Enforcement of federal environmental regulations—Pulp mill discharges
Petition: No. 19
Issue(s): Aboriginal affairs, compliance and enforcement, environmental assessment, fisheries, transport, and water
Petitioner(s): Alice Chambers
Date Received: 30 November 1998
Summary: The petitioner expressed concerns about discharges from the Pine Falls paper mill in Pine Falls, Manitoba. The petitioner requested an investigation of the mill's discharges and chemical spills, and raised questions about unsustainable forest practices and unauthorized construction of bridges to serve logging roads.
November 14, 1998
Mr. Brian Emmett
Commissioner of the Environment and Sustainable Development
240 Sparks Street
Dear Mr. Emmett:
I am writing to petition you under Sections 22 and 23 of the Auditor General Act to investigate federal government actions or lack thereof that I believe are detrimental to the implementation of sustainable development and to investigate the non-enforcement of environmental protection legislation by the federal Departments of Environment and Fisheries & Oceans with regard to the past and ongoing operations of the Pine Falls Paper Company (PFPC) in Pine Falls, Manitoba. It is my firm belief that the blind eye approach that has been taken by these departments, not just recently but also through past practices, has given the operators of the Pine Falls operation the idea that environmental protection legislation can be ignored at no particular cost, either social or economic, to the mill. This does not promote sustainable development. I live along the Winnipeg River upstream of the mill and I strongly believe that if the PFPC had been located just upstream of my community we would have had it cleaned up or closed down long ago. Instead it sits on the edge of the Fort Alexander Indian Reserve - Sagkeeng First Nation property on the Winnipeg River and although the patience of the people has been nothing short of remarkable, they have expressed many, many concerns over the years about the state of the river for drinking water, recreation, fisheries, as well as the loss of their traditional way of life from the forestry activities of PFPC. It is a huge, ongoing economic cost to the Aboriginal peoples, who live downstream of the mill and who have no confidence in the quality of their drinking water even after treatment, to pay for bottled water for drinking purposes.
This is the oldest newsprint mill in the Prairie provinces and is in its 71st year. It has changed ownership several times but, in more recent times, was an Abitibi-Price mill until 1994, when a partly employee, partly management, partly outside funders arranged to buy it out after Abitibi threatened to close it down. They had sucked the mill dry and were not prepared to do the renovations necessary to keep it functioning. The province made a loan of $30 million which has been repaid. Abitibi continued to market the newsprint for them until January of this year. Since they could hardly sell in the global market as a tiny company, another buyer was sought and, after a period of controversial negotiations, it was bought out early in 1998 by Tembec, a Quebec based company with a less than admirable environmental record and a debt of $1.3 billion (Financial Post, 17/3/98).
Over a number of years, I have spent many hours reading through documents and writing letters to both provincial and federal Ministers and departments about the activities of this company. At both levels, there is a reluctance to regulate, with an absolutely pathetic showing by the province of Manitoba. The exaggerated job numbers used by the mill, as well as an exaggerated portrayal of dependency on the mill within the region always manage to prevail over environmental, social and cultural concerns. PFPC has had every opportunity to change their manner of operations because they are the industry partner in the Manitoba Model Forest and have been exposed to many progressive forest management practices through this federally funded program. As a Board member and committee member of the Model Forest, I am well aware of the benefits that should have accrued to the forest and the other forest users from this program. Unfortunately, it is apparent that PFPC has learned some of the sustainable forest management vocabulary but has not learned how to apply it. A recently submitted PFPC 2-year forest management plan, EIS and Addendum are prime examples of how far they are from putting into practice what they should have learned.
I would like to focus on the following areas in this petition:
The failure of Environment Canada to charge PFPC for the non-acceptability of their Environmental Effects Monitoring (EEM) proposal and program under the PPER.
The failure of Fisheries & Oceans to enforce the Navigable Waters Protection Act for the building of many stream crossings by PFPC over navigable waters on the east side of Lake Winnipeg, with the result that many of these bridges are faulty from both a navigable waters and fisheries protection perspective, with unknown effects on the aquatic diversity and hydrology of the region. Now that at least 14 of these "existing" bridges are to be permitted, there has been no indication that either cumulative effects, the roads or the purposes for which the roads have been built will be part of the Environmental Assessment.
The failure of Environment Canada and Fisheries & Oceans to ensure that deleterious effluent was not polluting the Winnipeg River, through granting transitional authorizations to the mill without a complete review and without listening to the public concerns, and then using the scanty screenings to abdicate their role in participating in the provincial environmental licensing process for the mill (1992-96), while at the same time ignoring numerous spills and exceedances.
