Municipal wastewater discharges and pollution of the marine environment
Petition: No. 112
Issue(s): Biological diversity, compliance and enforcement, human health/environmental health, international cooperation, toxic substances, waste management, and water
Petitioner(s): Georgia Strait Alliance & United Fisherman and Allied Workers Union (represented by the Sierra Legal Defence Fund)
Date Received: 27 April 2004
Summary: This petition concerns pollution of the marine environment. The petitioners contend that the federal government is failing to effectively control harmful discharges of municipal wastewater into the ocean. They allege that some of these discharges, due to inadequate treatment, may contain persistent organic pollutants such as PCBs. The petitioners ask the federal government to take steps to address this problem.
April 26, 2004
Ms. Sheila Fraser
Auditor General of Canada
Ms. Johanne Gélinas
Commissioner of the Environment and Sustainable Development
Office of the Auditor General of Canada and the
Commissioner of the Environment and Sustainable Development
240 Sparks Street
K1A 0G6 Canada
Dear Ms. Fraser and Gélinas:
Re: Persistent organic pollutants in wastewater
The attached petition and supporting documentation* regarding persistent organic pollutants in wastewater is made on behalf of our clients, Georgia Strait Alliance and United Fishermen and Allied Workers Union-CAW, pursuant to the provision of s. 22 of the Auditor General Act.
Together, these documents* illustrate that the Federal Government is failing to effectively address the pollution of the marine environment by persistent organic pollutants including PCBs. These pollutants and others are contributing to the contamination of both the marine environment and the marine life dependent upon it. The ongoing failure to address this pollution is in violation of national laws and international agreements intended to protect the marine environment from land based pollution. These include the federal Fisheries Act, Canada's Ocean's Strategy drafted pursuant to the federal Ocean's Act, the Stockholm Convention on Persistent Organic Pollutants, Declaration on Protection of the Marine Environment from Land-Based Activities (1995) and marine pollutions provisions of the United Nations Convention on the Law of the Sea.
The Petitioners rely on the specific example of the discharge of PCB-laden sewage from Victoria. This is only an example of a wider problem. Many coastal communities in British Columbia, including Vancouver (545,671 population), [name of city removed at the request of the petitioner on December 8, 2004] and Nanaimo (73,000 population) dump their sewage into to the ocean with only preliminary or primary sewage treatment. Additionally, contamination of the marine environment through wastewater discharge is also a problem on the Atlantic Coast where most large communities lack anything beyond primary sewage treatment.
Information regarding the discharge of PCB-laden sewage from Victoria results from an ongoing investigation conducted by Sierra Legal on behalf of the petitioners. The results of this ongoing investigation have been communicated periodically to the Minister of Environment. In the course of this communication the Minister made a specific commitment to take certain actions to address this problem by March 2002. To the best of our knowledge none of the actions promised by the Minister have been taken by the Department of Environment. We know of no other actions taken to address this problem that might have been taken in lieu of those specific commitments. Therefore, in addition to submitting this petition to the Ministers of Environment, Fisheries and Oceans and Western Economic Diversification pursuant to s. 22 of the Act, we further respectfully request the Commissioner or the Auditor General to audit the conduct of Department of Environment to evaluate the gulf between the statements of Minister of the Environment and the inaction of the department in addressing this issue.
If you require any further information, or would like to meet or discuss this matter, please do not hesitate to contact Margot Venton at 604-685-5618 ext. 245.
Yours very truly
[Original signed by Margot Venton]
[Original signed by John Werring]
[Original signed by Mitch Anderson]
Sierra Legal Defence Fund
214-131 Water Street
Vancouver, British Columbia
ENVIRONMENTAL PETITION TO THE AUDITOR GENERAL
Re: Persistent Organic Pollutants in wastewater
April 26, 2004
To: The Hon. Sheila Fraser
Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Office of the Auditor General and the Commissioner of the Environment and
240 Sparks St.
And to: The Hon. David Anderson
Minister of the Environment
10 Wellington St.
And to: The Hon. Geoff Regan
Minister, Fisheries and Oceans Canada
Parliament Buildings, Wellington Street
And to:The Hon. Rey Pagtakhan
Minister of Western Economic Diversification
Suite 500 - 141 Laurier Avenue West
Georgia Strait Alliance
Suite 607 - 207 West Hastings Street
Vancouver British Columbia
United Fishermen and Allied Workers Union - CAW
326 12th Street
New Westminster, British Columbia
Margot Venton, Staff Lawyer
John Werring, Staff Scientist, R.P. Bio.
Mitch Anderson, Staff Scientist, P. Ag.
Sierra Legal Defence Fund
214-131 Water Street
Tel. 604-685-5618 ext 245
PETITION TO THE AUDITOR GENERAL
This is a formal petition under the Auditor General Act requesting that:
- the Minister of the Environment confirm and ensure that the provisions of the Canadian Environmental Protection Act 1999, S.C. 1999, c. 33 ("CEPA") and its regulations apply to the discharge of wastewater (also referred to in this document as "sewage") into the marine environment;
- the Minister of Environment establish a legally binding standard for polychlorinated biphenyls ("PCBs") in wastewater that is consistent with Canada's provincial and national standards, and Canada's international commitments under the Stockholm Convention on Persistent Organic Pollutants (hereinafter referred to as the "POPs Convention"), and the Declaration on Protection of the Marine Environment from Land-Based Activities (1995);
- the Minister of Environment use his authority under CEPA to prevent, control or correct water pollution from provincial or municipal sources, to compel the Province of British Columbia and Capitol Regional District (CRD), to amend the CRD's recently approved "Core Area Liquid Waste Management Plan", to address wastewater contamination in a way that meets Canada's international commitment to eliminate and destroy persistent organic pollutants (hereinafter referred to as "POPs") in the waste stream; Canada's commitment to address pollution of the marine environment from sewage as part of Canada's Programme on Marine Pollution from Land Based Activities; Canada's national Oceans Strategy drafted pursuant to the federal Oceans Act, S.C. 1996, c. 31; and the pollution prevention provisions of the United Nations Convention on the Law of the Sea, Art. 207 (pollution from land based sources);
- the Minister of Western Economic Diversification allocate budget for the purpose of introducing secondary sewage treatment for all coastal communities in Western Canada, thereby allowing Canada to implement its domestic and international commitments to eliminate PCBs from wastewater and reduce pollution of the marine environment through sewage discharge;
- the Minister of Environment enforce the Fisheries Act, R.S. 1985, c. F-14, against municipalities which continue to discharge POPs including PCBs into the marine environment through wastewater in contravention of section 36 of the Fisheries Act;
- the Ministers of the Environment and Fisheries and Oceans initiate a meaningful investigation into the ongoing failure to enforce the pollution prevention provisions of the Fisheries Act in the context of contaminated wastewater discharge into the marine environment, in particular waste water discharge from the CRD; and
- the Ministers of the Environment and Fisheries and Oceans investigate the possible transboundary pollution of the Strait of Juan de Fuca from wastewater emanating from Canadian sources.
While often described as the duty of all and therefore the priority of none, protection of the marine environment from pollution is an established area of federal responsibility1. The Petitioners are concerned about the federal government's ongoing failure to effectively control the discharge of harmful contaminants, particularly persistent organic pollutants including PCBs, into the marine environment through wastewater.
