registry; the licence or approval). This section provides an ECO also posts notices on the Environmental overview of appeals of classified instruments Registry of the final dispositions of these that were initiated or decided during the ECO’s appeals (i.e., whether the appeal was allowed, Use of the EBR ’s Legal Tools 2015/2016 reporting year. denied or withdrawn).

During the 2015/2016 reporting year, the ECO Instrument Holder Appeals posted eight new instrument holder notices of Many Ontario statutes provide individuals and appeal on the Registry and six decision notices companies with a right to appeal government for appeals initiated in earlier reporting years decisions that directly affect them, such (see Table 3.1.1). as a decision to deny, amend or revoke an

Environmental Protection Report 2015/2016: Volume 1 83 Table 3.1.1. Instrument Holder Appeals of EBR-Prescribed Instruments Initiated or Decided in the ECO’s 2015/2016 Reporting Year.

Date Appeal Instrument Holder Instrument Registry # Outcome Received Nortel Networks Limited/ Settlement Corporation Nortel Director’s Order 011-4072 09/19/2011 agreement Networks Limitee

Environmental Compliance Trillium Recovery Inc. 011-6141 01/04/2013 Withdrawn Approval (Waste)

ML Ready Mix Concrete Environmental Compliance 011-7505 10/04/2013 Appeal denied Inc. Approval (Air)

Environmental Compliance 2157536 Ontario Inc. 011-7964 02/28/2014 Withdrawn Approval (Air)

Sault Ste. Marie North Settlement Approval of an Official Plan 012-0980 09/15/2014 Planning Board agreement

Environmental Compliance 1336518 Ontario Limited 011-5286 09/29/2014 Withdrawn Approval (Air)

Township of East Not decided as Approval of an Official Plan 011-1765 04/20/2015 Garafraxa of 03/31/2016

Not decided as Township of Melancthon Approval of an Official Plan 012-2866 05/01/2015 of 03/31/2016

Environmental Compliance Not decided as Kimco Steel Sales Limited 012-1493 08/06/2015 Approval (Waste) of 03/31/2016

Not decided as 835267 Ontario Inc. Director’s Order 012-3873 09/16/2015 of 03/31/2016

Settlement Trillium Recovery Inc. Director’s Order 012-4877 10/28/2015 agreement

Renewable Energy Approval Horizon Wind Inc. 011-8937 11/13/2015 Withdrawn (Wind)

Keswick Presbyterian Not decided as Director’s Order 012-2643 12/04/2015 Church of 03/31/2016

Township of Tarbutt and Not decided as Approval of an Official Plan 012-4224 12/30/2015 Tarbutt Additional of 03/31/2016

84 Environmental Commissioner Of Ontario Many Ontario statutes provide individuals and companies with a right to appeal government decisions.

Third Party Appeals they meet this preliminary threshold, then the The EBR broadens the basic appeal rights applicant must satisfy the more onerous, two- held by instrument holders under other laws by part test for leave to appeal set out in section allowing members of the general public (“third 41 of the EBR by successfully demonstrating parties”) to apply for “leave” (i.e., permission) that: to appeal ministry decisions about instruments classified in O. Reg. 681/94 under the EBR. 1. there is good reason to believe that no These are called “third party appeals.” Ontario reasonable person, having regard to the residents who wish to seek leave to appeal a relevant law and to any government policies decision must apply to the proper appellate developed to guide decisions of that kind, body – usually the Environmental Review could have made the decision; and Tribunal or the Ontario Municipal Board – within 2. the decision could result in significant harm 15 days of the instrument decision notice being to the environment. posted on the Environmental Registry. If a third party is granted leave, they may Like instrument holder appeals, the public has then proceed to file their appeal of the a right to receive notice of third party leave decision, which will be heard and decided by to appeal applications. Accordingly, the ECO the appellate body. During the 2015/2016 posts notices of third party leave to appeal reporting period, members of the public sought applications and of the final dispositions of leave to appeal four instrument decisions. The these appeals on the Environmental Registry. ECO also received notice of three decisions for applications initiated in an earlier reporting year To be granted leave to appeal, applicants must (see Table 3.1.2) – the appellants in all three first establish that they have an interest in of these appeals were successful in part. For the decision at issue. This is generally a low details on one of these decisions see Chapter threshold to meet; for example, the applicant 3.1.1 – Improving Environmental Protection at may live near the facility that holds the the Richmond Landfill: Successful Use of EBR

instrument or may have commented on the Third Party Appeal Rights. Use of the EBR ’s Legal Tools original proposal to issue the instrument. If

Environmental Protection Report 2015/2016: Volume 1 85 Table 3.1.2. Third Party Applications for Leave to Appeal (LTA) Initiated or Decided Under the EBR in the ECO’s 2015/2016 Reporting Year.

Date LTA Instrument Instrument Registry # LTA Applicants Application Outcome Holder Received Concerned Leave to ap- Waste Manage- Citizens Environmental Compliance peal granted; ment of Canada 011-0671 Committee of 01/30/2012 Approval (Waste) appeal allowed Corporation Tyendinaga in part* and Environs Leave to ap- atPlay Adven- Environmental Compliance Claudia Unter- peal granted; 011-8044 03/06/2014 tures Inc. Approval (Sewage) stab appeal allowed in part Leave to ap- Citizens C.H. Demill peal granted; Permit to Take Water 012-0410 Against Mel- 07/18/2014 Holdings Inc. appeal allowed rose Quarry in part

1684567 Environmental Compliance Jeffery Leave to ap- 012-1610 08/28/2015 Ontario Inc. Approval (Waste) Levesque peal denied

Sharp Lake Miller Paving Environmental Compliance Leave to ap- 012-3991 Area Residents 09/25/2015 Limited Approval (Air) peal denied Association Leave to County appeal grant- CRH Canada of Brant; ed in part; Permit to Take Water 011-8609 11/13/2015 Group Inc. Concerned Citi- appeal not zens of Brant decided as of 03/31/2016 Leave to County appeal grant- CRH Canada Environmental Compliance of Brant; ed in part; 012-4127 11/13/2015 Group Inc. Approval (Sewage) Concerned Citi- appeal not zens of Brant decided as of 03/31/2016

* This appeal was resolved through two decisions issued by the Environmental Review Tribunal on December 24, 2016, and April 14, 2016.

86 Environmental Commissioner Of Ontario Direct Right of Appeal by Third Parties Notices of third party appeals of REAs are also There is a separate set of rules for third party posted on the Environmental Registry. appeals of Renewable Energy Approvals (REAs) issued under the Environmental Protection Act Similarly, the Planning Act also provides a direct (EPA) for solar, wind or bioenergy projects (see right of appeal for third parties, which is broader Chapter 3.1.2 – Public Appeals of Renewable than the third party rights under the EBR. Energy Approvals). Under the EPA, residents Therefore, third party appeals of prescribed of Ontario have an automatic right to appeal a Planning Act instrument decisions are usually ministry decision about a REA, meaning they made under the Planning Act rather than the do not have to seek leave from the appellate EBR. Notices of such appeals are still posted body. Unlike third party appeals under the EBR, on the Environmental Registry. however, a REA appeal is only permitted on the grounds that engaging in the renewable energy During the ECO’s 2015/2016 reporting project in accordance with the REA will either: period, members of the public appealed nine wind energy REAs under the EPA and two 1. cause serious harm to human health; or instruments under the Planning Act (see Table 2. cause serious and irreversible harm to plant 3.1.3). The ECO also posted decision notices life, animal life or the natural environment. for eleven appeals that were initiated in an earlier reporting year. Use of the EBR ’s Legal Tools

Environmental Protection Report 2015/2016: Volume 1 87 Table 3.1.3. Direct Third Party Appeals of EBR-Prescribed Instruments Initiated or Decided in the ECO’s 2015/2016 Reporting Year.