1. The failure of Environment Canada and Fisheries and Oceans to prosecute PFPC for non-compliance with section 28. (1) of the Pulp and Paper Effluent Regulations over the non-acceptability of their Environmental Effects Monitoring (EEM) studies which was a requirement for "every operator", not for every operator but one. I understand quite clearly that this was a first attempt at EEM and that there were flaws in the process and that mills succeeded to lesser and greater extents. However, in the end all but one submitted an acceptable EEM. It was quite clear from the outset that PFPC was not devoting the resources required to submit a thorough, professional proposal and follow-through program. It was clear that PFPC knew they had a requirement to do the EEM as they referred to it in a public newsletter (November 1994) in which they stated: "The Pine Falls mill must comply with Pulp and Paper Effluent Regulations under the Government of Canada Fisheries Act." As well, there were references to the EEM studies in the EIS that was submitted for the mill during the provincial environmental licensing process for the mill and became one of the non-enforced provision of their provincial licence.
There is no need to burden you with a great deal of correspondence to support my concerns - the technical review report and the letter that was attached to it, a message describing the need for a meeting with PFPC, and a series of letters to federal departments with responses should be enough to persuade you that there were legitimate grounds for charges to be laid. The arrogance of the mill to continue to suggest, even in 1997, that they should not fall under the PPER as their effluent improves the quality of the Winnipeg River is nothing short of remarkable. Enforcement of legislation designed to protect the health of our environment should not be dependent on a seeming lack of federal dollars. I can sympathize with the amount of time, effort and money it takes to pursue legal avenues but the alternative of turning a blind eye to a group of people with the attitudes and past history of the PFPC mill management is not acceptable. All it does is encourage them to continue in the ways which have worked for them to date - contempt for regulatory processes and disrespect for the environment and for people who are affected by their actions. I understand that the same faulty consulting firm that produced the first cycle proposal has been hired once more by PFPC for the second EEM cycle!!
Charges must be laid against PFPC for the non-acceptability of their Cycle 1 EEM studies. How can there ever be a hope of environmental protection in this country or a level playing field for industry if certain companies are exempt from regulations.
2. The non-enforcement of the Navigable Waters Protection Act is also a source of concern. Last fall, I had occasion to walk down a PFPC logging road in the eastern section of Nopiming Provincial Park (in Manitoba we have integrated resource management areas masquerading as parks) to see what was happening along it and to have a look at a bridge that had been built across the Manigotagan River, a highly prized wilderness canoeing/kayaking river that is also important for its ecological and cultural values. When I looked at the bridge design and the small amount of clearance I was pretty certain that Navigable Waters would never have permitted that bridge in that location. The Manigotagan was a focus of attention during the EA of PFPC's forestry plan and the recommendations from the Clean Environment Commission hearings were that no bridges were to be built over the Manigotagan. The province over-ruled the commission and the licence stated that a temporary bridge could be built with provisions for consultation with MB Environment, no hazard to canoeists, etc. When I called Coast Guard in Selkirk to ask whether PFPC had applied for a navigable waters permit for the bridge over the Manigotagan, it turned out that PFPC had not applied for a permit for that bridge or for any other stream crossings. PFPC was aware by that time, if not before, that such permits were required as they had put in an application for a bridge over the Bloodvein River. Coast Guard started the process of identifying PFPC's crossings over navigable waters, from an incomplete listing of some 25 crossings. It is not possible to know whether they now have a complete list as no one seems to have kept track of bridges or culverts. MNR does not keep such records and PFPC has removed a number of bridges this year.
At present, PFPC is going through a routine screening process in order to obtain permits after the fact for 14 of these bridges/culverts. Although I am quite familiar with our provincial review processes, I have not participated to any degree in the federal EA process. It is a most unsatisfactory, user unfriendly process. Trying to obtain any information about what is going on is almost impossible, even if one is prepared to spend a good deal of time trying to track it down. Ads were placed across 3 rural papers and not placed in the Winnipeg Free Press, even though 2/3 of the population of Manitoba lives in Winnipeg and many of them spend time in these public lands on the east side of Lake Winnipeg. The "information" on which the public was to offer comments was deposited as Railway deposits in the Winnipeg Land Titles office. It consisted only of a single, in-house drawing for each bridge, not even a covering letter. It cost $70 to obtain a copy of each of the drawings, another obstacle to public participation.
I have since had access to the screening documents (through the CEA Agency office in Winnipeg) prepared for 9 of these crossings by PFPC. These are generic screenings with wildlife being described as "bear, moose, deer, woodland caribou, and a variety of birds"! Cultural and heritage resources were not addressed even though the whole area has been used by Aboriginal peoples for thousands of years and there are many known sites and countless unknown sites. Fisheries data was limited to a list of 8 key species, taken from their 1991 forestry plan EIS. The fisheries data that was presented had been source of concern at that time. As well, they used the same information and references for 3 northern bridges although they are one watershed removed from the Manigotagan one. Worse that that, PPPC submitted photographs and drawings of 3 northern bridges, north of the Berens River, far beyond their FMLA, despite that fact that at least 2 of the 3 were washouts last fall! MNR is not sure of the status of the other crossing, however, it was the same design so it may also have washed out. Submitting false information should carry a penalty. The conclusions of the PFPC Screening documents are as one would expect, with nothing listed resulting in significant impacts. Although the drawings are far beyond the requirements for receiving provincial permission to build a bridge, they are not engineering drawings and many dimensions and other relevant information are missing. No mention was made of decommissioning plans, cumulative effects and only the bridge site was addressed. If they has applied for these permits in the usual fashion, i.e. before building the bridges, presumably they would have had to submit much more documentation, especially on potential impacts on fish and fish habitat and heritage resources than is being required to date for this "after" permitting process.