The Petitioners submit that the evidence accompanying this submission suggests that this type of point source pollution is contributing to the contamination of both the marine environment and the marine life dependent upon it, including species listed pursuant to the Species at Risk Act, S.C. 2002, c. 29, such as the Southern Resident population of killer whales (the "Southern Resident Killer Whales").
In 2001 the Committee on the Status of Endangered Wildlife in Canada ("COSEWIC") declared that the Southern Resident Killer Whales were an endangered species due in part to their significant level of organic pollutants including PCBs detected in their bodies2. Levels of PCBs in these animals are so high that they are considered by experts to be among the most contaminated animals on earth. It is projected that if recent trends in population decline continue, the whales would be gone in as few as 33 to as many as 121 years3.
Wastewater contamination may also be contributing to transboundary pollution of the waters of Juan de Fuca Strait in the United States.
Canada has passed domestic laws, signed international conventions, and adopted national standards and strategies which all purport to prohibit this kind of pollution of the marine environment including: the pollution prevention pollutions of the Fisheries Act; CEPA (which include provisions specifically related to transboundary pollution); Canada's Oceans Strategy (2002), drafted pursuant to the provisions of the Oceans Act and the United Nations Convention on the Law of the Sea which Canada ratified in November 1993; Canada's Programme on Marine Pollution from Land Based Activities, drafted pursuant to the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities which Canada signed in 1995; Canada's commitments under the Stockholm Convention on Persistent Organic Pollutants which Canada simultaneously signed and ratified in May of 2001; and national water quality guidelines for the protection of the marine environment. The following example illustrates that none of these many conventions, laws, strategies, action plans, or guidelines are being implemented in a way that actually protects the marine environment from contaminated wastewater.
The Petitioners rely on the specific example of the discharge of PCB-laden sewage from Victoria. This is only an example of a wider problem. Many coastal communities in British Columbia, including Vancouver (545,671 population), [name of city removed at the request of the petitioner on December 8, 2004] and Nanaimo (73,000 population) dump their sewage into to the ocean with only preliminary4 or primary5 sewage treatment. Additionally, contamination of the marine environment through wastewater discharge is also a problem on the Atlantic Coast where most large communities lack anything beyond primary sewage treatment.
Finally, while this petition focuses on a particular contaminant that is very harmful, we stress that many harmful contaminants are present in untreated wastewater. For example, documents obtained from the Capital Regional District of Victoria under the British Columbia Freedom of Information and Privacy Act show that over a two year period the CRD sewage outfalls discharged approximately 292,000 kg of oil and grease, 17,400 kg of zinc, 9,000 kg of copper, 2,560 kg of lead, 620 kg of silver, 74 kg of cadmium, 24.2 kg of mercury, 37 kg of toxic mutagenic and carcinogenic polycyclic aromatic hydrocarbons (PAH's) and 290 kg of potentially toxic halogenated compounds. The proposed standards, investigations, and enforcement actions, requested in this petition would serve to assist in controlling the release of these associated contaminants.
2.0 Facts on which this petition is based
2.1 Sampling Data
In August 2001 Sierra Legal Defence Fund staff scientist John Werring arranged for independent samples to be taken of waste water from two sewage treatment plants (STPs) for the City of Victoria in British Columbia, specifically the STPs at Clover Point and Macaulay Point. The purpose of these tests was to look for evidence of PCBs, persistent organic pollutants that had been detected in increasingly significant concentrations in both the marine environment and the marine mammals in the region.6
One litre grab sample of effluent was taken from the wet well of each sewage treatment plant. The wet well is the endpoint in the sewage plant, where all sewage entering the marine environment receives no further treatment. The samples were immediately placed on ice in a cooler, sealed, and taken to Cavendish Analytical Services in Vancouver, BC. There, the samples were analyzed for total PCBs following PCB method SW846-3510/8270C with a minimum level of detection of 1 nanogram/litre.
The samples confirmed the presence of PCBs in the order of 52 nanograms/litre in Macaulay Point effluent and 44 nanograms/litre in Clover Point effluent for a combined overall average of 48 nanograms/litre. Based on a daily combined discharge of 120,000,000 litres of effluent per day from the two plants, it was estimated that the CRD was discharging approximately 6 grams (5.76 grams) of PCBs per day into the marine environment through the effluent from these two plants.
The results of these samples were communicated directly to the Honourable David Anderson, Federal Minister of the Environment.7 In this letter we articulated our concern that the ongoing discharge of raw sewage into the marine environment constituted a violation of the federal Fisheries Act, and possibly CEPA.
In his response8 Minister Anderson stated that CEPA did not apply to the discharge of sewage into the marine environment but that PCB regulations were being drafted under CEPA to regulate PCBs in waste water and that said PCB regulations were to be "finalized by March 2002, with publication in the Canada Gazette, Part I in December 2002 and publication in the Canada Gazette, Part II in June 2003." The Minister proposed a standard of allowable PCBs in wastewaters (0.1 nanograms/ml—this is equivalent to 100 nanograms/litre). To our knowledge this regulation has never been drafted.
In February 2003, Sierra Legal staff scientist Mitch Anderson arranged to have another set of samples taken of waste water from the Clover and Macaulay points STPs in Victoria. The Capital Regional District Staff arranged to have samples taken at the same time. A single grab samples was taken from the wet well at each facility and the samples were taken to an accredited lab and analyzed for PCBs (broken down into their respective parts) to the nanogram per litre level of quantification. These samples again confirmed the presence of PCBs in the order of an average of 16 nanograms of PCBs per litre (16.5 nanograms/litre in Macaulay Point effluent and 15.0 nanograms/litre in Clover Point effluent) or approximately 2.0 grams per day.
PCBs are synthetic oils that are mixtures of up to 209 individual chlorinated compounds. They can exist as oily liquids, solids, or vapour in air. Some PCBs are more toxic than others due to the placement of chlorine molecules and chemical structure. These differences are referred to as their "congeners". Sierra Legal Defence Fund's 2003 waste water samples were also analyzed for 209 individual PCB congeners. Because some congeners are more toxic than others the BC government has also placed limits on the allowable concentrations of the more toxic congeners being discharged into marine and fresh waters, specifically, limits on PCB 77, PCB 105, PCB 126 and PCB 169.
The following table sets out the BC government's recommended water quality criteria for the protection of aquatic life and consumers of fish and compares them with the actual concentrations found in the sewage.
Allowable Limit1 (ng/l)
Concentration in sewage (ng/l)
It is clear from these data that the concentrations of PCB 105 and PCB 126 in both Macaulay Point and Clover Point effluents exceed the recommended safe limits for the protection of aquatic life and for consumption of fish by humans.
Commercial production of PCBs began in the United States in 1929 as a coolant and insulating fluid for industrial transformers and capacitors because they do not burn easily and are good insulators. PCBs were later used in a number of other applications including hydraulic fluid in heavy machinery, printing processes, paint, plasticizers in sealants, caulking, synthetic resins, rubbers, paints, waxes, and asphalts, and as flame retardants in lubricating oils.
PCBs belong to a family of pollutants known as persistent organic pollutants often referred to as POPs. The POPs family include dioxins and furans, as well as toxic pesticides such as deildrin, endrin and chlordane.