Instrument Date Appeal Instrument Registry # Appellant(s) Outcome Holder Received

Approval of Settlement City of Belleville IF01E50017 Leo Craig; CN Rail 02/22/2002 an Official Plan agreement

Regional Approval of an James Dick Con- Appeal allowed Municipality Official Plan 011-0328 06/18/2012 struction Limited in part of Peel Amendment City of Approval of Brantford; Hopewell County of Brant 011-1770 09/04/2012 Appeal allowed an Official Plan Developments (On- tario) Inc. Regional Approval of an Robert List and Municipality of Official Plan 011-8845 10/28/2013 Closed Marie Poirier Muskoka Amendment 8437084 Canada Inc. operating as Renewable Energy William Irvin; Scott 012-0611 09/04/2014 Appeal dismissed Port Ryerse Wind Approval (Wind) Biddle Farm Limited Partnership Kimberly and Rich- Suncor Energy Renewable Energy ard Bryce; Corpora- 012-0630 09/05/2014 Appeal dismissed Products Inc. Approval (Wind) tion of the County of Lambton

Niagara Region Renewable Energy Mothers Against 012-0613 11/24/2014 Appeal dismissed Wind Corporation Approval (Wind) Wind Turbines Inc.

Clarington Wind Municipality of Power (GP) Inc. Renewable Energy Settlement 012-0615 Clarington; Donald 12/22/2014 o/a Clarington Approval (Wind) agreement Katsumi Wind Power LP Municipality of Clar- Ganaraska Nomi- Renewable Energy Withdrawn; Ap- 012-0793 ington; Clarington 02/13/2015 nee Ltd. Approval (Wind) peal dismissed Wind Concerns Inc.

Grey Highlands Renewable Energy Douglas Edward Nominee (No. 1) 012-0683 02/17/2015 Appeal dismissed Approval (Wind) Dingeldein Ltd.

Approval of Freedent City of Toronto 012-2651 03/31/2015 Closed an Official Plan Sheppard

88 Environmental Commissioner Of Ontario Table 3.1.3. Direct Third Party Appeals of EBR-Prescribed Instruments Initiated or Decided in the ECO’s 2015/2016 Reporting Year.

Instrument Date Appeal Instrument Registry # Appellant(s) Outcome Holder Received Grey Highlands Clean Energy Renewable Energy 012-0792 Gary Fohr 04/17/2015 Appeal dismissed Limited Partner- Approval (Wind) ship

Gunn’s Hill Wind- Renewable Energy East Oxford Commu- 012-1069 04/24/2015 Appeal dismissed farm Inc. Approval (Wind) nity Alliance Inc.

County of Duf- Valley Grove Invest- Not decided as of Official Plan Approval 012-2871 05/04/2015 ferin ments Inc. et al. 03/31/2016

Settlers Landing Renewable Energy SLWP Opposition Not decided as of 012-2374 05/22/2015 Nominee Ltd. Approval (Wind) Corp. 03/31/2016

Meyer Wind Power (GP) Inc. Renewable Energy Patti Hutton and Wil- Settlement agree- 012-0569 06/08/2015 o/a Meyer Wind Approval (Wind) liam Ernest Young ment Power LP

Snowy Ridge Renewable Energy 012-2430 SR Opposition Corp. 07/03/2015 Appeal dismissed Nominee Ltd. Approval (Wind)

Forest Glade East Approval of Municipality of Developments Ltd. Not decided as of an Official Plan 012-1029 07/16/2015 Chatham-Kent And Kringa Incorpo- 03/31/2016 Amendment rated Majestic Wind Power (GP) Inc. Renewable Energy Patti Hutton and Wil- Settlement 012-0570 07/27/2015 o/a Majestic Approval (Wind) liam Ernest Young agreement Wind Power LP John Hirsch; Alliance to Protect wpd White Pines Renewable Energy Prince Edward Coun- Not decided as of Wind Incorpo- 012-1279 07/30/2015 Approval (Wind) ty and the Price Ed- 03/31/2016 rated ward County South

Shore Conservancy Use of the EBR ’s Legal Tools Association for the Renewable Energy Not decided as of Windlectric Inc. 012-0774 Protection of Am- 09/08/2015 Approval (Wind) 03/31/2016 herst Island

wpd Fairview Renewable Energy Not decided as of Wind Incorpo- 012-0614 John Wiggins et al. 03/01/2016 Approval (Wind) 03/31/2016 rated

Environmental Protection Report 2015/2016: Volume 1 89 3.1.1 Improving steps towards closing the landfill. In 2010, the MOECC amended the landfill’s approval, Environmental Protection requiring the site owner to stop accepting at the Richmond Landfill: waste and put a cap on the site. The MOECC also required the proponent to submit several Successful Use of EBR reports as part of the site’s closure plan, Third Party Appeal Rights including an environmental monitoring plan and contingency plans for leachate collection, landfill gas collection, and groundwater and surface The Richmond Landfill in the Town of water impacts. In January 2012, the MOECC Greater Napanee has been a long-standing further amended the approval to incorporate environmental concern to local residents. the monitoring and contingency plans and Located on thin soils and associated reports (see Environmental Registry highly fractured bedrock, #011-0671). The site does not meet modern the Richmond Landfill site standards for managing leachate. was established in 1954, Shortly after the MOECC approved this before landfills required amendment, the Concerned Citizens Committee government approval of Tyendinaga and Environs filed an application under the Environmental Protection Act (EPA). for leave to appeal the ministry’s decision, The site does not meet modern standards for under the EBR. The appellant challenged the managing leachate (the liquid that drains out adequacy of the conditions in the approval from landfill waste) – presenting substantial related to monitoring for contamination in risks of groundwater contamination. This is of surface and groundwater, reporting and particular concern because local residents, notification obligations for such monitoring, and farmers and businesses rely on groundwater contingency planning. for their drinking water.

After winning leave to appeal in March 2012, In the 1990s, the site owner initiated an the appellant progressed through the appeal application to expand the footprint, capacity process over the next four years, along with two and lifespan of the landfill. Ultimately, the added parties (Mohawks of the Bay of Quinte MOECC refused the application under the and Napanee Green Lights). Following several Environmental Assessment Act in 2006. Then, in motions, the settlement of various portions of 2007, the ministry amended the site’s approval the appeal, and a hearing lasting several weeks, to require the submission of a closure plan – the Environmental Review Tribunal released but did not set a specific date for the actual decisions allowing (i.e., granting) the appeal in closure of the landfill. part in December 2015 and April 2016. In 2008, three groups filed an application for The Tribunal found that there was evidence of review under the Environmental Bill of Rights, leachate-contaminated groundwater in certain 1993 (EBR), requesting that the site owner areas adjacent to the landfill, causing the stop accepting waste, implement closure contamination of a number of domestic wells. requirements, and implement a monitoring and The Tribunal also noted that “there continues to reporting program to assess and track issues be a significant degree of uncertainty regarding related to leachate from the the hydrogeological conditions at the Site and landfill. After the MOECC the extent of contamination from the Landfill.” The Tribunal found that there was denied the application, the As a result, the Tribunal held that additional ECO recommended the evidence of leachate-contaminated investigations are needed, and required that immediate closure of the groundwater in certain areas amendments be made to the approval with site, based on evidence of respect to the environmental monitoring plan adjacent to the landfill, causing the ongoing potential for and the contingency plans. The Tribunal also environmental harm. the contamination of a number found that monitoring the levels of 1,4-dioxane of domestic wells. is the most effective indicator for identifying In the ensuing years, the leachate contamination, and established a limit MOECC and the owner of 1ug/L as the threshold for establishing the of the site began to take extent of the contamination.