The purpose of all of these bridges/culverts is to link the logging roads which are built to access timber (pulp). This was the sole reason for building them. Given the recent federal court ruling in the Sunpine case, I and others have asked for a more complete EA of the dependent activities, roads, culverts and the logging, as well as for the cumulative impacts of so many roads and crossings in the same watershed. The spirit and intent of the Canadian Environmental Assessment Act must be enforced.
What is really important out of this bridges fiasco is the fact that because no navigable waters permits were sought, only the cursory provincial regional IRMT review was needed to obtain a road permit that included any bridge or culverts along the way. Small freehand sketches lacking in almost all dimensions were all that were required. As a result, most of the bridges were not designed with respect to other values and fisheries, other wildlife or cultural site information was not required. An independent review must be conducted of the cumulative effects of existing roads and bridges to assess the impacts on fish, fish habitat and, just as important, the hydrological effects of these projects. This is all the more important as PFPC plans an all-weather road, with branch roads and further logging roads, all along the east side of Lake Winnipeg.
I do believe that PFPC will now be applying for the required permits for future bridges. However, it was their responsibility to know what the applicable laws were that govern their activities on these public lands and waters. Page 3 of the Manitoba stream crossing guidelines in place when these unpermitted bridges were built lists the applicable federal and provincial legislation, including the Navigable Waters Protection Act. If, as PFPC states in the screening documents for these unpermitted bridges, there are no environmental impacts because they followed these same guidelines, I am not too confident that this is truly so!
Since PFPC has removed several bridges this year, they would not have had permission for decommissioning plans either. The whole business is a mess. One has to wonder how many other situations there are like this across the country. It is obvious that there needs to be much better communication between federal and provincial fisheries departments so that the federal expertise can be accessed by regional fisheries people and that the federal government must put both fiscal and human resources into finding out what is happening on the ground and in the waters across the country.
PFPC must be charged for building bridges without permits and for any associated fisheries violations with regard to these existing roads, culverts and bridges, as well as washouts. There are certainly constrictions, much treated wood was used, sedimentation is possible, etc. A number of the bridges present a hazard to the navigator as well. For once, they should be fined up to the maximum and directed to precipitate fisheries studies to determine the impacts of their activities.
3. Although under the 1971 PPER there was an expectation that all of the older mills would come under compliance voluntarily, most of the mills did not fulfill these expectations. PFPC, then Abitibi owned, was certainly one of those mills and no amount of cajoling from government was able to move them into installing pollution prevention measures. There were always excuses, either financial or otherwise, from Abitibi and governments at both levels never had the political will to ensure change. Once the May 7, 1992 revised PPER were in place, it was obvious that if the mill were to continue to operate, it would need at least one transitional authorization (TA). The uncertainty about the future of the mill was the excuse at that time for not proceeding with an effluent treatment plant. It is my view that if industry is not willing to protect the environment and human health, then perhaps they should not be operating. In years when the profits were good, Abitibi still never put an intensive effort into upgrades at the mill to reduce either air emissions or effluent impacts on human health and the environment.
Abitibi made application for a TA on May 20, 1992. I did not see the ad for the TA but I did attend the public consultation meeting in Fort Alexander (Sagkeeng First Nation Reserve) on February 18, 1993. It was a large meeting (about 325 people) with many people expressing their concerns about the mill and its activities. No research studies or information were presented to justify continued pollution of the river and effects on human health and social values. It was apparent that the decision had already been made and we were just going through the motions. Although I and presumably the rest of the public were unaware of this, federal Ministerial approval for transitional authorizations (TAs) had already been sought and gained (see reference 3.A-2). I found out about that letter long after the TAs had been granted. The initial TA was not awarded until May 7, 1993 so the mill operated in violation of the PPER from January 1, 1993 to May 7, 1993. The screening concluded that "allowing the mill to continue operating in 1993 would not have a significant incremental adverse impact on present environmental conditions." In a Questions and Answer section attached to the news release, it was stated that the conditions of the TA would be met and that "Any noncompliance will be addressed immediately." Public concerns about the environment were dismissed in favour of Abitibi jobs, thus Sagkeeng First Nation and environmental groups were naturally upset with the decision. (Wpg Free Press, 6/6/93,). I took notes at both consultation meetings and in reviewing them; it is really difficult to understand why no one was listening to the stories of the people, in particular the people from Sagkeeng.
The application was already in for an extension to the TA until the end of 1995 so it was clear that it was not just one more year of pollution, but three. A draft EARP Screening Document (21/6/93), using information from the TA review, concluded that there was no significant public concerns, a most troublesome statement given the expressed levels of public concern. To have over 300 people attend a meeting in this province is an astounding expression of concern!