POPs, and in particular PCBs, are now recognized as a significant threat to the environment and human health because they persist in the environment, and bioaccumulate in the foodchain. Even very small amounts of PCBs in the environment can result in dangerous concentrations in species high in the food chain - each predator absorbing the PCBs of the prey it consumes. Environment Canada has recognized that PCBs in municipal waste water are a major concern because of their persistence.9
Once PCBs enter into the environment they disperse. PCBs can travel great distances in air, often being deposited far away from where they were released. In water, PCBs adhere to organic particles and bottom sediments. PCBs also bind strongly to soil. Although most PCBs were, and continue to be, used under "controlled" conditions in industrialized areas, they are now being detected everywhere from the benthic sediments on the ocean floor, to the milk of nursing mothers in the Arctic Circle.
2.3 Environmental and health impacts of pcb contamination
The Health effects associated with exposure to PCBs include acne-like skin conditions in adults and neurobehavioral and immunological changes in children. PCBs are known to cause cancer, immunological and reproductive failure in animals.
In the marine environment PCBs enter the food chain when they are taken up by small organisms and fish10. PCBs accumulate in fish and marine mammals as they move up the food chain reaching levels that may be many thousand times higher than the concentration of PCBs in the surrounding water.
A weight of evidence from laboratory animal studies, semi-field and field studies of seals, and field studies of whales would suggest that certain populations of wild whales such as the St. Lawrence belugas and NE Pacific whales are at risk for adverse health effects including reproductive and immune system disruption.
PCBs are being discovered in record concentrations in the fatty tissue of marine mammals including killer whales. This is not surprising, as mammals are high in the food chain, with whales being the top predators in their ecosystem. Killer whales have been shown to be among the most contaminated marine mammals in the world - 3-5 times as contaminated as the highly contaminated belugas in the St. Lawrence River11.
The Southern Resident population of orcas was listed in November of 2001 as endangered in part due to their concentration of PCBs12. The Southern Resident population fell by 20 percent over the six years spanning 1995 to 2001. There are currently thought to be 82 animals in the Southern Resident population. Population projections are not hopeful, revealing that this distinct population may be extirpated in as little as 30 years13.
2.4 Sources of pcbs discharge into the marine environment
PCBs were never manufactured in Canada. The importation of PCBs into Canada was restricted under federal regulation in 1977 and 1980. Approximately 40,000 tonnes of PCBs were imported into Canada between 1930 and 1980. Of this, only 24,000 tonnes are currently accounted for. The remainder are assumed to have been either released into the environment or placed in storage at unknown locations.14
PCBs enter the air, water and soil during their manufacture, use and disposal15, from accidental spills and leaks during transport, from leaks or fires in products containing PCBs, from leachate from old landfills where waste containing PCBs is buried16, and wastewater disposal. In addition to these significant point sources of PCB discharge, PCBs also enter the marine environment through atmospheric deposition and by way of rivers that flow into the Ocean.
This petition focuses on discharge of PCBs into the marine environment through wastewater. We have chosen to focus on this type of marine contamination despite the existence of many other sources of PCB contamination of the marine environment, because point source contamination from sewage outflows is a source we can control and virtually eliminate with known and available technology already in use in many other cities in Canada and in most cities in developed countries around the world.
The recent sampling of sewage discharge from the city of Victoria indicates that PCBs are being discharged on a daily basis in waste water. PCBs have also been detected in sewage discharge from GVRD sewage treatment plants at Iona Island and Lions Gate17.
Independent samples and available data suggest that these discharges are routinely in excess of provincial waste water guidelines for protection of the marine environment. This is a significant concern due to the sheer volume of waste water discharged each day from these four plants. The City of Victoria (Capital Regional District or "CRD") discharges, on average, 120,000 cubic meters (120,000,000 litres) of raw untreated sewage daily into the waters of the Strait of Juan de Fuca. The GVRD discharges a combined average volume of 400,000 cubic meters (400,000,000 litres) of primary treated sewage into the waters of Georgia Strait each day.
2.5 Technology to remove pcbs from the waste stream
Technology exists to remove PCBs from waste water before it enters the marine environment. Using data obtained from the Greater Vancouver Regional District we were able to determine that simple secondary sewage treatment can remove up to 99 percent of all PCBs from waste water.18
Secondary sewage treatment involves taking the effluent from the primary phase of sewage treatment and subjecting it to further treatment, bringing it in contact with oxygen and aerobic micro-organisms which break down much of the organic matter. Therefore, secondary treatment removes significantly more suspended particulate matter from the effluent (85 percent vs. 60–70 percent for primary treatment), thereby also removing more of the chemicals that bind to those particulates, chemicals like PCBs. Most municipalities in Canada use secondary sewage treatment. The European Union is striving to have all urban communities upgraded to secondary sewage treatment by December 31, 2005 19. In comparison, the City of Victoria does not have any treatment at all except to screen out particles greater than 6 millimetres in diameter.
We recognize that removal of toxic organic chemicals from the waste stream through enhanced sewage treatment increases the concentrations of toxic organic chemicals in the resulting sewage sludge. This poses its own problem in terms in how the sludge will be handled. However, there are existing technologies that the federal government is aware of that could be used to either treat the liquid waste stream or sludge solids to destroy PCBs. These technologies include thermochemical conversion and mobile incinerators, and are proven to be highly effective20.
3.0 Concerns upon which this petition is based
3.1 The discharge of pcbs into wastewater is unregulated under cepa and proposed regulations are lax
There has been international and national acknowledgement that PCBs are an inherently toxic chemical that must eventually be eliminated from the natural environment.21 In Canada PCBs are a CEPA toxic Track 1 substance slated for virtual elimination from the environment22.
CEPA provides a number of means by which the discharge of PCBs into the marine environment could be controlled.
Toxic substances listed under CEPA may be controlled by regulation23. Although PCB discharge into the environment is controlled by regulation in certain contexts24, there are currently no regulations governing the release of PCBs into the environment via wastewater.
In his letter of March 2002, Minister Anderson advises that action is underway to address the discharge of PCBs in wastewaters, and that this will be achieved by proposing an amendment to the draft proposed Regulations for Polychlorinated Biphenyls, as they then were - this combination thereby rendering wastewater within the scope of the regulation's eventual application. The draft regulation purportedly stated:
"No person shall release to the environment any liquid that contains PCBs at a concentration greater than the limit of quantification (LOQ) of PCBs in the liquid, referred to in Schedule 1".
The proposed LOQ for PCBs in water/wastewater is 0.1 ng/ml25.
First, it is our understanding through communication with Ministry of Environment staff that little if any progress has been made in formulating the promised regulation for PCBs in waste water. Further, while we applaud the idea of this initiative on principle, the proposed LOQ standard is lax by comparison to generally accepted standards for discharge of PCBs in wastewater.
The proposed standard is said by Minister Anderson to be the "Limit of Quantification" of PCBs in waste water - meaning the minimum level at which one could reliably detect PCBs. We assert that current technology will allow PCBs to be accurately measured in waste waters at levels as low as a few picograms per liter, or 0.001 nanograms/litre 26. This is a limit of quantification that is 100,000 times lower than the limit of quantification proposed by Environment Canada.
The standard set will not adequately address the problem of chronic low level discharge of PCBs in waste water. For example, at this level of quantification, the ongoing discharge of PCBs into the marine environment through the STPs in Victoria would be permitted.
