CEPA REVIEW
Consultations

Comments from the Canadian Water and Wastewater Association (CWWA) on issues of concern for Municipal Water and Wastewater Utilities with respect to CEPA 1999

Environment and Health Canada's scoping document positioned issues in CEPA 1999 from their perspectives. This document was reviewed and additions made as appropriate to address CWWA member concerns when considering improvements to CEPA 1999.

Issues of immediate concern to members of the Canadian Water and Wastewater Association, the national voice of water and wastewater utilities across Canada, include, but are not necessarily limited to the following issues. CWWA looks forward to continued involvement in the Parliamentary Review process as it unfolds from April 1, 2005 to Royal Assent and Proclamation of a new or revised CEPA in 2008.

CEPA "toxic"

• although the definition of CEPA toxic creates angst in the minds of the public through the use of the word "toxic", we believe that at this time it is likely the best definition possible. However, there must be distinction made as to the differences and/or similarities with "toxic" and "deleterious" substance as per the Fisheries Act to clarify responsibilities for municipal owners and operators discharging to the environment;
• CWWA believes there would be value in adding a category within the definition of CEPA toxic for substances that may be considered "environmentally harmful" but not necessarily "toxic" in the normal connotation of the word "toxic"; This could be useful in helping to distinguish appropriate control measures.
• the process whereby substances are chosen to undergo risk assessment and determination of their potential for Schedule 1 requires clarification. Single substance management imposes incredible burdens on municipal facilities that act, not as the polluters, but as the recipients of others' wastes;
• the determination of "toxicity" must be based on good science and "reasonable" interpretation - although laboratory protocols may be an initial determining instrument, unless they reflect environmental conditions, they can lead to inappropriate determinations. Across the board management for a substance that poses a risk under very specific conditions must be evaluated in development of a management instrument.

"pollution prevention"

• pollution prevention has different connotations for different sectors, pollution prevention being more encompassing for some than others and can be confused with "pollution control" a term commonly used in the municipal wastewater services sector. In respect to municipal waste water services, there needs to be clarification as to where in the wastewater collection, treatment and discharge elements of these systems the federal government intends to commence its application of CEPA and if they do proceed as far upstream as to dischargers to the sanitary system, what powers will municipalities be given to enforce in respect to dischargers to their systems?
• if CEPA is intended to reach up the system e.g. user responsibility rather than municipal responsibility, then instruments chosen for substance (or mixtures/whole effluents) must reflect this in scope, development, duration for planning and implementation;
• creation of new problems by undertaking another action (e.g. removal of ammonia may increase nitrogen levels that may be environmentally more detrimental than ammonia toxicity);

"reporting" , quality of information, and its use

• CWWA fully supports the objectives of reporting information to Environment Canada as this is the only way policies and legislation can be soundly based, however, a number of reporting requirements (e.g., NPRI, Environmental Emergency Regulations, and the proposed Pollution Prevention Planning Requirements) adds a considerable burden of paperwork on municipalities and when taken into account with requirements imposed by provincial and territorial jurisdictions has to be reduced; harmonization of reporting is proposed as with Ontario and the Federal government agreement on air emissions for NPRI;
• reporting for reporting sake is not supported. There must be QA/QC guidelines for reporting of data, common sense used in the timing of reporting for various sectors, rethinking of public access to results to avoid "out of context" use, and consideration to substance reporting and what it means e.g. total nitrogen versus nitrate.

"integration and/or harmonization "

• integration and harmonization between governments and programs would address time lines for municipal governments to comply on issues related to infrastructure to meet new instruments. This is particularly important when municipal planning horizons for infrastructure can be 20 years so funding and building can't take place to accommodate overly expeditious federal legislation;
• Time lines for action must take into account other requirements, such as environmental assessment and approvals applicable under other federal or provincial/territorial statures.

The following section follows the questions provided section by section in the consultation document.

SECTION 3: EFFECTIVE DECISION-MAKING

Q 3.1. What are your views on this issue?