The consultation meeting on the extension to the TA was held in Fort Alexander on December 20, 1993. Once again there was a full house and the meeting took all afternoon and began again after supper and went until late in the evening. Unfortunately the format was such that questions had to be left to the end so by the time the end had come, a number of people had given up and left or people that could be there only in the afternoon lost out on questioning. Many excuses were made for Abitibi's lack of progress. Chief Fontaine closed with a plea for recognition of the needs of his people and their fears and losses due to the mill operations. It was for DFO and EC to decide - human lives vs. jobs and taxability. It was quite apparent that the mill was going to receive its permission to continue to pollute the river, with the main consideration by Environment Canada being that the Winnipeg River has a large flow and the mill had been dispensing its pollutants for many years so a few more years would not make any difference. Of course there were no studies to support this. So much for the precautionary principle or an admission of the possibility of threshold values in cumulative effects assessment. No one can say for sure what the extra impacts were on an already impacted benthic community or whether the addition of continued excessive amounts of bark were building layers over fish spawning areas.
A January 17, 1994 notice of application for an extension of the TA was mailed out and the copy of the NOTICE stated that "It has been determined by Environment Canada and Fisheries and Oceans Canada that the potential environmental effects that may be caused by the continued discharge of effluent for a period up to December 31, 1995 are insignificant." The research (listed in a letter to the Honourable Christine Stewart, 13/10/97, listed as 1-15) on the effects of the Pine Falls mill on the receiving waters of the Winnipeg River apparently played no part in the screening decisions. In any case, absence of evidence is not evidence of absence and the precautionary principle should prevail. Comments would be received until February 10. Since the decision had already been made, it was hardly likely that letters would have any effect. As well, to only say "effluent" and not describe it at all (volumes, lethality, TSS, BOD) was hardly conducive to eliciting public concern and comment. It was a 1991 MB Environment Notice of Proposal for an EA of a new wood room and deinking plant which described PFPC's 38 000 cubic metres/day of acutely lethal effluent plus BOD, TSS and air emissions from the burning of coal and bark, that sparked my interest in the activities occurring downstream of where I live. Had that Notice simply stated "effluent", I would not have known whether to be concerned. The TA extension was authorized on February 28, 1994 so the mill operated once again in violation of the PPER from January 1 to February 28, 1994. On March 7, 1994, shortly after receiving the TA extension, the mill wrote EC asking for an amendment to increase the allowable BOD. Since one of the criticisms during the TA process had been that setting limits that were completely achievable for mills gave them no incentive to reduce pollution during the TA periods, it was unfortunate that the mill persuaded EC to increase the allowable BOD limit (15/7/94).
The screening document which described the history of the mill, included the proposed changes that were to come during the TA Period, including a new wood room which has never materialized. The new wood room would have resulted in much less woody material ending up in the effluent and thus in the river. This is an old, inefficient sulphite mill. With the deinking plant in place (100-150 tpd), which accounts for approximately 1/3 of the sludge, PFPC is depositing roughly 200 tonnes per day to a private landfill site, which was licensed by the province with no public review and is located between two fish bearing waters. Even though the sludges are quite wet, this gives some idea of the amount of woody material that was entering the Winnipeg River.
Shortly thereafter, March 15, 1994, there was another meeting in Fort Alexander - this time to discuss a large pesticide spill that went unreported for three days, long after most of it would have washed down river. Given the level of concern from Sagkeeng over their water supply and knowing from recent work by Dr. Lyle Lockhart et al, DFO, Winnipeg, that the effluent plume followed the south shore of the river (water intake area for Sagkeeng's water treatment plant) and did not disperse immediately, it was quite unforgivable that the spill went unreported. It was another example of disrespect for the people living downstream. There was no one present from EC at this meeting but Peter Rogers, from Health Canada in Winnipeg, would confirm that the peoples' concerns were belittled by PFPC through comments such as we are sure that all of you keep Javex in your houses, coffee can be toxic, etc. There was no apology, no regrets expressed. Two years later, their environmental control person, Kevin Allan, was still denying that Busan was a pesticide!
The example of a reportable spill in their emergency handbook at that time and in a later revision was 10 litres of Busan and they had previously reported spills of Busan. This time they waited and discussed their options after a spill of 812 litres of Busan. EC did take them to court over the non-reporting and included another recent dye spill. A fine of only $15, 000 plus a payment order of $35 000 towards research were finally awarded to Abitibi on February 22, 1995. A number of charges were dropped. It was I believe a frustrating experience for federal officials as Abitibi kept postponing dates or not showing up. There were no provincial charges and apart from bad publicity, the fine itself was small enough to be only pesky. Reports at the time of the spill indicated that maximum fines could have been between $300 000 to $800 000. This was the only infraction for which the federal government laid charges, although there were many other instances when charges could have been laid. The provincial government has never taken them to court for any infractions. Even when the 1995 mill EIS showed that the mill had never had a water withdrawal licence, it was Sagkeeng and not the province that charged Abitibi and took them to court and obviously won - it was a clear infraction.