90 Environmental Commissioner Of Ontario The new, stricter monitoring and contingency and other entities just as any other project requirements represent years of hard work by would. For example, a permit under the residents to protect their water supply and the Endangered Species Act, 2007 may be local environment. This case also represents required if the project will affect species a success that would not have been possible at risk; or, if the project is on Crown land it without the EBR right to seek leave to appeal will likely require approval under the Public environmental decisions. Lands Act. However, some renewable energy projects are exempt from some types of The issues raised by the Richmond Landfill legal requirements such as Planning Act are also the subject of an ongoing application instruments (e.g., amendments to zoning by- for review regarding waste disposal site laws and official plans). This exemption limits provisions under the Environmental Protection the ability of municipalities to influence the Act. For further information see Chapter 2.2 location of some renewable energy projects, of this report. including wind farms.

Finally, under the Environmental Protection Act, large-scale wind, solar 3.1.2 Public Appeals and bio-energy projects of Renewable Energy require a Renewable Energy Any resident of Ontario can Approval (REA) issued by the appeal (i.e., challenge) a Approvals Ministry of the Environment and Climate Change decision to issue a REA. Every year the ECO hears from Ontarians (MOECC). As part of a REA who are interested in the way the province application, a proponent must provide regulates large-scale solar, wind and bio- information about the likely environmental energy projects. Although many people effects associated with each stage of the support the renewable energy mandate set project and plans to mitigate those effects. out in the Green Energy Act, 2009, there The proponent must also consult with the is also often confusion and sometimes public, including any Aboriginal communities frustration surrounding the province’s process that may have an interest in the project. In Use of the EBR ’s Legal Tools for deciding which projects should go ahead. determining whether or not to issue the REA, the MOECC will consider a number of factors, Each renewable electricity generation project including the potential environmental impacts requires a number of different agreements on the surrounding landscape. As part of this and approvals, depending on the specific consideration, the ministry will also determine circumstances. First, all proponents need the appropriate conditions to include in a a contract with the Independent Electricity project’s REA to help mitigate any potential System Operator confirming that the project negative impacts. meets technical requirements and will be able to connect to the electricity grid. Next, When a REA is issued, the ministry posts a proponents may have to obtain a number of decision notice on the Environmental Registry. different approvals from provincial ministries

Environmental Protection Report 2015/2016: Volume 1 91 Any resident of Ontario can appeal (i.e., of harm. Such a claim could only be proven challenge) a decision to issue a REA. This is by presenting the Tribunal with sufficient, an unusual appeal right among environmental credible evidence (such as the testimony approvals; for other approvals issued by the of appropriately qualified expert witnesses MOECC, third parties (i.e., anyone other than and academic studies) that specific types the applicant or instrument holder) must first of renewable energy activities, such as the obtain special permission (“leave”) from the operation of wind turbines, will cause health Environmental Review Tribunal (the “Tribunal”) problems in the circumstances of the specific before they can appeal. (For a list of appeals project at issue. filed this reporting year, see previous section on direct rights of appeal by third parties.) Three cases have succeeded on the “environmental harm” argument as of August For a member of the public to be successful 2016. The Tribunal assesses such harm on a in their appeal of a REA, the Environmental case-by-case basis and considers the impact Protection Act requires the appellant to of the project on the local environment. Two prove to the Tribunal that engaging in the of these successful appeals were based on project in accordance with the terms of the findings that the projects in dispute would REA will cause either: (1) serious harm to cause serious and irreversible harm to human health; or (2) serious and irreversible species at risk. In the first case (Alliance harm to plant life, animal life or the natural to Protect Prince Edward County v. Director, environment. (In 2015, the Ontario Court of Ministry of the Environment, also referred Appeal rejected a claim that this appeal test to as “Ostrander Point”), the Tribunal found violated the Canadian Charter of Rights and that the local population of the threatened Freedoms.) Generally, both the MOECC and Blanding’s turtle would experience increased the project proponent will also participate in incidents of vehicle collisions, poaching the appeal, arguing against the allegations of and nest predation resulting from improved harm. The MOECC participates in the appeal access roads. The second case (Hirsch et process because it is defending its decision al. v. Director, MOECC ) made similar findings to issue the REA. with respect to Blanding’s turtle, and also found that the endangered little brown bat Because the legal test requires the Tribunal would suffer collisions with turbines. Central to assume that the project will follow the to the Tribunal’s findings in these cases is conditions of the REA, the appellant cannot the fact that both Blanding’s turtle and little argue that the proponent is unlikely to comply brown bat are species that would be severely with the approval; they can only argue that affected by even a small increase in adult harm will occur even if the REA is followed. mortality. In the third case (SLWP Opposition Corp. v. Director, MOECC), the Tribunal found Many REAs have been appealed by members of the public, most regarding wind energy projects. However, very few of these appeals The Tribunal assesses such harm have been successful, and to date, no appeals on a case-by-case basis and have succeeded on the grounds of harm to considers the impact of the project human health. In order to win an appeal on this ground, the appellant must prove that it on the local environment. is more likely than not that harm will occur as a result of the project; it is insufficient to just raise concerns or prove a possibility

92 Environmental Commissioner Of Ontario that the construction and decommissioning 3.2 Lawsuits and of turbines and access roads associated with the project would cause harm to “significant Whistleblower woodland” within the Oak Ridges Moraine Conservation Plan area. Protection

Public Nuisance Cases A successful appeal does not In Ontario, it is possible to sue someone who un- necessarily mean that the project reasonably interferes with the use and enjoyment of your property; this cause of action is called will not proceed in some form. “nuisance.” In lawsuits relating to environmental issues, it is not uncommon for plaintiffs to claim It is worth noting that in the fall of 2015, that their neighbour’s excessive noise, odour or the MOECC refused to issue a REA for a other pollution constitutes a nuisance. A “public proposed wind facility because the proponent nuisance” is a particular type of nuisance where failed to provide information about the the interference affects many people or the pub- potential impacts of the project on moose lic at large, rather than the private interests of a and moose habitat. The proponent appealed neighbouring owner. the decision to the Environmental Review Tribunal (Horizon Wind Inc. v. Director, MOECC), Before the Environmental Bill of Rights, 1993 but subsequently withdrew its appeal. The (EBR) came into force in 1994, claims for public proponent is proceeding with a lawsuit against nuisance in Ontario had to be brought by, or with the provincial government. the permission of, the Attorney General. Under section 103 of the EBR, however, someone who A successful appeal does not necessarily has suffered “direct economic loss or direct per- mean that the project will not proceed in sonal injury as a result of a public nuisance that some form. It is open to the Tribunal to revoke caused harm to the environment” can bring a the REA altogether, amend it to include new claim without the approval of the Attorney Gener- conditions that address the issues raised, al. Section 103 of the EBR does not create a new or order the MOECC Director to take other cause of action (i.e., a new basis for claiming a actions. As of August 2016, the Tribunal has legal entitlement), since public nuisance was reached a final decision on this point in only already a recognized claim; rather, the provision one case (Alliance to Protect Prince Edward makes it easier for Ontarians to advance such a County v. Director, Ministry of the Environment), claim by removing administrative barriers. It also wherein it decided to revoke the permit specifies that the person does not have to suffer altogether, finding that not proceeding with unique harm in order to receive compensation, the project best served the Environmental as is the case in many other jurisdictions. Protection Act’s purposes, the precautionary principle, and the ecosystem approach. Reviewing the Use of Public Nuisance The ECO is required to review the public’s reliance For each REA appeal, along with appeals of any on section 103 of the EBR. However, there is no other instrument posted on the Environmental obligation for parties who rely on section 103 in a

Registry, the ECO posts a summary of the lawsuit to notify the ECO. As a result, there is no Use of the EBR ’s Legal Tools appellant’s reasons for appealing (i.e., the reliable mechanism for the ECO to track the use “grounds for appeal”) on the Registry. Once of this legal tool. Sometimes, a party will choose the Tribunal has reached a decision, the ECO to notify the ECO directly. Otherwise, the only also posts a summary of that decision on the practical way for the ECO to learn about a pub- Registry. In this way, the Registry can help lic nuisance claim is through a court decision. Ontarians understand why their neighbours This is a problematic method of tracking cases might be objecting to a proposed approval, because the vast majority of lawsuits are settled and how the Tribunal is applying the laws before they reach a courtroom. In those cases, governing approvals to weigh concerns raised there is no court decision and it is unlikely that by members of the public. the ECO will ever know about these claims.