Finally, the proposed standard is out of step with Canada's commitments to the international community regarding POPs, standards set in other jurisdictions, or national and provincial wastewater standards for PCBs.
Environment Canada's proposed regulation for PCBs in waste water does not meet the standards established in the POPs Convention. The POPs Convention is an attempt to address the problem of persistent organic pollutants in a comprehensive fashion by taking a global approach to controlling these substances. The Convention focuses on 12 of the most dangerous known POPs, including PCBs, by setting standards for their production, use, import and export, and disposal. The overall goal of the Convention is virtual elimination of the listed substances. Canada signed and ratified the POPs Convention on May 23, 2001.
Article 6 of the POPs Convention addresses release of POPS from stockpiles and waste. Pursuant to Article 6, Canada commits to eliminating releases of PCBs from stockpiles and wastes, and ensuring that PCBs removed from the waste stream are destroyed.
The proposed standard for regulation of PCBs in waste water under CEPA is not consistent with other federal guidelines for the control and release of PCBs through wastewater.
The federal government has established guidelines to assist federal facilities to minimize the environmental impact of wastewater discharge.27 The Guidelines are based in part on the recognition that without addressing problems with wastewater discharge, federal facilities may be in violation of the Fisheries Act. The Guidelines state that effluent from federal facilities should be pre-treated so that it does not contain, among other harmful substances, any detectable PCBs.28
Provincial recommended standards for PCBs in wastewater are radically lower than the federal proposal. The British Columbia Ministry of Water, Land and Air Protection's Ambient Water Quality Criteria for PCBs are intended to protect marine aquatic life and consumers of fish and shellfish. The standard set for discharge of total PCBs into the marine environment is a maximum of 0.1 ng/L. The acceptable level for certain types of PCB congeners is even lower.29
Both the United States and the European Union have taken greater measures to prevent the discharge of PCBs into marine waters than Canada.
American Pacific coastal states have adopted guidelines for the discharge of PCBs in waste water that are much stricter than those proposed by the Canadian Minister of the Environment. The U.S. Environmental Protection Agency (EPA) has set criteria that are used by states to establish enforceable water quality regulations.30 The EPA ambient water quality criteria for PCBs in saltwater is 30 ng/L. Washington and Oregon have both adopted the saltwater limit for PCBs of 30 ng/L in state regulations.31 Of the Pacific states, California has the most restrictive limits on PCB discharges into ocean water, at 0.019 ng/L (30-day average).32
The European Union has gone even further in preventing PCBs from entering water systems through sewage effluent. Member states of the European Union are required to install secondary sewage treatment facilities in all urban waste water systems by December 31, 2005.33
3.2 The Minister of the Environment is failing to use his authority under cepa to limit the discharge of toxic substances
Provincial and Municipal sources
The Minister of the Environment has never used the powers under CEPA to control the continuous discharge of PCB laden sewage from sources under provincial control such as the Macaulay and Clover Points STPs.
Division 2 of Part 7 of CEPA grants the Minister of Environment the power to protect the marine environment from land based sources of pollution through provisions allowing for the consultation and planning with Provincial governments to determine whether that government can prevent, control or correct the water pollution under its laws. Section 12(1) allows the Minister to issue environmental objectives, release guidelines and codes of practice to prevent and reduce marine pollution from land-based sources after such consultation.
This authority has been expressly granted the federal Minister in recognition of Canada's international commitments to protect the marine environment from pollution from land based sources34 - an obligation which Canada carries regardless of whether those sources are found on federal, provincial, or municipal land.
International water pollution from Canadian sources
Despite historical evidence that sewage from Victoria is flushed across an international border, and despite Canada's obligation to ensure that our pollution does not cross borders, none of the powers under CEPA available to address this problem have been used.
The sewage outfalls at Macaulay and Clover Points are very close to an international boundary. It is an area with significant tides and currents that travel south across the boarder via the Strait of Juan de Fuca. Prior to 1985 when the CRD did not screen its sewage, US residents in the San Juan Islands reported flotsam in the form of used sanitary napkins, condoms and feces washing up on the shores of their beaches. It was believed that this material was coming from the City of Victoria's sewage discharges due to the fact they ceased after Victoria installed screens. Also, it is an accepted scientific fact that PCBs are wide ranging and disperse globally by virtue of their environmental persistence.
Since the installation of the screens, the extent of transboundary movement with respect to the liquid fraction of the sewage discharge has not been monitored. In light of what we know about currents in the region and dispersion of PCBs in water, it is prudent to assume that contaminated sewage effluent from the City of Victoria is entering US and/or International waters.
CEPA contains provisions concerning international water pollution. Division 7 defines "water pollution" as "a condition of water, arising wholly or partly from the presence in water of any substance, that directly or indirectly
- endangers the health, safety or welfare of humans;
- interferes with the normal enjoyment of life or property;
- endangers the health of animal life;
- causes damage to plant life or to property; or
- degrades or alters, or forms part of a process of degrading or altering, an ecosystem to an extent that is detrimental to its use by humans, animals or plants.
PCBs certainly meet all of these criteria.
Section 176(1) provides that the Minister shall act to address water pollution if the Ministers have reason to believe that a substance released from a source in Canada into water creates, or may reasonably be anticipated to create,
- water pollution in a country other than Canada; or
- water pollution that violates, or is likely to violate, an international agreement binding on Canada in relation to the prevention, control or correction of pollution.
Subsection (2) applies when the source referred to in subsection (1) is not a federal source, and requires the Minister to:
- consult with the government responsible for the area in which the source is situated to determine whether that government can prevent, control or correct the water pollution under its laws; and
- if the government referred to in paragraph (a) can prevent, control or correct the water pollution, offer it an opportunity to do so.
If the government referred to in paragraph (2) (a) cannot prevent, control or correct the water pollution under its laws or does not do so, the Minister must, under subsection (3),
- on approval by the Governor in Council, publish a notice under subsection 56(1); or
- recommend regulations to the Governor in Council for the purpose of preventing, controlling or correcting the water pollution.
4.0 The minister of environment is failing to prevent marine pollution by enforcing the federal Fisheries Act.
The dumping of PCB contaminated sewage into the marine environment at the sewage outfalls at Clover and Macaulay Points constitutes an ongoing violation of the Fisheries Act. The Responsible Minister is failing to use those powers of enforcement granted under the Fisheries Act that are intended to prevent the pollution of fish bearing waters.
Section 36(3) of the Fisheries Act prohibits the deposit of a deleterious substance of any type in water frequented by fish.
A deleterious substance is defined in the Act as:
- any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water, or
- any water that contains a substance in such quantity or concentration...that it would, if added to any other water, degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water...
Canadian Courts have consistently held that deposit of PCBs into fish bearing waters is a violation of the Act. In R. v. Inco Ltd. (2001) 54 O.R. (3d) 495 (Ont. CA), Chief Justice McMurtry provided PCBs as an example of "an inherently deleterious substance in water", (at para 55) citing the finding in R. v. Toronto Electric Commissioners,  O.J. No 189 (Ont. Ct. (Gen. Div.)).