During the period from 1993-1995, there were very many spills and exceedances but no other charges were ever laid. I will include the list of these, along with the notes confirming the problems during that time from L. Strachan, Director of Environmental Approvals for MB, and Barry Briscoe, Manager, Environmental Protection in Winnipeg. It is more than probable that other charges should have been laid and I know for certain that there was significant discussion about charging them for a caustic spill on July 16-17, 1995. So, even though it had been stated that "Any noncompliance will be addressed immediately", that was certainly not the case. PFPC continued to operate in a cavalier fashion, with little regard to careful handling of materials or the environment, with complete impunity. This old mill uses some 116 000 litres of oil annually and reports of oil on the surface of the water or coating bottoms of boats or peoples' rubber boots were not uncommon. When one considers that 1 litre of oil has the capacity to pollute 1 million litres of water, this is a considerable impact, one that should not have been ignored.
It is truly unfortunate and, in my opinion, an abdication of federal responsibilities under the constitution, that the federal departments of Environment and Fisheries & Oceans did not participate openly and fully in the EA of the PFPC mill, using the excuse that they had just gone through the TA process. This was especially true when the science behind the TA reviews was paltry and certainly did not cover all aspects of the mill or its proposed developments. The outcome would have been a much more thorough review and an improved final licence. Whenever we have been able to persuade the provincial and federal governments to allow the federal departments to appear, it has definitely been beneficial to the process and to the resulting environmental licence. Even with the Canada-Manitoba Harmonization Agreement in place, this has definitely not ensured federal involvement throughout the process, nor provincial involvement in federal reviews (a whole other area of concern). A DFO biologist did submit the questions of his student who was doing her thesis on describing the effluent plume and the effects on fish of the effluent, at that time. There was no official DFO or EC participation. DIAND did participate, requested public hearings, and appealed both the lack of hearings and the licence that was issued. Health Canada did send a letter of concern but it was sent too late to be included in the review process. All of the written concerns fell on deaf ears. It could have been politically embarrassing to the provincial government to have the public discuss the environmental shortcomings of this mill. PFPC appealed the EIS guidelines several times and succeeded in removing any references to their emissions - from burning an average of 241 tonnes per day of coal plus 50-60 tonnes of bark, with no scrubbers or precipitators and ancient boilers. Their 1979 emissions licence has no requirement to report so there have been no reports since 1983 and the province has no intention of opening up that licence even though PFPC is now planning to dry and burn their sludges because the odour and possible leakage from the landfill site has caused many concerns in the region.
I would like your office to investigate the review process that took place in awarding PFPC the TA and TA extension, the lack of charges for the numerous spills and exceedances which occurred during the period of the Transitional Authorizations, and the lack of participation in the provincial EA of the mill, even though the Canada-Manitoba Harmonization Agreement was in place at the time of the review of the mill EIS and there were definitely federal triggers. It is hardly surprising that people like me, who are very concerned about what is happening to our environment now and the long term cumulative effects of our actions, are not impressed by the idea of devolution of regulatory powers to the provinces or are not thrilled about the idea of harmonization.
Provincial departments in provinces like mine need all of the support they can get from their federal counterparts. There are many qualified and conscientious people working in all government departments who are afraid to speak their minds for fear of losing their jobs. From the position of protecting the public good, this is not acceptable. The MB government has probably spent more money than most on talking and writing about sustainable development but implementation is non-existent. If the federal government is serious about promoting and implementing sustainable development, they must show it through their actions. I believe that the only way that companies like PFPC will change is if their actions or lack of actions result in economic disbenefits, through fines and negative publicity. I attended a conference on Sustainable Development of Forests organized by the Centres of Excellence group at the U of Alberta. A researcher from the World Bank gave a presentation on some research he was doing on enforcement of regulations dependent on who was living downstream. His results at that time showed that enforcement was less when Aboriginal people lived downstream than when white communities lived downstream. To me, much of the lack of enforcement could be interpreted as environmental racism, not purposefully but just because Aboriginal peoples are much more patient that the rest of us, and it is still the squeaky wheel that gets the attention. They are still terribly concerned about their water, lands and the wildlife because of past and ongoing activities in which they have no part, even though they bear the direct impacts.
I am hopeful that you will pursue the above areas of deficiency on behalf of nature and society. When PFPC was trying to come up with a buy-out plan, they submitted a draft letter of assurances to both provincial and federal governments to sign that would let Abitibi off the hook for any future liabilities (a whole other topic). I will close with the response of a provincial employee who has had many dealings with PFPC over many years (I will not name him as we mainly have no whistleblower protection in this province but I can provide you with the documentation):
"The record to date of the unequalled tolerance of our Department and that of Environment Canada with Abitibi, despite the dismal environmental status of the Abitibi-Price (Pine Falls) operation, should be ample comfort to the lenders".
If ever there was a case for a complete environmental audit, the PFPC operation would be it, unless this industry presents an example of how business is commonly conducted across this country. The lack of monitoring and enforcement is unacceptable and certainly does not serve the public interest. I look forward to hearing from your office.
