Ontarios Environment and the Common Sense Revolution: A Fifth Year Report Canadian Institute for Environmental Law and Policy LInstitut Canadien du Droit et de la Politique de LEnvironnement Acknowledgements Ontarios Environment and the Common Sense For more information about this publication, Revolution: A Fifth Year Report CIELAP or any of CIELAP’s other publications, please consult our website, call us, or write us. By Karen L. Clark LLB MA, Legal Analyst and James Yacoumidis MA, Research Canadian Institute for Associate Environmental Law and Policy 517 College Street, Suite 400 Toronto, Ontario M6G 4A2 The Canadian Institute for Environmental Law and Policy would like to thank the Joyce Foundation for their support for this project. Website: http://www.cielap.org E-mail: [email protected] The authors wish to thank everyone who helped Telephone: 416.923.3529 with this report. Fax: 416.923.5949 Special thanks go to Theresa McClenaghan, Copyright © 2000 Canadian Institute for Environ- CIELAP board member and counsel for the Cana- mental Law and Policy. All rights reserved. Except dian Environmental Law Association for her ex- for short excerpts quoted with credit to the copy- traordinary efforts reviewing this report. right holder, no part of this publication may be produced, stored in a retrieval system, or transmit- Special thanks are due as well to Mark Winfield for ted in any form or by any means, photomechanical, his guidance and expertise early in the project and electronic, mechanical, recorded or otherwise for reviewing early drafts. without prior written permission of the copyright holder. We would like to thank our other reviewers: Linda Pim, Tim Gray and Ian Attridge. ISBN 1-896588-07-7 Thanks also to Anne Mitchell, Andrea Isaac, Megan Mills, Alan Levy, Grace Patterson, John Swaigen, Paul Muldoon , Rick Lindgren, Ramani Nadarajah, Clarrisa Morawski, Jack Gibbons, Brennain Lloyd, Gord Perks, Dan McDermott, Lois Corbett and Jason Thorne. Many Ontario provincial government employees, staff at the Environmental Assessment and Appeal Boards, and the Niagara Escarpment Commission also contributed their time and expertise to this report. Any errors, omissions or oversights in this report are the responsibility of the authors. Any opinions expressed are entirely those of the authors and do not necessarily represent the opinion of CIELAP, its funders, supporters or the members of its board. Canadian Institute for Environmental Law & Policy CHAPTER I Introduction 6 Ontario’s environment and the Common Sense Revolution: The fifth in a series 6 Q: What are the top 10 things wrong with environmental protection under the Common Sense Revolution? #1: Ministries and agencies who protect the environment have too few staff and too few funds to do their job 6 #2: The government loads environmental responsibilities on small municipalities on the one hand and limits their ability to protect the environment on the other 8 #3: The Common Sense Revolution thinks environmental protection is red tape 8 #4: New laws and regulations do not adequately protect the environment 9 #5: The government beefs up enforcement, but will not commit to prevention and planning 9 #6: Under the Common Sense Revolution, “protected areas” are not protected 10 #7: The provincial government refuses to act when it should to protect the environment 11 #8: Industry self-regulation and self-monitoring increase the risk of environmental damage 11 #9: Common Sense protects game animals and commercial fisheries, not wildlife 12 #10: The Revolution fumbles national and international environmental protection initiatives 12 CHAPTER 2 Water 15 I The Common Sense Revolution and water resources so far 15 1.1 Defunding 15 1.2 Deregulation 15 1.3 Devolution of responsibility 15 II The Walkerton tragedy 16 2.1 Downloading responsibility and privatization of service broke the chain of accountability; inspections reduced 16 2.2 Discovery of E. coli contamination in the Walkerton water supply 16 2.3 No reporting regulations for drinking water 17 2.4 Early warnings ignored 17 2.5 Public inquiry called 18 2.6 New drinking water regulation 18 2.7 Province promises to step up inspections 18 2.8 Other post-Walkerton initiatives 18 III Ontario’s water: How much is safe to take? 19 3.1 Ground and surface water 19 3.2 Water-taking permits and water exports 20 3.2.1 “Moratorium” on new water-removal permits 21 3.3 $6 million for groundwater monitoring 21 3.4 Restrictions on inter-basin transfers of water 21 3.5 Ontario takes the most Great Lakes water 22 IV Water pollution on the rise 22 4.1 The official version: Things have never been better 22 4.2 The real big picture: Fewer resources, less protection 23 4.2.1 Nutrient runoff from agricultural operations: The need for