Environmental Protection Report 2015/2016: Volume 1 93 Despite these challenges, the ECO is aware of case of Smith v. Inco (originally called Pearson seven cases since 1994 where public nuisance v. Inco). In 2010, the trial court dismissed the was claimed pursuant to section 103 of the EBR. public nuisance claim because the plaintiffs had One of these cases is a collection of claims filed only alleged an interference with private property by multiple individuals in 2001, all relating to soil rights (i.e., a reduction of individual property val- and groundwater contamination resulting from an ues), and not an interference with a public right escape of gasoline from a fuel service station or resource. While this case went through several (one of which is Anderson and Anderson v. Gulf appeals, this decision regarding public nuisance Canada Resources Limited et al.); they were all was not part of those appeals. settled. The six other cases were each brought as a class action. This pattern makes sense No new lawsuits claiming public nuisance as a because public nuisance claims, by definition, cause of action were brought to the ECO’s atten- involve situations in which numerous people are tion during this reporting year. Although the ECO affected. These claims alleged public nuisance has not been alerted to any newly commenced and other causes of action relating to pollution claims for the past several years, it is likely that and damage from: public nuisance is regularly claimed in cases alleging other environmental torts such as neg- • an industrial fire that allegedly released ligence and private nuisance. However, like all poisons into the air (Cotter v. Levy); legal cases generally, most environmental cases • a municipal landfill (Hollick v. Toronto (City)); are resolved via a settlement agreement, which • discoloured and odorous drinking water does not make any specific findings with respect (Wallington Grace v. Fort Erie (City of)); to different causes of action. Furthermore, for • a petroleum refinery that allegedly those that do proceed, it can take many years for released contaminants into the air (Lewis a case to make it to trial, especially in the case and Weeke v. Shell Canada Limited and Shell of a class action; this means there may be sever- Canada Products Limited); al years between when an action is commenced • a propane facility explosion (Durling et al. v. and when the court decision is released, which Sunrise Propane Energy Group Inc. et al.); may be the first the ECO learns of a case. For and example Smith v. Inco, commenced in 2001, but • nickel emissions from a now-closed refinery only reached trial in late 2009 and was not finally that caused soil contamination (Smith v. Inco). decided until 2011.

Under Ontario law, class actions must get court The Right to Sue for Harm to a approval (i.e., be “certified”). Certification is Public Resource based on whether a class action is the most The EBR gives Ontarians the right to sue any per- practical and appropriate means of dealing with son who is breaking, or is about to break, an envi- the issues raised in the case. Although the court ronmental law, regulation or instrument that has usually considers the nature of the claim, the caused, or will cause, harm to a public resource. certification decision is not a pre-consideration This provision creates a new cause of action. of the merits of the case (i.e., being awarded or denied certification does not reflect the validity In these cases, the EBR requires that plaintiffs of the claim itself; it only means that a class ac- notify the ECO so that we can place a notice of tion is or is not the best way to proceed with the the action on the Environmental Registry. As a matter). Of the six class actions, only three made result, the ECO should be aware of all cases al- it past the certification stage of the proceeding. leging harm to a public resource pursuant to the EBR. While this process tells us when a case has Parties to two of the three class actions that ad- commenced, there is no special mechanism for vanced beyond certification settled the matter the ECO to learn of the outcome. As in the case out of court. As a result, the only adjudication of public nuisance, if a case goes to trial the deci- of a claim for public nuisance is found in the sion will usually be publically available. However,

94 Environmental Commissioner Of Ontario this is not a guarantee and if an action settles reprisals. However, there is no requirement for or is discontinued for other reasons (as is most parties who rely on these provisions to notify the often the case), the ECO may not have access ECO. As a result, there is no reliable mechanism to that information. In these cases, we depend for the ECO to track the use of this right. The only on parties voluntarily advising us of the status practical way for the ECO to know about a case is of the matter. if a decision is posted online after it is heard by the Board. However, this is an unreliable method The EBR requires the ECO to review the use of of tracking cases. this right of action. The ECO is aware of three cases where harm to a public resource was al- As a result of following publicly available Board leged. The first, commenced in 1998, is Braeker decisions, the ECO is aware of a handful of cas- et al. v. The Queen et al.; this case involved alle- es in which employees have claimed entitlement gations that a property owner had been illegally to this “whistleblower” protection under the EBR dumping and burying scrap tires that, in turn, con- – roughly one per year since 2005 (the earliest taminated subsoil, groundwater and surface wa- record the ECO has identified). Most of these ter in the surrounding area. The ECO was advised cases settled before reaching a hearing, were in late 2014 that this case was still open, but withdrawn by the applicant, or the EBR compo- had made no progress since 2001 to proceed nent of the case was dismissed prior to a full to trial. The second, Brennan et al. v. the Board of hearing because the Board found that there was Health for the Simcoe County District Health Unit an insufficient basis for the claim (i.e., even if the was commenced in 1999 and alleged that sub- applicant’s account of events was assumed to standard sewage systems were polluting ground be true, it did not fulfil the statutory requirements and surface water. This case was dismissed in under this section of the EBR). The ECO is not 2002 because the plaintiffs did not wish to con- aware of any case where the Board found that tinue. The third action, Campbell et al. v. Powas- an employer took reprisal action as prohibited by san (Municipality of) et al., was commenced in the EBR. 2002 and related to a municipal decision to develop a snowmobile trail without undertaking an In 2015/2016, the ECO learned of one new environmental study; the status of this case is case, William Arthur Shannon, Applicant v. Toron- unknown. to Star Newspapers, alleging employer reprisal; this application was withdrawn by the applicant No new claims for harm to a public resource were in May 2016. In addition, the ECO learned that brought to the ECO’s attention during this report- the matter of Tirone v. Ontario (Ministry of the ing year. Environment), which we reported upon in the 2014/2015 Annual Report, was resolved by way Whistleblower Rights of a settlement agreement in 2015. The EBR provides rights to employees who experience reprisals (e.g., dismissal, discipline, etc.) by their employers for reporting environmental vi- Use of the EBR ’s Legal Tools olations or otherwise exercising their rights under the EBR. Anyone who believes they have experienced such a reprisal may file a complaint with the Ontario Labour Relations Board (the “Board”) and the Board may then take steps to resolve the issue.