[Original signed by Alice Chambers]
10 Burrows Road
21 April 1999
Ms. Alice Chambers
10 Burrows Road
Dear Ms. Chambers:
In accordance with Section 22(3) of the Auditor General Act, I am responding to your petition of November 14, 1998, in which you express concerns about a perceived lack of enforcement and adequate environmental assessment respecting the Pine Falls Paper Company (PFPC) in Manitoba. The concerns you raise that deal with the enforcement of the Navigable Waters Protection Act will be addressed by my colleague the Honourable David Anderson, Minister of Fisheries and Oceans, as he is responsible for the administration of that legislation.
My department is committed to protecting Canada's environment and seeks every opportunity to promote sustainable development. With respect to regulatory initiatives, Environment Canada strives to achieve compliance with all of its regulations. Enforcement is only one tool available to the Department to obtain compliance and it is used in appropriate circumstances. In this context, I would like to address your first concern dealing with Environment Canada's decision not to lay charges in PFPC's instance for non-acceptability of its Environmental Effects Monitoring (EEM) proposal and program under the Pulp and Paper Effluent Regulations (PPER) of the Fisheries Act.
I believe that the November 14, 1997 letter from Mr. Jim Vollmershausen to you, which is included with your attachments, explains why Environment Canada did not proceed to lay charges under the Fisheries Act in PFPC's case. It is a decision that was reached after considerable deliberation on the facts and circumstances at that time.
I would like to take this opportunity to elaborate on some more recent activities in this area. As you may be aware, Environment Canada produced a revised EEM Annex to the Regulations in 1998, as a result of workshops held in the fall of 1997 with various stakeholders. All mills across Canada, including PFPC, have been kept informed. To further ensure that all of the objectives of the EEM program are met, the Prairie and Northern Region of Environment Canada has had a full-time EEM co-ordinator since January 1998. PFPC's new environment director has already been in contact with the regional EEM coordinator to determine how PFPC will meet all outstanding requirements from Cycle 1, and produce a Cycle 2 study design that will meet the regulatory requirements of the EEM program.
In your petition, you bring into question the integrity of the federal government's actions with regard to the safeguarding of the Winnipeg River insofar as these activities relate to PFPC and the deposit of deleterious effluent. From the numerous attachments to your petition, it is clear that you have thoroughly reviewed the comprehensive processes that were followed and the steps taken by Environment Canada officials to set out the basis for a course of action.
The crux of your petition in this area appears to be that you believe a transitional authorization and extension should not have been issued to the Pine Falls mill. Based on the information available at the time, the Department believed that compliance could be achieved with the installation of a secondary treatment system.
When the PPER were amended in 1992, existing mills were provided an opportunity to come into compliance with the more stringent regulatory limits during a maximum three-year period, subject to no significant adverse impacts occurring, as determined pursuant to the Environmental Assessment and Review Process Guidelines Order. The transitional authorization process recognized that there were significant costs to the pulp and paper industry to comply with the new standards and the fact that some facilities, like PFPC, would need to design and construct major works and undertakings in order to be able to comply with the Regulations' more stringent limits.
The departments of the Environment and of Fisheries and Oceans conducted a complete review and assessment of the potential adverse environmental impacts of allowing the mill to continue to operate while it made efforts to come into compliance with the PPER. We consulted extensively with various stakeholders. The fact that the conclusion and screening decisions differed from those preferred by some of the stakeholders does not invalidate the process followed by the departments. The issuance of both the transitional authorization and extension occurred after the regulatory deadlines of December 31, 1992 and December 31, 1993, because the departments were not prepared to shorten the public consultation process, which took longer than expected to complete.
Pursuant to the Environmental Assessment and Review Process Guidelines Order, the project was scoped for the transitional authorization and extension as the continued discharge of effluent in excess of the prescribed standards under the PPER until December 31, 1993 and December 31, 1995 respectively. The assessment found that the potential adverse environmental impacts would be insignificant; therefore, the transitional authorization and subsequent extension were issued. As a consequence of this federal review, there was no logical reason for Environment Canada to formally participate in the provincial environmental assessment review process of the mill that followed. The Department was consulted by the Manitoba Environment Ministry to ensure that the requirements of the PPER were accurately reflected in the province's licence to PFPC.
You also allege that Environment Canada ignored numerous spills and exceedances by the mill. This opinion seems to be based on the fact that the Department prosecuted the mill for one spill, whereas the company had several other spills of various substances during the same general time frame.
As I stated previously, my department's objective with respect to regulatory initiatives is to achieve compliance with all of its regulations. There are numerous considerations that are taken into account each time there is a suspected violation.
First, there is the nature of the violation. This includes consideration of the seriousness of the harm or potential harm, the intent of the alleged violator, whether this is a repeated occurrence and whether there have been attempts to conceal information or otherwise subvert the objectives and requirements of the Act. Second is the effectiveness in achieving the desired result with the violator. The desired result is compliance with the Act within the shortest possible time and with no further occurrence of violation. Factors to be considered include the violator's history of compliance with the Act, willingness to co-operate with enforcement officials, and evidence of corrective action already undertaken. Third is consistency in enforcement. Enforcement officials intend to achieve consistency in their responses to violations. Accordingly, officials will consider how similar situations were handled when deciding what enforcement action to take. Based on these considerations, the Department determined that prosecution of the company over the Busan 52 spill was warranted, while in other cases it was not.