Inherent toxicity has been interpreted by courts as implying a zero tolerance level for discharge under provisions of certain statutes such as s. 36(3) of the federal Fisheries Act. In Inco, the court found that inherently toxic substances, "by their nature" are substances that may impair water quality, and that it is not necessary to consider the quantity and concentration of discharge.
The issue of Victoria's continuous deposit of untreated sewage into the marine environment is a long standing one.35 Despite this ongoing problem the Minister of Environment has never used the powers vested in him to address the problem. The City of Victoria has never been charged under the Act, nor has it ever been the recipient of a clean-up order.
Recently, the municipalities of Dawson City and Iqualuit were charged and convicted for ongoing violations of the Fisheries Act36. The Court in both cases was dealing with a much smaller discharge of waste water than we are dealing with from the CRD and many other coastal communities in BC. Yet in the case of the City of Iqaluit the Court held that "[l]oss of an aquatic habitat is often caused by incremental damage sustained over significant periods of time...the cumulative effect of many small discharges over time can result in a catastrophic degradation of an otherwise thriving marine habitat.37"
4.1 The minister of Fisheries and Oceans Canada is failing to prevent harmful alteration, disruption or destruction of marine fish habitat by failing to enforce the federal Fisheries Act and failing to properly administer the Oceans Act.
The dumping of millions of litres of sewage that contains suspended solids (fecal matter, dissolved tissue paper, plastics, grit, etc...) into the marine environment at the sewage outfalls at Clover and Macaulay Points also constitutes an ongoing violation of the Fisheries Act. The Responsible Minister is failing to enforce the relevant sections of the Fisheries Act that are intended to prevent the harmful alteration, disruption or destruction of fish habitat.
Under the Fisheries Act, "fish" include "shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans or marine animals". Further, "fish habitat" means spawning grounds and nursery, rearing, food supply and migration areas on which fish depend directly or indirectly in order to carry out their life processes. The seabed is home to myriad species of benthic dwelling shellfish and crustaceans. The seabed around the Clover and Macaulay outfalls in particular was once home to crabs, clams, scallops, shrimp and mussels, all of which fit the definition of "fish" under the Act. However, over time their habitat has been severely degraded by a smothering layer of rotting sewage that was, and continues to be deposited daily on the sea floor and is accumulating in the vicinity of both outfalls.
CRD documents describe the seafloor around the Macaulay outfall as "black" in colour, low in oxygen and having a completely different benthic community compared to other more distant sites. In a 1991 CRD document, researchers noted that "excess organic matter, from the outfall, is accumulating and decomposing as would be expected", and that "if the organic load continues to increase...then larger benthic invertebrates (e.g. sea anemones) will be lost and replaced with smaller organisms (e.g. worms)." (emphases added). Further, researchers have found increased mortality and abnormal development in organisms that are exposed to these sediments.
Clearly, the fish habitat that once existed in the vicinity of the outfalls prior to the discharge of sewage taking place has been grossly altered, to the point where the "fish" that once inhabited these areas can no longer survive there.
Section 35(1) of the Fisheries Act holds that "No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat."
In failing to ensure that the Fisheries Act was being adequately enforced with respect to the Capital Regional District and its practice of discharging raw, untreated sewage to the marine environment, the federal Minister of Fisheries and Oceans has essentially permitted the CRD to harmfully alter the benthic fish habitat in the vicinity of the outfalls by allowing the CRD to continue with the ongoing and pervasive deposit of suspended sewage particles into the marine environment.
The Oceans Act (OA)
Like all countries, Canada's territory extends 12 nautical miles from the low water mark along the coast (the Territorial Sea). The Oceans Act (1996, c. 31) establishes a Contiguous Zone (CZ), extending 12 nautical miles from the outer edge of the Territorial Sea that allows Canada to prevent and take action with respect to offences committed on Canadian territory relating to customs, sanitary, fiscal and immigration laws.
The OA also establishes an Exclusive Economic Zone (EEZ), extending 200 nautical miles adjacent to Canada. This encompasses the 200-mile Fishing Zone already in existence, which relates solely to fisheries management.
Canada's rights and responsibilities within the EEZ allow us to explore, exploit and conserve living and non-living natural resources. Canada also has the responsibility and jurisdiction to protect the marine environment, regulate scientific research and control offshore structures in this zone.
The OA provides the legal framework for the implementation of an Oceans Management Strategy (OMS). Pursuant to sections 29 through 34 (and others), the OA directs the Minister of DFO, along with stakeholders, to develop a national strategy for Canada's oceans.
The strategy is to be based on the principles of sustainable development, integrated management and the precautionary approach. The Act also enables the Minister to:
- establish marine protected areas for the conservation and protection of marine resources and habitats;
- develop and implement, with stakeholders, plans for the integrated management of activities in, or affecting, estuaries, coastal and marine waters; and,
- develop measures to conserve and protect marine ecosystem health
By virtue of his inactions in dealing with the Capital regional District and the ongoing pollution from the CRD's sewage outfalls, the Minister responsible is not exercising his authority under the Oceans Act to protect marine ecosystem health.
The preamble of Canada's Oceans Act states that Canada is a world leader in oceans and marine resource management. Canada was the first nation to ratify the POPs Convention. Canada has identified sewage and persistent organic pollutants as a high priority issue to be addressed under the National Programme on Marine Pollution from Land-Based Activities. Canada's Oceans Strategy states clearly that "protecting the marine environment is the corollary of improved understanding of the marine environment" and that "protection must consider the degradation of the marine environment" from among other things "pollutants entering the oceans"38. The first strategy articulated in that document is to "improve existing legislation and guidelines on marine environmental protection.39" Yet despite all of these many commitments, programmes and strategies, POPs including PCBs remain unregulated in wastewater, and consistent discharge of POPs contaminated wastewater goes unchallenged by the federal authorities.
- The National Sewage Report Card, Sierra Legal Defence Fund, 1994; The National Sewage Report Card (Number Two), Sierra Legal Defence Fund, 1999.
- Ross P.S., G.M. Ellis, M.G. Ikonomou, L.G. Barrett-Lennard and R.F. Addison. "High PCB Concentrations in Free-Ranging Pacific Killer Whales, Orcinus orca: Effects of Age, Sex and Dietary Preference." Marine Pollution Bulletin, Vol. 40, No. 6 (2000) at pp. 504-515.
- TEST RESULTS # 1 Cavendish Analytical Laboratory Ltd. Analysis of PCBs in effluent, 4 September 2001.
- Letter from John Werring, M.Sc., RPBio., Staff Scientist, Sierra Legal Defence Fund (11 December) to Minister Anderson.
- TEST RESULTS # 2 Axys Analytical Servies, Homologue Total Polychlorinated Biphenyls (PCB) Analysis Report, 14 May 2003.
- Trites, A.W., and L.G. Barrett-Lennard, COSEWIC Status Report Addendum on Killer Whales (Orcinus orca), 2001.
- Comparison of Chemical Removal Efficiencies in a Secondary Sewage Treatment Plant with Tow Primary Treatment Plants, prepared by John Werring, R.P. Bio., on statistics from Bertold, S. and Stock, P. 1999. GVS&DD Municipal Wastewater Treatment Plant 1997 Monitoring Program: Wastewater Chemistry - Data evaluation. Final Report. Greater Vancouver Regional District, 4330 Kingsway, Burnaby, BC.