The EBR requires the ECO to review recourse to the procedure for complaints about employer

Environmental Protection Report 2015/2016: Volume 1 95 CHAPTER 4 THE ECO AT WORK

4.0 Introduction 97

4.1 ECO Successes: Moving the Government Forward on Important Issues 98

4.1.1 Reducing the Use of Neonicotinoid Pesticides in Ontario 98

4.1.2 Stopping SLAPPs in Their Tracks 101

4.1.3 Changes to Development Charges 103

4.2 Education and Outreach 104

4.3 The ECO Recognition Award 105

96 Environmental Commissioner of Ontario Last but not least, the ECO provides guidance 4.0 Introduction to ministries on EBR matters, and encourage- ment to ministries that initiate programs that The ECO works on many fronts to uphold the further the purposes of the EBR. We acknowl- Environmental Bill of Rights, 1993 (EBR). While edge the most exceptional of such initiatives by one of our core functions is to encourage min- publicly recognizing their work. istries’ compliance with their EBR obligations, as described in earlier chapters of this report, In this chapter, we describe some of the ECO’s equally important is our role in promoting pub- work on these fronts in 2015/2016. We recount lic awareness of the EBR and helping Ontarians three examples of the ECO’s role in successful- exercise their EBR rights. ly moving the government forward on important environmental issues. We also report on the The ECO also serves an important function by ECO’s extensive public education and outreach informing the public about government deci- work, and we describe a commendable ministry sions that affect the environment, and raising initiative that we have chosen to acknowledge the profile of other new or significant environ- with this year’s ECO Recognition Award. mental issues relevant to Ontario. We often urge the government to take strong action on these issues to better protect the environment. The ECO at Work

Environmental Protection Report 2015/2016: Volume 1 97 4.1 ECO Successes: 4.1.1 Reducing the Moving the Use of Neonicotinoid Pesticides in Ontario Government Forward We humans tend to take nature’s intricate on Important Issues workings for granted. Take insects, for example. Unless they are devastating our garden Big government decisions usually involve plants, crawling into our picnic basket, or drink- many players. New laws, policies or programs ing our blood at sunset, we don’t often think designed to protect the environment are about these tiny creatures at all, let alone the based on a wide variety of inputs and often roles they play in natural ecosystems. In the take a long time from first consideration to last few years, however, the cloak of anonymi- final action. In fact, it can take months or ty around beneficial insect services has been years of work by groups or individuals, often at least partially breached. Prominent media working separately, to prompt the government stories have described the ongoing decima- to take action. tion of honey bee populations, and warned us of the corresponding threat to many of our When the ECO has played a role in important food crops that depend on bees moving the government forward on an for pollination. These honey bee die-offs have important environmental issue – by making been linked to a variety of factors, including recommendations in our reports, drawing diseases, pests, habitat loss and pesticides. attention to the issue through blogs, speaking However, one group of insecticides in partic- out about the issue at conferences and in the ular – neonicotinoids – has justifiably come media, or holding a ministry’s feet to the fire under heavy fire. through direct correspondence and meetings – we consider the outcome a success for The threat of losing our bees is certainly no- our office, even if many others have also table and newsworthy. The problem, however, contributed to the effort. does not begin or end with honey bees. A par- allel decline in the population of other benefi- ...making recommendations in our reports, cial insects, such as bumble bees and some types of butterflies, has largely gone unreport- drawing attention to the issue through ed. Unless you watch the nature channel reg- blogs, speaking out about the issue at ularly, you won’t see many media stories on conferences and in the media, or holding the gradual reduction in insect populations, or the resulting decline of creatures that de- a ministry’s feet to the fire through direct pend on insects for food, such as insectivo- correspondence and meetings... rous birds. Yet these declines are happening both within Ontario and worldwide and have many scientists very concerned. Pollination, Since the EBR came into force in 1994, plant litter recycling, soil building, and acting the ECO has prompted the government to as a primary food source for the entire food act on many environmental issues; you can web: these are just a few of the fundamental read about some of these successes on our services insects provide. Without this diverse website at eco.on.ca. In this part of our report, and industrious army of arthropods, life as we we highlight three ECO “success stories” from know it on this planet would be impossible. our 2015/2016 reporting year, in which the ECO played a significant role in moving the government forward. The problem, however, does not begin or end with honey bees.

98 Environmental Commissioner of Ontario The ECO has been concerned about insect ture and Food and the Ministry of the Environ- population declines and the impacts on eco- ment undertake monitoring to determine the systems for several years. We first wrote prevalence and effects of neonicotinoids in about the potential link between pesticides soil, waterways and wild plants.” and declining pollinator populations in our 2008/2009 Annual Report (Part 4.6). At By the following year, the worldwide body of that time, we congratulated the Ontario gov- scientific evidence regarding the effects of ernment for implementing its cosmetic pesti- neonicotinoids had expanded enormously. cide ban, while stating that, “the ECO would However, the public debate and media were like to see efforts at pesticide reduction in still focusing primarily on bees and on the all contexts.” We pointed out the alarming need to reduce the declines in pollinator populations around the insecticide-laden world, which go well beyond honey bees to in- dust generated by The worldwide body of scientific evidence clude species such as wild bees, bats, and planting equipment, regarding the effects of neonicotinoids hummingbirds. We noted that pesticides “are while ignoring many biologically active substances specifically de- of the broader eco- had expanded enormously. signed to kill target organisms, but can also logical risks identi- impact non-target organisms.” fied by scientists. Accordingly, our 2014/2015 Annual Report The ECO’s 2013/2014 Annual Report (Sec- (Part 2.2) included a primer on systemic pes- tion 2.2) included a more in-depth analysis of ticides, in which the bigger picture, as summa- the threat to pollinators posed by pesticides, rized from hundreds of scientific papers, was this time focusing on neonicotinoids specifi- presented in considerable detail. The primer cally. We pointed out that the Committee on described the risks associated with the main the Status of Pollinators in North America exposure routes – air, soil, water, and plants has identified downward population trends for – and summarized the documented effects several wild bee species, some butterflies, on non-target organisms, such as pollinators, bats and hummingbirds, and that “evidence aquatic invertebrates, vertebrates, and soil of declines among insectivorous birds may organisms. The ECO concluded that there was also suggest broader negative trends in in- compelling evidence that neonicotinoids have sect populations.” Although several factors the potential for disrupting entire food webs, are likely causing the declines, our report ex- and that these insecticides could have cas- plained why neonicotinoid pesticides are dan- cading impacts on vital ecosystem functions. gerous to insects in particular and to natural ecosystems in general. Our report had an impact. On June 9, 2015, the Ministry of the Environment and Climate Neonicotinoids are “systemic” pesticides. Change (MOECC) filed a regulation amending Unlike earlier pesticides, such as DDT, which O. Reg. 63/09 made under the Pesticides Act, remained on a plant’s treated surfaces, neon- intended to reduce the use of neonicotinoid icotinoids are water soluble and are taken up insecticides. The ministry stated that the reg- by plants through their roots. They are widely ulatory amendments, as well as associated distributed to all parts of the plant, includ- guidelines, constituted the first step in the ing leaves, pollen, and seeds. This solubility implementation of a comprehensive Pollinator The ECO at Work also results in the mobility of neonicotinoids Health Action Plan. In summary, the amend- in both soil and aquatic ecosystems, where ments established: a new class of pesticides, they may impact non-target organisms and be consisting of seeds treated with three spe- taken up by non-target plants. The ECO ex- cific neonicotinoid insecticides; rules for the pressed concern regarding the government’s sale and use of these treated seeds; and the “relatively narrow focus on pollinators” and timing and implementation of the regulation’s recommended “that the Ministry of Agricul- requirements.

Environmental Protection Report 2015/2016: Volume 1 99 The new rules require farm- Few jurisdictions outside of the European ers to: take training in inte- Union have taken steps to restrict the use of grated pest management; neonicotinoids. The MOECC deserves credit obtain regular assess- for taking this important action – in doing so ments of the presence of Ontario has demonstrated its leadership in pests in their soil before protecting our ecosystems from the harmful being allowed to purchase effects of pesticides. The ECO is gratified to treated seed; and lastly, see that our message regarding the broader use these pesticides in a implications and risks of neonicotinoid use manner that reduces their has been both heard by the ministry and re- impact on pollinators (e.g., controlling insecticide-laden dust emitted from plant- Ontario has demonstrated its ing equipment). The goal of leadership in protecting our this new regulatory framework and policy is to reduce the number of the province’s farmland ecosystems from the harmful acres that annually receive treated seeds by effects of pesticides. 80 per cent by 2017.