In conclusion, after thoroughly evaluating your allegations and reviewing the extensive files that the Department has on these issues, I maintain that Environment Canada's actions were consistent with the concept of sustainable development and the integration of economic development initiatives with sound environmental conservation and protection.
I appreciate your having taken the time to write.
[Original signed by Christine Stewart, Minister of the Environment]
Christine S. Stewart
23 April 1999
Ms. Alice Chambers
10 Burrows Road
Dear Ms. Chambers:
This is further to my tatter of December 31, 1998, acknowledging your petition of November 14, 1998, pursuant to Sections 22 and 23 of the Auditor General Act, regarding Fisheries and Ocean Canada's (DFO) past involvement with Pine Falls Paper Company (PFPC) in Manitoba.
In your petition, you allege:
The failure of Environment Canada to charge PFPC for the non-acceptability of their Environmental Effects Monitoring (EEM) proposal and program under the PPER.
The failure of the Department of Fisheries and Oceans to enforce the Navigable Waver Protection Act and the Fisheries Act, and to conduct a comprehensive environmental assessment related to several stream crossings built by PFPC over navigable waters on the east side of Lake Winnipeg.
The failure of Environment Canada and the Department of Fisheries and Oceans to ensure that deleterious effluent is not polluting the Winnipeg River, resulting from the issuance of transitional authorizations under the Pulp arid Paper Effluent Regulations.
The Office of the Auditor General and the Commissioner of the Environment and Sustainable Development has forwarded to me the second and third issues which you identified. The first and third issues have been forwarded to the Honourable Christine Stewart, Minister of Environment. As you are aware, Minister Stewart and Environment Canada have responsibility for administering the pollution provisions of the Fisheries Act. Minister Stewart will, therefore, be responding to the first and third issues.
The following addresses the issue of alleged non-enforcement of the Navigable Waters Protection Act (NWPA) and the Fishers Act, and the perceived lack of comprehensive environmental assessments of the bridge crossings.
The Canadian Coast Guard (CCG) became aware of the existing bridges through a complaint registered by you in September 1997. CCG subsequently notified the PFPC of the requirements of the NWPA and of CCG's jurisdiction for navigable waters. The purpose of the NWPA is to ensure the public right of navigation and, when appropriate, to authorize an interference to this right. Following CCG's inspection of twenty six crossings within PFPC's forest management licence area, it was determined that NWPA approvals would be required for fourteen existing bridges, as the streams over which they were constructed were deemed navigable. PFPC applied under subsection 6(4) of the NWPA in March 1998. You should be aware that the prosecution or fining of an owner of a work which was commenced without authority of the Minister is not automatic. For example, only after an order has been given under paragraph 6(1)(a) or 6(1)(c) of the NWPA, and the owner of the work has not followed it, can prosecution follow under the NWPA. The making of such an order is discretionary on the part of the Minister or his/her designated representative and generally is invoked when the work is threatening the safety of navigation. In this case, CCG has determined that these bridges do not pose a hazard to navigation. As PFPC has been cooperative throughout the approval process and has complied with the requirements of the CCG, it has been determined that no further action is warranted.
The NWPA requires that plans (drawings depicting the works) be deposited in the local Lands Registry Office. The plans that were received in support of the applications provided sufficient information to allow assessment and processing under the NWPA. The Lands Registry Office is a provincial facility and is operated under provincial legislation. Concerns regarding fees for services levied by the Registry Office should be taken up with the provincial agency responsible for the Office. The NWPA also requires that the project be advertised in the Canada Gazette and two local newspapers. Your concern that projects should be advertised in Winnipeg, where two-thirds of the province's population reside, is well taken. The Department is undertaking to amend all sections of the NWPA in the future including the provisions related to the deposition of plans, and notification in local newspapers. Public input will also be sought into proposed amendments to the NWPA. Your comments will be kept on record for input into the amendment process. You may also wish to express your concerns during the public consultation phase of the amendment process.
It should be noted that the deposition of plans in the provincial Lands Registry Office is a requirement of the NWPA and is not meant to be part of the public registry under the Canadian Environmental Assessment Act (CEAA). Public registry documents, i.e., documents relative to the environmental assessment, can be obtained by contacting either the DFO official conducting the environmental assessment or the contact identified on the Federal Environmental Assessment Index (FEAI) [Jeff Stein, Manager, Habitat Management, Winnipeg at (204) 983-5164] which is contained on the Canadian Environmental Assessment Agency's website at www.ceaa.gc.ca. It is my understanding that the bridge plans which were deposited in the provincial Lands Registry Office were also available through DFO's public registry for these projects.