- European Union, Urban Waste Water Treatment Directive, 91/271/EEC, Article 4, 1991
- Letter from Environment Minister Anderson to John Werring, 5 March 2002.
- United States Environmental Protection Agency, National Recommended Water Quality Criteria: 2002, EPA-822-R-02-047.
- Washington: Water Quality Standards - Surface Waters, Ch. 173-201A-040 WAC, 1997.
- Oregon: Water Quality Criteria Summary, Oregon Administrative Rules, Ch. 340, Division 41, Department of Environmental Quality, 1997.
- State Water Resources Control Board, California Ocean Plan: Water Quality Control Plan for Ocean Waters of California, 1990.
*[attachments not posted]
September 13, 2004
Ms. Margot Venton
Mr. John Werring
Mr. Mitch Anderson
Sierra Legal Defence Fund
214 - 131 Water Street
Dear Ms. Venton, Mr. Werring and Mr. Anderson:
I am writing to provide Environment Canada's response to your environmental petition no. 112, to the Commissioner of the Environment and Sustainable Development, concerning persistent organic pollutants (POPs) in wastewater, on behalf of your clients, Georgia Strait Alliance and United Fishermen and Allied Workers Union - CAW. Your petition was received in the Department on May 12, 2004.
Your petition covers a broad spectrum of issues that are for the most part under the responsibility of the Department of the Environment. I am, therefore, in forwarding to you the enclosed substantive response, which has been developed in consultation with other federal departments. My colleagues, the Minister of Fisheries and Oceans and the Minister of Western Economic Diversification, will also provide you with responses addressing specific issues related to their programs and activities.
The protection of the marine environment and the management of POPs are priorities for the Government of Canada. In particular, I wish to stress that the federal government has sustained, extensive efforts, both domestically and internationally, to reduce the human health and environmental risks associated with POPs in general, and PCBs in particular. We will continue to protect the marine environment as well as other environments in Canada, based on sound science.
I trust that you will find this information helpful.
[Original signed by Stéphane Dion, Minister of the Environment]
RESPONSE TO PETITION 112
FILED BY SIERRA LEGAL DEFENCE FUND
UNDER THE AUDITOR GENERAL ACT CONCERNING:
Persistent Organic Pollutants in Wastewater
Minister of the Environment
Table of Contents
Units of Measure
On April 26, 2004, the Sierra Legal Defence Fund submitted a petition under the Auditor General Act concerning persistent organic pollutants (POPs) in wastewater. Environment Canada, the Department of Fisheries and Oceans (DFO) and Western Economic Diversification (WD) collaborated on this response.
The Petition deals with POPs, in particular polychlorinated biphenyls (PCBs), which are released into the aquatic environment through municipal wastewater effluent. It cites the sewage discharge from Victoria, B.C., into the Strait of Juan de Fuca as an example of coastal community practices that result in the discharge of pollutants into the marine environment. The Petitioner makes seven specific requests regarding Canada's regulatory system and approach with respect to municipal wastewater management and Canada's international commitments to address POPs (in particular, PCBs).
Environment Canada considers the protection of marine ecosystems to be a priority, and the current and planned program to manage PCBs is based on sound science and risk management principles. The Strait of Georgia and the Strait of Juan de Fuca have large open boundaries with the Pacific Ocean and the atmosphere. The limited evidence available suggests that the predominant process controlling the concentration of PCBs in local surface waters is air-sea exchange. If this is the case, discontinuing a small pathway, such as wastewater effluent, would result in no measurable change in the net flux of PCBs into the Strait of Georgia.
Canada is meeting its international commitments under the United Nations Environment Programme (UNEP) Stockholm Convention on Persistent Organic Pollutants and under the United Nations Economic Commission for Europe (UNECE) Convention on Long-Range Transboundary Air Pollution - POPs Protocol. Wastewater effluents are not identified as a significant source of PCBs and are therefore not targeted for control measures for PCBs.
Environment Canada is working with other Canadian jurisdictions through the Canadian Council of Ministers of the Environment (CCME), to develop a Canada-wide Strategy for the management of wastewater effluents. Environment Canada intends to develop regulations for wastewater effluents under the Fisheries Act, as its tool to implement the Canada-wide Strategy. PCBs will not likely be addressed in those regulations, as the management of PCBs is most effective at the source.
On April 26, 2004, Sierra Legal Defence Fund (hereinafter referred to as the Petitioner) submitted a petition (hereinafter referred to as the Petition) pursuant to section 22 of the Auditor General Act to the Commissioner of the Environment and Sustainable Development, on behalf of its clients, the Georgia Strait Alliance and the United Fishermen and Allied Workers Union - Canadian Auto Workers. The Petition was specifically directed to the following Ministers for response:
The Petition covers a broad area that includes responsibilities within several departments of the federal government. Since most of the questions in the Petition refer to responsibilities under Environment Canada, the Minister of the Environment has taken the lead in responding for the government. The Minister of Fisheries and Oceans and the Minister of Western Economic Diversification have provided information relevant to their responsibilities as part of the response to the Petition.
The Petition deals with PCBs, released into the aquatic environment through wastewater effluent. The Petition cites the sewage discharge from Victoria, British Columbia as an example of coastal community practices that result in the discharge of pollutants into the marine environment. The Petition also makes mention of similar situations in other coastal communities. The Petitioner makes seven specific requests regarding Canada's regulatory approach with respect to wastewater effluent and Canada's international commitments to address persistent organic pollutants (POPs), in particular, polychlorinated biphenyls (PCBs).
Environment Canada considers the protection of marine ecosystems to be a priority. Canada's current program to manage PCBs is based on sound science and risk management principles, and the current and planned program meets Canada's international commitments under the UNEP Stockholm Convention on Persistent Organic Pollutants and under the POPs Protocol of the UNECE Convention on Long-Range Transboundary Air Pollution.
This response is structured to provide an overview of the federal government's programs and activities related to the issues raised by the Petitioner in Part A, followed by responses to the seven specific requests of the Petition in Part B. Please note that the Auditor General is responding under separate cover to the request by the Petitioner for an audit of the Department of the Environment with respect to topics raised in correspondence with Mr. Werring.
Part A: Overview of Programs and Activities of the Federal Government Relevant to the Issues Raised by the Petitioner
A.1 Polychlorinated Biphenyls
A.1.1 Brief Overview of POPs and PCBs
POPs are a class of substances that have been identified internationally as causing health or environmental damage and that require strict control of their production, use, transport and disposal. Their chemical properties make them bioaccumulative in living organisms, persistent in the environment and toxic to humans and other organisms. PCBs are one class of POPs. PCBs were used in the manufacture of electrical equipment, heat exchangers, hydraulic systems, and several other specialized applications up to the late 1970s. Although they were never manufactured in Canada, they were widely used in this country.
A.1.2 Effects of PCBs on Marine Life
PCBs are very persistent, both in the environment and in living tissue. PCBs are widely recognized as endocrine-disrupting compounds that lead to suppression of the immune system, reproductive impairment and developmental abnormalities in exposed humans and wildlife (Ross et al., 2000b).1
Environment Canada shares the Petitioner's concerns for the health of the marine environment, including the marine life dependent on it.2 The levels of PCBs in the southern resident and transient killer whales of the west coast (Ross et al., 2000a)3 surpass established toxicity thresholds for immunotoxicity and endocrine disruption, although further research is needed to improve our understanding of effects in this difficult-to-study species.