Pollution prevention should go up system to the source, not strictly rest with the owner of the system (e.g. municipal wastewater systems are not the polluters)

We agree with the precautionary principle but it is often extremely expensive and non-technically practical when it comes to large systems or infrastructure needs

We'd like to have transparency but in a timely fashion, not after the fact as with some of the consultation and changes to the ammonia and chloramines notices

We support sound science but also urge some common sense in the approaches derived from scientific solutions, and a greater reliance on actual environmental observations and reality

Q 3.2. Should CEPA 1999 provide support for the objective of keeping-clean-areas-clean? If so, how?

A. we agree that CEPA should support pollution prevention, BMP and BAT but not at the risk of creating more paperwork (reporting). The paper burden for municipalities is extreme.

Q 3.3. Does work under CEPA 1999 adequately consider the precautionary principle and the most vulnerable populations?

A. vulnerable populations could be interpreted as municipal governments that are under the control of provinces. The federal government has been working with provinces but that doesn't necessarily roll down to the municipal level. We agree that the federal government should not work directly with municipalities but do have to consider them as extremely important in many issues.

Q 3.4. Does CEPA 1999 adequately enable effective transparency, access to information and opportunities for public participation?

A. it may adequately enable transparency but that does not mean it's happening in a timely fashion. Consultation is great but must mean true consultation, not "here it is whether you like it or not" Furthermore, the transparency must include elements of the regulatory impact policy with a greater determination of benefits and costs of any proposed measures.

Q 3.6. Should the Parliamentary review of the Act be increased from every five years to every seven years?

A. No, in this instance 5 years has been adequate to identify a number of problems with the implementation of CEPA 1999. With the shorter time frame we might be lucky enough to still have some corporate memory within the departments. In addition, the dynamics of legislative and policy changes within the federal/provincial/territorial framework suggest the maintenance of the five year review cycle.

Q 3.7. If Ministers choose the route of no further action under CEPA 1999 (i.e. a non-CEPA measure is pursued), should conditions be put in place to ensure effective accountability for protection of the environment and human health?

A. accountability is crucial for any situation but the challenge is to establish a balance between the reporting of accountability to the actual "doing" of protecting the environment and human health.

Q 3.8. If a non-CEPA 1999 measure is pursued, should CEPA 1999 play a backstop role? If so, how can this be done efficiently?

A. a safety net is required but not a duplication or extensive overlap of existing provincial/municipal activities.

Q 3.9. Should CEPA 1999 provide the flexibility to tailor administrative and equivalency agreements to appropriate circumstances?

A. Yes, in the environmental field, there are often legitimate differences of approach or expectations between agencies having common mandates. A strict interpretation of equivalency can restrict the ability to recognize provincial or territorial provisions or requirements - an element of considerable concern to the municipal water and wastewater sector because of the extent of existing provincial and territorial regulation. Because recognition of equivalency can reduce paper burdens the most flexible use of this provision is essential

Q 4.2. Is there a need to improve the reliability of information reported under NPRI and the administrative efficiency of the program? If so, what type of changes to CEPA 1999 would you recommend?

A. we believe that there is a useful purpose for the NPRI but do have concerns with the quality of information received (e.g. some emission factors used instead of real data), the quantity required of municipalities, the inappropriate use of information (e.g. out of context used to prosecute and misinform the public); the timeliness of reporting (e.g. industry and municipal reporting simultaneously when the latter receive substances from the former).

SECTION 5: SOUND SCIENCE AND RESEARCH

Q 5.1. How may current resources and capacity be used to further develop and coordinate scientific and research partnerships and activities, in order to advance scientific objectives which support decision-making under CEPA 1999?

A. get the Wastewater Technology Centre back to a world class facility and encourage a similar facility for drinking water technologies, ensure that the mandates include treatment of residuals whether from treatment processes or the general management of urban wastes - in all cases ensuring that the management of the centres includes appropriate guidance from the affected stakeholders and other policy and legislative departments. Get back to a science department rather than a policy machine. Use resources to achieve this.

Q 5.2. How can Environment Canada and Health Canada most effectively include traditional aboriginal knowledge in their decision-making processes?

A. bring aboriginal groups to the table sooner in discussions and encourage a compromise between the usual approaches to consultation (since this is not usually considered by First Nations)