Of the fourteen existing bridges over navigable waters requiring NWPA approvals, five of these were built before June 22, 1984. Subsection 74(4) of CEAA Indicates that, "when the construction or operation of a physical work or the carrying out of a physical activity was initiated before June 27, 1984, this Act shall not apply in respect of the issuance or renewal of a licence, permit, approval or other action under a prescribed provision in respect of the project unless the issuance or renewals entails a modification, decommissioning, abandonment or other alteration to the project, in whole or in part" As a result, CEAA does not require the conduct of environmental assessments on these five bridges and PFPC has subsequently received NWPA approvals for these bridges. However, the nine existing bridges, built after June 22, 1984, do require the conduct of CEAA environmental assessments. Eight have been completed arid one?the environmental assessment of the Manigotagan Bridge?is ongoing. It is my understanding that NWPA approvals have since been issued for all the bridges, except the Manigotagan Bridge.
You have also expressed concerns about difficulties encountered in participating in the federal environmental assessment process. As you may be aware, CEAA does provide opportunities for public comment and participation during an environmental assessment. However, it dues not require that a responsible authority (a federal authority responsible for undertaking an environmental assessment) undertake public consultation for projects which are reviewed at the screening level. Subsection 18(3) of CEAA indicates that where, "the responsible authority is of the opinion that public participation in the screening of a project is appropriate in the circumstances, or where required by regulation, the responsible authority shall give the public notice and an opportunity to examine and comment on the screening report and on any record that has been filed in the public registry established in respect of the project".
Fisheries arid Oceans Canada did include a notification in the NWPA advertising that a CEAA review was ongoing. Based upon comments received during the conduct of screenings of the existing bridges and comments received during the NWPA advertising period, it was determined that public participation did not appear to be required. Any comments received relating to the environmental assessments of these bridges, in whatever form, were considered, as per section 16 of CEAA. It is my understanding that you were in contact with DFO officials during the screenings of these nine existing bridges, and that all of the information you requested was provided during the course of the environmental assessments.
The screening reports for all nine of the crossings to which you refer were prepared (or in the case of the Manigotagan Bridge, is being prepared) using, in part, information supplied by PFPC in support of its applications. I understand that the documents which you saw in the Canadian Environmental Assessment Agency's office in Winnipeg were prepared by PFPC in support of their NWPA applications and CEAA screenings. The information, including an identification of biological and heritage resources, was forwarded for review and comment to other federal departments, including Environment Canada, the Department of Health, the Department of Indian Affairs and Northern Development and Parks Canada, as well as to the Habitat Management Division of DFO. The scope of project for each of the nine existing bridges was identified as the maintenance and decommissioning of the bridges, including associated approaches and related works, accesses, storage areas or other undertakings directly associated with these works. Federal departments were requested to identify their concerns and requirements for mitigation directly related to this project. This advice is summarized in the resulting screening report for each bridge. You correctly indicate that had PFPC applied for NWPA permits prior to construction of the bridges, an environmental assessment of bridge construction would have been included in the screenings. CEAA includes in the definition of project proposed works and activities associated with a physical work. Since the bridges had already been constructed, DFO was not required to assess the impacts of construction. Attempting to assess the impacts of construction, including those on fish and fish habitat, would have been particularly difficult, if not impossible, after the fact.
You have also mentioned the Federal Court decision in the Sunpine case and its effect on CEAA environmental assessments. As you may be aware, Judge Gibson, in his decision on Sunpine, did not disagree with DFO's scope of project. As such, DFO's scope of project for PFPC's existing bridges is consistent with his decision. However, with regard to the scope of environmental assessment, the Government of Canada is appealing the Sunpine decision in order to clarify issues arising from that decision.
With respect to the Maaigotagan River crossing, it appears that the current bridge may be acceptable, from a navigation perspective, provided that a portage, with appropriate signage is provided around the structure. I understand that a portage around the rapids has existed at the bridge location for many years. Since the environmental assessment of the Manigotagan Bridge is still ongoing, I invite you to provide any information or comments your have on this assessment to the regional Habitat Management office in Winnipeg.
You have raised concerns with enforcement of the Fisheries Act regarding these existing roads, culverts and bridges, as well as washouts within PFPC's forest management area. Given the timeframe between the construction of these works and when DFO became aware of any potential impacts to fish habitat, it would be difficult to prove that the harmful alteration, disruption or destruction of fish habitat took place at the sites, It is through the more recent environmental assessments that DFO hopes to address any future potential fish habitat impacts associated with these bridges through identified mitigation measures for maintenance and decommissioning. On a more general note, to address potential fish habitat impacts associated with new developments, DFO officials participate in the environmental review of projects in Manitoba which lave the potential to impact on fish and fish habitat.
In Manitoba, Conservation Officers of that province are designated as Fishery Officers for the purposes of enforcing section 35 of the Fisheries Act. I recommend you contact the provincial office nearest you relating to any situation you feel may be a harmful alteration, destruction or disruption of fish habitat, which may require inspection or investigation.
Thank you for bringing these issues to my attention.
[Original signed by David Anderson, Minister of Fisheries and Oceans]
David Anderson, P.C., M.P.