The Petitioner is correct that killer whales in the Pacific region have been declared endangered under the Species at Risk Act (SARA), which came fully into force on June 1, 2004, and that contaminants are a threat to the health of that species. Fisheries and Oceans Canada is currently leading a SARA-required Killer Whale Recovery Team in the Pacific Region, a process whose purpose is to identify and mitigate the three major threats that face this species, including contaminants, diminished prey (e.g. salmon) and boat traffic.
A.1.3 Domestic Actions with Regard to PCBs
Environment Canada is taking domestic action under each of the primary source control obligations of the Stockholm Convention on Persistent Organic Pollutants: prohibitions on production, use, export and import of POPs; measures to minimize unintentionally produced POPs (UPOPs); managing POP stockpiles and wastes; and disposing of them as required by the Convention.
In 1977, the Canadian government prohibited PCB import, manufacture, and sale (for re-use), and, in 1985, it banned the release of PCBs (above the level of 50 parts per million [ppm]) to the environment. As in other countries, existing PCB equipment was allowed to continue in use until the end of its service life. Environment Canada is working to phase out in-use PCBs and for their destruction in an environmentally sound manner with proposed revisions to existing PCB regulations under the Canadian Environmental Protection Act, 1999 (CEPA 1999).
Canada's approach to UPOPs, which is similar to other countries, focuses on actions to control dioxin and furan releases, since combustion-produced PCBs can be reduced through the same actions as for dioxins and furans. Canada is addressing its most significant source categories of unintentionally produced PCBs through the development and implementation of CCME Canada-wide Standards for Dioxins and Furans for specific source sectors, with established limits for releases.
Federal and provincial strategies and initiatives to deal with PCB stockpiles and wastes began in the late 1970s, with federal regulations and a CCME Action Plan to phase out PCBs from service and to develop national codes for storage, handling and destruction of PCBs. The storage of PCBs has been regulated since 1988. PCBs in use and in storage are identified in a national inventory maintained by Environment Canada since 1989, on behalf of the CCME. PCBs are regulated throughout their life cycle until disposal in an environmentally sound manner.
Environment Canada is developing more stringent regulatory requirements, as part of its proposed revisions to CEPA 1999 regulations on PCBs. The proposed revisions will include new provisions for the tracking and destruction of PCBs in contaminated equipment currently in service; additional restrictions, including time limits, on the use of PCBs; and time limits on the storage of PCBs before their destruction. Following public consultations, the proposed revisions to the regulation were modified, and no longer reference limits of quantification. These proposed changes will be consistent with Canada's international commitments on the end of use and the destruction of PCBs.
A.1.4 National and Provincial Standards
The Petitioner referred to a number of standards or guidelines being applicable to PCBs in wastewater, including the following:
These criteria describe acceptable or desirable ambient water quality conditions, and they are not enforceable. The criteria are generally used by jurisdictional authorities as an optimum or desirable condition, which provides a basis on which to back calculate allowable limits or levels for contaminants in waste discharges. The enforceability of such limits depends on the regulatory regime in place in each jurisdiction.
The former Canadian water quality guidelines for PCBs (0.001 micrograms per litre [µg/L] in freshwater, 0.01µg/L in marine water) were rescinded in 1999 by the CCME and are no longer recommended.4,5,6 No Canadian water quality guideline is currently recommended for PCBs, as, in the aquatic environment, wildlife, fish and other aquatic organisms are exposed primarily via sediment or food consumption. The Province of British Columbia has a water quality guideline, based on bioaccumulation in tissue, which is 0.1 nanograms per litre (ng/L) for total PCBs.
In terms of guidance for Canadian federal facilities with respect to wastewater effluent quality, the established guidelines to assist federal facilities are the Guidelines for Effluent Quality and Wastewater Treatment at Federal Establishments, 1976. The update of these Guidelines is part of Environment Canada's long-term strategy for wastewater effluents. The "guidelines" referred to in the Petition are not the official federal Guidelines, but rather the result of an initiative to inform the update of the 1976 Guidelines.
A.1.5 Linkages Between PCBs and Wastewater Effluents and Other Sources
The limited data available indicate that wastewater effluents make a small but measurable contribution to the budget of PCBs in the Strait of Georgia.
Research on the sediments in the Strait of Georgia (Johannessen et al.,
2003)7 suggests an annual PCB burial rate in the sediments of about 150 kg/year.8 Wastewater effluents discharged into the Strait of Georgia are estimated to contribute about 6 kg/year: 4 kg/year from the Greater Vancouver Regional District (GVRD) plus 0.7 or 2 kg/year from the Capital Regional District (CRD), which includes Victoria.9 These estimates imply that the combined contribution of CRD and GVRD sewage to the total PCB budget is at most 4 percent. Comparable data are not available for Juan de Fuca Strait.
Identifying a source for the PCBs in killer whales on the west coast is fraught with difficulty, since killer whales are long-lived, high trophic-level animals. However, the Ross et al. (2000a) and related studies10,11,12,13 suggest that a combination of local, regional and global sources of PCBs reach the killer whales via coastal resident prey items or returning salmon.14
It is estimated that the vast majority of POPs entering Canada's environment come from foreign sources through atmospheric transport.15 The likely importance of atmospheric processes in transporting PCBs and related compounds in British Columbia was underscored by a recent discovery of these compounds in high-altitude Vancouver Island marmots (Lichota et al., 2004).16
The international research community, with participation by Canadian scientists, is undertaking research in the area of PCB transport. For example, the Canadian Arctic Contaminants
Assessment Report II (CACAR II)17 is a recent, major scientific report summarizing the results of cutting-edge research from 1997-2002, including PCB research.
Urban areas are also known to be sources of PCBs to the environment. It is suspected that PCBs are released from contaminated soils and buildings to the atmosphere and to water. However, there are currently insufficient data to determine conclusively the relative contribution of these sources with respect to the concentrations of PCBs found in the Strait of Georgia.
To construct a reliable budget for PCBs in this area, local measurements in air, surface seawater, and river water, and more measurements in sediments, are required. These measurements are currently being carried out by scientists at Fisheries and Oceans Canada, in collaboration with Environment Canada and the GVRD, as described in Section A.1.8.
The Petitioner makes reference to the fact that secondary treatment of wastewater would remove up to 99 percent of the PCBs. However, many constituents in the wastewater, including PCBs, are not destroyed by the wastewater treatment process. Some constituents pass through the process into the receiving water while others, such as PCBs, are partitioned into the solid phase of the sludge. The management issue then becomes disposal of the sludge.
There are three options for sludge management: land application, incineration and landfill. If the sludge is land-applied, the PCBs may be available to cycle through the environment. The Petitioner is correct in suggesting that incineration can destroy PCBs, provided it is conducted appropriately. Sludge incineration is practiced in some municipalities. Landfilling of sludge requires significant capacity in landfill sites, and therefore is associated with high costs. The technologies identified by the Petitioner, such as thermochemical conversion and mobile incineration, are effective in destroying PCBs in more concentrated forms but are not feasible options to apply to wastewater systems in Canada. The technical difficulties of dealing with PCBs in an end-of-pipe treatment process reinforce the need for management action at the source.