regulatory action 23 4.2.2 Consultation on intensive agricultural operations: Government reluctant to regulate 24 4.2.3 After Walkerton, government more amenable to regulation 24 4.2.4 New government agricultural initiatives: Healthy futures in agriculture 25 4.2.5 OMAFRA field offices closed 25 4.2.6 Changes to the pesticides regulations 25 4.3 Increased violations of water pollution standards 25 4.4 Pollution discharges to Ontario’s water: Increasing violations, one prosecution 25 4.5 The ministry’s response 25 4.6 Ontario is North America’s third worst water polluter 26 4.7 Water standards revisions: Adopting the federal standards 26 V Federal/provincial program to protect the Great Lakes: Uncertain future 27 Ontario’s Environment and the Common Sense Revolution — A Fifth Year Report 1 5.1 Expiration of the Canada-Ontario Agreement on the Great Lakes ecosystem 27 5.1.1 Importance of renewing the COA 27 5.2 Provincial initiatives to protect the Great Lakes and Ontario’s watersheds 27 VI Conservation authorities: The struggle to protect Ontario’s lakes and watersheds 27 6.1 Conservation authorities: Limitations on water protection initiatives, no new provincial funding 27 6.2 Hardest hit: Ability to protect local water resources 28 6.3 Conservation authorities and golf 29 VII Other water-related changes or decisions 29 7.1 Proposed changes to the Lakes and Rivers Improvement Act 29 7.2 More plans to privatize shelved after Walkerton 29 VIII Conclusion 29 CHAPTER 3 Environmental decision-making 30 I The Common Sense Revolution and environmental decision-making so far 30 1.1 Defunding 30 1.2 Deregulation 30 1.3 Devolution of responsibility 30 II Common Sense and environmental decision-making: The first mandate 31 III Environmental boards and tribunals 32 3.1 The Environmental Assessment and Appeal Boards – emphasizing speed 32 3.2 Chair of the board, committed to efficiency 32 3.3 The auditor’s report and the ministry’s response 34 3.4 The Ontario Municipal Board – controversial decisions appear to undermine municipal autonomy; process undermines public confidence in decision-making 34 3.5 The Niagara Escarpment Commission – decision-making shifts from “fulfilling the purpose of the plan” IV Officers of the legislature 35 4.1 The Environmental Commissioner of Ontario 35 4.1.1 Controversial appointment draws opposition and media fire 36 4.1.2 Issues first special report on groundwater and intensive farming for Walkerton hearing 36 4.1.3 Environmental Bill of Rights litigation rights workshop 36 4.2 The Information and Privacy Commissioner – the Freedom of Information Act, an essential tool comes under scrutiny by province 37 V Environmental protection, public safety and industry self-regulation 37 5.1 Environmental emergencies small and large – risks may be increasing while the ability to manage risks grows less 37 5.1.1 Methane leak at Safety-Kleen 38 5.1.2 Sulphuric acid spill on rail line to Adams Mine 38 5.1.3 Reduced spill reporting requirements 38 5.1.4 Hickson plant fire 38 5.2 Nuclear safety still an issue 39 5.3 The TSSA and REVA reach milestones in self-regulation, but Bill 42 does not pass 39 5.3.1 The TSSA 39 5.3.2 REVA 40 5.4 Program approvals 41 5.4.1 Approvals that expired during the report period 41 5.4.2 New approvals granted during the report period 41 5.4.3 Approvals proposed during the report period 41 VI The Ministry of the Environment 42 6.1 Standards setting 42 6.2 The SWAT team 43 6.3 “Fixing” the Ministry of the Environment 43 6.4 Red tape – and all that implies 44 VII Education 44 7.1 Partners in Air 45 2 Canadian Institute for Environmental Law & Policy 7.2 Hunting manuals for inner-city schools 45 7.3 Making the miners of tomorrow 45 VIII Conclusion 45 CHAPTER 4 Garbage and hazardous waste 46 I The Common Sense Revolution and garbage issues so far 46 1.1 Defunding 46 1.2 Deregulation 46 1.3 Downloading 46 II Common Sense and garbage 47 III Waste approvals 47 3.1 Landfill environmental assessment hearings 47 3.2 Routine waste facility applications 48 3.3 Less routine waste facility applications 48 3.3.1 Trans-Cycle application refused 48 3.3.2 PCB and other hazardous waste incineration in Cornwall 48 3.3.3 Rotary kiln to burn contaminated soil 49 IV In Taro’s wake: A six-point action plan on hazardous waste 49 4.1 The Taro landfill 49 4.2 The response – the six-part plan 50 4.2.1 New hazardous waste regulations 50 4.3 Ontario: Open for toxics 51 V Municipal garbage and recycling, Part I – the Waste Diversion Organization 51 5.1 Provincial Auditor criticizes Ontario waste management in 1997 51 5.2 The government’s response: The WDO 52 VI Municipal garbage and recycling, Part II – the Adams Mine 52 6.1 The environmental assessment hearing – decided in haste 52 6.2 Application for judicial