Many farmers expressed legitimate concerns flected in its new program. The ECO strongly about their ability to protect their crops from supports both the new rules for neonicotinoid pests under this new regulatory framework. use and the 80 per cent goal set by the minis- They also questioned the practicality of the try; we will be monitoring progress on this file regulation. In fact, the Grain Farmers of On- very closely over the next few years. tario challenged the new rules in court, arguing that the regulation is unworkable, will produce little benefit, and will impair the ability of its members to protect their crops. The lawsuit was ultimately dismissed by Ontario’s Court of Appeal in April 2016.

The ECO continues to engage in an open dialogue about these issues with concerned farming groups. These efforts include shar- ing up-to-date science on neonicotinoids, and working to raise awareness about the importance of improving soil health as a means of reducing the need for pesticides. Neon- icotinoids are the most widely used insecticides in the world, and reducing their use is undoubtedly a politically difficult proposition.

100 Environmental Commissioner of Ontario 4.1.2 Stopping SLAPPs be advanced by the proponents of proposed land use or resource development, major in- in Their Tracks dustrial projects or other activities that affect the environment in order to quell public op- In Ontario, there is keen public interest in position. matters that affect the environment. In fact, thanks to the Environmental Bill of Rights, The effects of a SLAPP can reverberate well 1993, Ontarians have the legal right to par- beyond the specific person or group targeted ticipate in the government’s environmental by the lawsuit. The time and money that a decision making. Ontarians also take action person may be forced to expend defending on environmental issues in many other ways; a SLAPP (not to mention the stress of being for example, by speaking out publicly about sued) may discourage not only that person possible negative environmental consequenc- from continuing to speak out, but it may also es of certain activities, or by otherwise op- dissuade others from engaging in matters of posing proposed projects. But the power and public interest due to fear of similar legal ac- resource imbalance that sometimes exists tion. between big corporations undertaking activities that negatively affect the environment The ECO’s call for an Anti-SLAPP Law and the ordinary citizens that speak out in op- in Ontario position can create a chilling effect on public SLAPPs began to emerge in Canada in the participation. The ECO and others have long late 1980s and early 1990s, often involving called for legal reforms to protect individuals environmental and land use issues. Calls for and organizations from “SLAPP suits” initiat- anti-SLAPP legislation were not far behind. ed to silence legitimate public discourse on The ECO first recommended that Ontario en- environmental issues. act anti-SLAPP legislation in our 2008/2009 Annual Report (Part 3.1), New rules brought in under the Protection of when we noted the power Public Participation Act, 2015 in the fall of and resource imbalance ...the need to protect public 2015 are therefore a welcome change; one between developers and participation in environmental that should enable engaged citizens to free- local residents engaged in decision-making. ly voice their concerns about environmental planning disputes. matters without the overshadowing threat of retaliatory legal action. In May 2010, mere months after the ECO recommended that Ontario enact an anti-SLAPP The Lowdown on SLAPPs law, the Ontario government struck an An- SLAPPs – short for “strategic lawsuits against ti-SLAPP Advisory Panel to report on “how the public participation” – refer to civil actions Ontario justice system should be designed to (usually defamation lawsuits) that are initiat- prevent the misuse of the courts and other ed, without merit, for the purpose of intimidat- agencies of justice without depriving anyone ing or silencing critics who speak out on mat- of appropriate remedies for expression that ters of public interest. In the environmental goes too far.” Members of the public were The ECO at Work context, SLAPPs (or the threat thereof) may invited to provide suggestions to the Panel.

Environmental Protection Report 2015/2016: Volume 1 101 The Panel sought the ECO’s input, and we pro- (d) to reduce the risk that participation by the vided the Panel with past ECO commentary public in debates on matters of public in- about the public interest and the need to pro- terest will be hampered by fear of legal tect public participation in environmental de- action. cision-making. Others also referred the Panel to the ECO’s 2008/2009 Annual Report in Now, a person targeted by a SLAPP (the de- their submissions to the Panel supporting an fendant) can make a request (called a “mo- anti-SLAPP law in Ontario. tion”) to have the lawsuit thrown out (i.e., “dismissed”) at any time. To succeed, the The Panel released its report in December defendant must satisfy the judge that the 2010, finding that “threats of lawsuits for lawsuit arises from an “expression” (i.e., any speaking out on matters of public interest, communication, verbal or non-verbal, public combined with a number of actual lawsuits, or private) made by the defendant that re- deter significant numbers of people from par- lates to a matter of public interest. ticipating in discussions on such matters.” The Panel concluded that the value of public However, to ensure that legitimate lawsuits participation warranted the enactment of leg- are not dismissed using this process, the islation aimed at deterring SLAPPs in Ontario. judge will not dismiss a lawsuit if the person While the Panel’s report brought reason for who initiated the claim (the plaintiff) can sat- optimism, the government seemed to lose isfy the judge that: momentum after its release. For over a year, no action followed, and in response to an en- • there is reason to believe the claim has quiry by the ECO in early 2012 the Ministry substantial merit, and the defendant has of the Attorney General would only say that it no valid defence to the lawsuit; and was continuing to study the report. The ECO • the public interest in allowing the lawsuit reiterated our call for the government to enact to continue outweighs the public interest anti-SLAPP legislation without further delay in in protecting the expression. our 2011/2012 Annual Report (Part 6.2). The court must hear a motion to dismiss Following a first attempt in 2013 with an anti- a SLAPP suit within 60 days after it is filed SLAPP bill that died on the order paper, the – a short timeframe in the context of civ- Ontario government introduced Bill 52 in De- il lawsuits. The SLAPP suit and any related cember 2014. The Protection of Public Partic- proceedings will be automatically suspended ipation Act, 2015 – Ontario’s first anti-SLAPP until the motion is decided. These provisions law – finally came into force on November 3, should help limit the time and resources that 2015. a defendant must invest to fight a SLAPP. Further, if a defendant succeeds in having a The Protection of Public Participation lawsuit dismissed as a SLAPP, the defendant Act, 2015 is entitled to have their full legal costs on the The amendments made by the Protection of motion and the lawsuit paid by the plaintiff; Public Participation Act, 2015 to other rele- additional compensation may be awarded if vant acts created a new process that allows the judge finds that the plaintiff brought the the courts to identify and dismiss SLAPPs lawsuit in bad faith or for an “improper pur- relatively quickly, with the following purposes: pose.” By contrast, if a SLAPP motion fails, the defendant generally does not have to pay (a) to encourage individuals to express them- the plaintiff’s legal costs. These untraditional selves on matters of public interest; costs provisions should act as a significant (b) to promote broad participation in debates deterrent to prospective SLAPP plaintiffs. on matters of public interest; (c) to discourage the use of litigation as a Controversially, anti-SLAPP motions may only means of unduly limiting expression on be brought in lawsuits commenced on or after matters of public interest; and December 1, 2014 (the date the bill received first reading); the 2013 bill would have applied retroactively.

102 Environmental Commissioner of Ontario Looking Ahead The ECO applauds the Ontario government for 4.1.3 Changes to listening to us and many other stakeholders, and finally passing legislation to stop SLAPPs Development Charges in their tracks. While the amendments made by the Protection of Public Participation Act, New development brings more people to an 2015 apply to all matters of public interest, area, either as residents or through employ- they represent a particularly important im- ment, and this can bolster the local economy provement for the environmental community. and municipal revenues. However, new development can also result in increased costs for Environmental organizations and private citi- municipalities, such as building new roads zens need to be free to voice their concerns or expanding wastewater treatment plants. about issues that affect the environment To help cover these increased capital costs, without fear of becoming embroiled in pro- the Development Charges Act, 1997 allows tracted and expensive litigation. The new law Ontario’s municipalities to impose develop- has created a faster way to weed out SLAPPs ment charges for an area by passing a by-law. that, ideally, should deter prospective SLAPP In 2011, about 200 municipalities collected plaintiffs from initiating such claims in the $1.3 billion in development charges to help first place and help to redress power imbal- pay for increased capital costs associated ances on public interest matters, while still with growth. While this amount is large, many allowing legitimate claims to proceed. municipalities maintain that this revenue was not fully covering the capital costs related to But there is much uncertainty, criticism and growth. skepticism about the new law, from how the ambitious timelines will be achieved to In September 2013, the ECO reported on how key terms will be interpreted. Some crit- a number of issues with the development ics argue the law will protect “professional charges system (see Building Momentum, campaigners” and prevent companies from Provincial Policies for Municipal Energy and protecting themselves against defamation. Carbon Reductions, the ECO’s Annual Energy Further, the new rules only apply to SLAPPs Conservation Progress Report 2012 – Volume initiated in the court system. They cannot be 1), specifically: used to address the use of similar tactics in other contexts, such as the use of exorbitant • municipalities could only calculate tran- costs motions at the Ontario Municipal Board sit-related development charges based on to discourage public involvement – an issue 10-year historical service level averages the ECO raised in our 2008/2009 Annual Re- – not on future service needs that would port, and which continues to be a problem. be driven by increased population and employment growth; The ECO will keep watching to find out – and • in calculating development charges, the report to Ontarians – how well the Protection growth-related capital costs for transit of Public Participation Act, 2015 is, in fact, were subject to a mandatory 10 per cent serving its purpose. reduction, whereas other services like roads, water and wastewater were exempt from this mandatory reduction; and • development charges could be better used The ECO at Work to strategically direct growth to achieve intensification and density targets under the Growth Plan for the Greater Golden Horseshoe, 2006; this would mean using area-specific development charges rather than an average-cost-per-unit approach, which essentially subsidizes the costs of servicing large lots on greenfield sites.

Environmental Protection Report 2015/2016: Volume 1 103 The ECO recommended that the Ministry of Mu- 4.2 Education and nicipal Affairs and Housing (MMAH) amend the Development Charges Act, 1997 to expand the Outreach ability of municipalities to fund growth-related public transit services through development People across Ontario face a wide range of en- charges. It was also recommended that the vironmental issues every day, from questions ministry produce a best practices guide that about local matters such as waterways or air outlines how development charges can be used quality, to broader concerns about a changing to encourage more compact and sustainable climate. Part of our job is helping the public communities. understand and navigate their environmental rights under the Environmental Bill of Rights, Shortly after, in October 2013, the MMAH un- 1993 (EBR), so they can engage directly with dertook a review of the development charges Ontario ministries on environmental decisions system along with a review of the land use that matter to them. Another core part of our planning and appeal system. The govern- job is reporting to the Ontario Legislature and ment subsequently passed the Smart Growth the broader public on how well ministries are for Our Communities Act, 2015, which made delivering their environmental responsibilities. a number of amendments to the Develop- Making these reports accessible and relevant ment Charges Act, 1997 and the Planning to the people who need them is a key goal of Act. Some of these amendments should help our public education and outreach work. municipalities recover, through development charges, more of the capital costs for infra- To strengthen our outreach, we revamped structure needed to support growth. Nota- our website (eco.on.ca) in early 2016. Our bly, the government implemented the ECO’s website is now much easier to navigate and recommendation to add transit to the list of mobile-friendly, allowing for more effective services that are not subject to a 10 per cent access to our publications and research. We reduction. Additionally, capital costs for certain have also introduced a Registry Alert service services (to be defined later by regulation) will (alerts.ecoissues.ca), allowing the public to be calculated based on the planned level of receive customized email alerts when topics services over the next 10 years instead of the that interest them show up on the Environ- average level over the last 10 years. mental Registry. Ontarians can also follow the ECO through our blog, Twitter and Facebook Together, these amendments should enable accounts and YouTube channel. Stay tuned municipalities to plan, finance and build more for more updates to the ECO’s website in the and better public transit to meet growing popu- coming year. lations. This, in turn, should help reduce greenhouse gas emissions and air pollution by mak- Each year we also offer the public training ing it more convenient for people to travel via on how to use the EBR. In March 2016, we transit instead of using their cars. Public transit collaborated with the Sustainability Network is also a cornerstone to building compact com- to host an EBR workshop for environmental munities that should lessen urban sprawl and non-profit groups in the Greater Toronto Area. the development of greenfield areas. The Sustainability Network also hosted a we- binar for us in November 2015, allowing us While these are encouraging steps forward, to share highlights of our 2014/2015 Annual guidance for municipalities on how to better use Report with a Canada-wide audience. development charges to create more compact and sustainable communities is still outstand- The Environmental Commissioner and Dep- ing. Given the recent changes to the develop- uty Commissioner make a point of including ment charges system and the continued rapid information about the EBR as part of their rate of growth in southern Ontario, the need for such a guidance document continues to exist.

104 Environmental Commissioner of Ontario presentations to audiences across the province. Since being appointed in December 2015, Com- 4.3 The ECO missioner Saxe has spoken at numerous venues, Recognition Award reaching thousands of people, from Thunder Bay and Pikangikum in northwestern Ontario, to bio- Every year, we ask prescribed ministries to diversity groups on the shores of Lake Erie, to submit outstanding programs and projects boardrooms in downtown Toronto. Commissioner to be considered for the ECO’s Recognition Saxe also met with each of the three party cau- Award. This award is meant to recognize the cuses at the Ontario Legislature, and is visiting hard work of ministry staff (not ministers) in ridings across the province to introduce herself, an initiative that is innovative, goes above and share her priorities and hear about environmental beyond legal mandates, betters Ontario’s en- issues from the Members of Provincial Parliament vironment, and that meets the requirements (MPPs) and their constituents. and purposes of the Environmental Bill of Rights, 1993 (EBR). Every year, our Public Information and Outreach Officer receives a wide range of public enquiries This year, the ECO received nominations for on a variety of environmental concerns – about 11 projects and programs from 5 ministries. 1,400 enquiries each year, by phone and email. One worthy initiative was disqualified because Common concerns include: difficulties accessing it had not been posted on the Environmental information about environmental assessment Registry, as required by law. processes, questions about the use of the En- vironmental Registry, and questions about the After careful consideration, the ECO decided ECO’s position on a variety of topics. We also help to give the 2016 ECO Recognition Award to redirect some callers to information and services Ministry of Natural Resources and Forestry they seek within provincial and municipal govern- (MNRF) staff for the Mid-Canada Radar Site ments or other agencies. Clean-up in Polar Bear Provincial Park. This is the seventh time The ECO is always on the lookout for new au- that staff from the diences, to share information about the citizen MNRF has received The ECO decided to give the 2016 rights toolkit available under the EBR, and to up- this award. The ECO ECO Recognition Award to Ministry date Ontarians on current environmental issues. is also giving an hon- The ECO is happy to offer presentations about ourable mention to of Natural Resources and Forestry the EBR to audiences across Ontario, including the Ministry of Trans- staff. lecture and classroom settings, service clubs, portation (MTO) staff private sector groups, ratepayer groups and for their project to non-profits. For more information, contact us at restore fish passage in a tributary to the Sa- [email protected]. ugeen River, near Southampton, Ontario. The ECO congratulates all the ministry staff who implemented these exceptional environmental projects.

Award Winner: The Ministry of Natural Resources and Forestry’s Mid-Canada Radar Site Clean-Up in Polar Bear Provincial Park The ECO at Work The MNRF, with support from the federal De- partment of National Defense and local First Nations’ communities, planned and implemented a remediation project to clean up a Cold War-era abandoned radar site in Polar

Environmental Protection Report 2015/2016: Volume 1 105 Bear Provincial Park, known as Site 415. This The team also cleaned-up: 2.3 million hectare park, situated along the Hudson and James Bay coasts, is home to po- • 6,520 drums (excluding drums from Sites lar bears, caribou, seals and beluga whales. 418 and 421) that contained 30,000 li- The park also contains the world’s third larg- tres of gas, oil and other toxic or harmful est wetland, which is globally recognized for liquids; its importance to migratory birds. • 126 m3 of Tier 1 materials including mostly asbestos; The military constructed several radar sites • 1,640 litres of PCB liquids; within Polar Bear Provincial Park during the • An additional 90 m3 of Tier 1 materials Cold War, but they were abandoned in the mid- (asbestos) from Doppler sites 418 and 1960s. For decades, they blemished the land- 421; scape with derelict contaminated buildings of • 3,970 tonnes of low-level PCB contami- steel and cement; abandoned vehicles and nated soils; and equipment; radio towers and massive radar • 280 tonnes of PCB hazardous soils and screens. Additionally, the site contained bar- debris. rels (some that still contained gasoline and oil), garbage dumps, hazardous and non-haz- The MNRF reported that it transported the ardous waste (e.g., asbestos, mercury, and contaminated waste over land to the James oil) and contaminated soils. Bay coast, mostly in the winter on winter trails, to lessen the impact to the fragile This area of the park is still extensively used James Bay inner landscape. It then used a by First Nations people living in nearby com- barge to transport the contaminants to a ship munities such as Attawapiskat, Fort Severn that carried it to proper treatment facilities in and Peawanuk. The MNRF held several meet- the Montreal area. ings and open houses in affected Indigenous communities to explain the clean-up project, Once materials were removed from the park, engage the communities, and provide oppor- the ministry also stated that it worked to tunities for input. Community members ac- “restore the site to as near a natural state tively worked with the MNRF in this clean-up as possible,” by reshaping road and trails project by putting in more than 27,000 hours to resemble a natural landscape and seed- of work. Additionally, more than 1,800 hours ing them with naturally sourced native seed. of classroom and on-the-job training was pro- Additionally, the team constructed habitat for vided to community members. at-risk barn swallows on site, and included in- terpretive education panels. The ministry is Over a period of two years, the Mid-Canada confident that the park is now much cleaner Line team, including ministry staff and the lo- and safer, and local communities can contin- cal members, cleaned-up several dilapidated ue to use the remediated area for their tra- buildings, leaking generators, vehicles, trac- ditional hunting practices as wildlife migrate tors and refuse dumps from the park. through and live in the park.

Mid-Canada Radar Site Clean-up in Polar Bear Provincial Park. Source: Ontario Parks/MNRF 106 Environmental Commissioner of Ontario Honourable Mention: Ministry of create fish refuge areas within the culvert. Transportation Restoring Fish Passage They also serve to reduce the accumulation in a Tributary to the Saugeen River of debris within the culvert, which can also act as a barrier to fish. In 2015, a team led by MTO staff restored fish passage in a tributary of the Saugeen River, The MTO reported that as a result of this new within the Saugeen First Nation Reserve #29 culvert, “sensitive fish species may now in- (near Southhampton), by creatively replacing crease their range, accessing reaches of the an aging highway culvert. This team included stream they have not been able to access numerous MTO staff, as well as external con- for over seventy-five years. This will not only sultants, researchers, and a representative have a positive effect in restoring the natural from the Saugeen Ojibway Nation. The outlet ecosystem, but will also serve to expand the for the old culvert was perched above the habitat of a valuable natural resource to the streambed, impeding the movement of fish First Nations community.” such as rainbow trout. Restoring fish passage upstream of the culvert was made possible by installing a new culvert with an innovative fish ladder within it.

The fish ladder is made of a corrugated steel liner with evenly spaced baffles bolted throughout the length of the culvert. The baffles are designed to slow the water flow and

Past Recipients of the ECO’s Recognition Award 2015 No submission found to be acceptable 2014 Water Chestnut Management in Voyageur Provincial Park (MNRF) 2013 Wasaga Beach Provincial Park Piping Plover Program (MNRF) 2012 Algonquin Provincial Park’s Waste Management System (MNRF) 2011 Bioretention Cells and Rubber Modified Asphalt at the QEW Ontario Street Carpool Lot, Beamsville (MTO) 2010 Green Power for the Summer Beaver Airport (MTO) 2009 Project Green (MOECC) 2008 Zero Waste Events at the Metro Toronto Convention Centre (MTCS) 2007 No submission found to be acceptable 2006 Southern Ontario Land Resource Information System (MNRF) 2005 Conservation of Alfred Bog (MNRF, MOECC, MMAH) 2004 Environmental Monitoring (MOECC)

2003 Ontario’s Living Legacy (MNRF) The ECO at Work 2002 Oak Ridges Moraine Strategy (MMAH) 2001 Eastern Massasauga Rattlesnake Project for Highway 69 Reconstruction (MTO) 2000 Septic System Program (MMAH)

MOECC – Ministry of the Environment and Climate Change; MMAH – Ministry of Municipal Affairs and Housing; MNRF – Ministry of Natural Resources and Forestry; MTCS – Ministry of Tourism, Culture and Sport; MTO – Ministry of Transportation.

Environmental Protection Report 2015/2016: Volume 1 107 CHAPTER 5 RECOMMENDATIONS

Recommendations

No Transparency for Aggregate Resources Act Instruments (Chapter 1.2.2)

The Ministry of Natural Resources and Forestry should fix the long-standing deficiencies in Environmental Registry notices for Aggregate Resources Act instruments to ensure the public’s right to be notified and comment.

Outdated Proposals (Chapter 1.2.3)

All prescribed ministries should establish processes to ensure that decision notices are posted as soon as reasonably possible after decisions are made.

All prescribed ministries should remedy all of their outdated notices that remain on the Environmental Registry without a decision.

Environmental Registry: Overhaul Discussions Begin (Chapter 1.2.4)

The Ministry of the Environment and Climate Change should give the needs of existing Environmental Registry users strong consideration in the design of a new Registry.

Keeping the EBR in Sync with Government Changes and New Laws (Chapter 1.4)

The Ministry of Education should be prescribed under the EBR for the purposes of applications for review.

Ministries’ Handling of Applications for Review in 2015/2016 (Chapter 2.2)

The Ministry of the Environment and Climate Change should conclude all overdue reviews in 2016/2017 and, further, should conduct reviews with greater speed going forward.

Public Should be Alerted to Poor Water Quality After Wastewater Overflows and By- passes (Chapter 2.3.2)

The Ministry of the Environment and Climate Change should work with Toronto Water to implement procedures for public notification of sewage bypass events as soon as possible.

108 Environmental Commissioner of Ontario Staff List

Dianne Saxe, Commissioner Ellen Schwartzel, Deputy Commissioner Kyra Bell-Pasht, Policy Advisor Stacey Bowman, Policy Advisor Carrie Cauz, Resource Centre Co-ordinator Rebekah Church, Senior Policy Advisor Emily Cooper, Senior Policy Advisor Doreen DuGray, Co-ordinator HR/Finance/Administration Jessica Isaac, Senior Policy Advisor Michelle Kassel, Senior Manager, Legislative Analysis Dana Krechowicz, Senior Policy Advisor Glenn Munroe, Senior Policy Advisor Nancy Palardy, Senior Policy Advisor Mike Parkes, Senior Policy Advisor Sarah Robicheau, Senior Policy Advisor Cinzia Ruffolo, Project Co-ordinator Nadine Sawh, Case Management Assistant Tyler Schulz, Director of Operations Carolyn Shaw, Senior Policy Advisor Yazmin Shroff, Public Information/Outreach Officer Kirstin Silvera, Policy Advisor Martin Whicher, Senior Manager, Energy Conservation Christopher Wilkinson, Senior Manager, Environmental Science Geoff Yunker, Senior Policy Advisor 1075 Bay Street, Suite 605 www.eco.on.ca Toronto, Ontario M5S 2B1 Canada ISSN 2371-4727 (print) ISSN 2371-4735 (online) 416.325.3377 tel 416.325.3370 fax Disponible en français 1.800.701.6454