A.1.6 International Actions in Response to the Issue of POPs, Including PCBs
Canada played a leading role in the development of the Stockholm Convention on POPs. Canadian scientific research helped demonstrate the need for global action. Canada provided substantial resources to support negotiations, and was the first country to sign and ratify the Convention.
The Stockholm Convention deals with 12 POPs, which include industrial chemicals, pesticides, and UPOPs. With respect to PCBs, Parties to the Convention must, among other things:
- prohibit the production and use of PCBs, make determined efforts to remove from use PCB liquids above 500 ppm in equipment by 2025, and endeavour to identify and remove from use equipment containing PCB liquids above 50 ppm. Parties must ensure that equipment containing PCBs is not exported or imported except for the purpose of environmentally sound waste management;
- take listed measures to reduce total releases of UPOPs from human-made sources (noting that UPOPs are formed from thermal processes and chemical reactions) with the goal of their continuing minimization, and where feasible, ultimate elimination, focusing on potential source categories specifically identified in Annex C of the Convention; and
- manage stockpiles in an environmentally sound manner, and take appropriate measures to ensure that wastes are handled, collected, transported, stored and disposed of as required by Article 6.
As outlined in A.1.3, Canada is meeting its PCB obligations under the Stockholm Convention through existing and planned domestic actions.
With respect to wastewater, the Stockholm Convention provides lists of primary and secondary source categories having potential for the formation and release of UPOPs such as PCBs. Wastewater is not identified as a source of POPs targeted for control measures.18 Similarly, wastewater from a point source not treated offsite in a foreign jurisdiction is not subject to control under international waste agreements. There are no obligations under the Stockholm Convention with respect to numeric standards for wastewater. It is the view of Environment Canada that Canada is in compliance with its obligations with respect to PCBs under the Stockholm Convention on POPs.
A.1.7 Transboundary Movement of Sewage Discharges Containing PCBs
There is a limited body of information regarding the transboundary movement of sewage discharges from Canadian sources to U.S. waters in the area of Puget Sound, the Juan de Fuca Strait and the Strait of Georgia. Because the highest concentration of PCBs in water in the Georgia Basin is in southern Puget Sound,19 it seems likely that the net transport of PCBs across the Canada-U.S. border is from Puget Sound into Juan de Fuca Strait and the Strait of Georgia. This conclusion is based on the physical principle that mass transport during exchange tends to move a substance from areas of higher concentration to areas of lower concentration.
The Strait of Georgia and Juan de Fuca Strait have large open boundaries with the Pacific Ocean and the atmosphere. The limited evidence available suggests that the predominant process controlling the concentration of PCBs in local surface waters is air-sea exchange. If this is the case, discontinuing a small pathway, such as wastewater effluent, would result in no measurable change in the net flux of PCBs into the Strait of Georgia. Fisheries and Oceans scientists intend to test this hypothesis with the ongoing measurements and modelling described in A.1.8.
The Shared Marine Waters of British Columbia and Washington report20 provides the results of a modelling study on the dissolved constituents in sewage effluent from three wastewater discharges (Seattle, Victoria and Vancouver). The modelling was done in Puget Sound and Juan de Fuca Strait. In the model, an estimated 22 percent of dissolved sewage effluent from Victoria and Vancouver theoretically enters Puget Sound, while material originating from Seattle dominates the dissolved effluent within Puget Sound, because Seattle discharges directly into the Sound. The theoretical total concentration of Canadian dissolved effluent in Puget Sound is about 16 percent of that from Seattle. No estimate of the concentration of American sewage in Canadian waters is currently available.
A.1.8 Relevant Research Conducted by the Federal Government
Fisheries and Oceans Canada is currently conducting research to fill some of the data gaps identified in the preceding sections. Projects related to this issue are as follows:
1. Ongoing monitoring of contaminants in harbour seals and killer whales.
2. Characterization of food web contamination in coastal British Columbia, using a composite "food basket" approach.
3. Delineation of the relative importance of British Columbia, Washington State and international (trans-Pacific) pollutant sources to British Columbia biota, using harbour seal contaminant-concentration data.
4. Ambient monitoring program, in collaboration with the GVRD, which will characterize the sources, transport and fate of contaminants, including PCBs, in and through the Strait of Georgia.
5. Air sampling, in collaboration with Environment Canada, to characterize the atmospheric contribution of PCBs and other contaminants to the Strait of Georgia, as well as the relative importance of local vs. trans-Pacific contaminants.
6. Construction of mass balance and mechanistic models of PCBs in the Strait of Georgia and Juan de Fuca Strait, in collaboration with Environment Canada and Simon Fraser University.
7. Collaboration with U.S. scientists to estimate the exchange of PCBs among the Strait of Georgia, Puget Sound and Juan de Fuca Strait.
A.2 Other Canadian Actions to Protect the Marine Environment
In addition to the matters described above for management of PCBs, Canada has also made important commitments both internationally and domestically to protect the ocean and species dependent on ocean health.
The United Nations Convention on the Law of the Sea (UNCLOS), which Canada ratified in November 2003, is an important international commitment by Canada for marine protection. Article 207 (Pollution from land-based sources) under UNCLOS stipulates that states shall take regulatory and other measures to prevent, reduce and control pollution from land-based sources that will affect the marine environment. Canada's efforts on wastewater are one of many measures addressing land-based pollution.
The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) was developed under UNEP, as a non-legally-binding instrument and in response to Agenda 21. Canada was the first country to release its National Programme of Action for the Protection of the Marine Environment from Land-based Activities (NPA) in June 2000, in response to the UNEP GPA. Canada's NPA aims to prevent marine pollution from land-based activities and protect habitat in the nearshore and coastal zones of Canada. Implementation of the NPA is under way at the national and regional levels, and builds upon existing programs and activities. At the national level, high priority for action was assigned to sewage, POPs, shoreline construction/alteration, and wetland and saltmarsh alteration.
Canada's Oceans Strategy is also an important piece of the broader government agenda for environmental health. As referenced in the Petition, the Oceans Act directs the Minister of Fisheries and Oceans, in collaboration with other Ministers of the Government of Canada and with provincial and territorial governments, and affected Aboriginal organizations, to lead and facilitate the development and implementation of a national strategy for the management of estuarine, coastal and marine ecosystems. This was accomplished with the development and release of Canada's Oceans Strategy in July 2002. The Strategy provides the framework to strategically address issues, based on the principles of sustainable development, integrated management and the precautionary approach. Given the vast area and complexity of issues in Canada's Pacific marine environment, a large-scale strategic approach to integrated management planning is required. As per the Strategy, Large Oceans Management Areas (LOMAs) serve as a tool to help address issues using a planned approach, with marine environmental quality being addressed within these areas. For Canada's Pacific jurisdiction, a current focus of integrated management planning occurs along the north-central coast of British Columbia.
SARA, another important piece of the broad federal approach, came fully into force on June 1, 2004. It is now prohibited to kill, harm, harass, capture or take individuals of SARA-listed species, and SARA also includes measures for the protection of residences and critical habitats. Under SARA, recovery strategies and action plans must be prepared for extirpated, endangered or threatened aquatic species that fall under the competency of the Minister of Fisheries and Oceans. SARA also lays out timelines for when recovery strategies must be posted on a public registry. In 2003, recovery planning was initiated by Fisheries and Oceans Canada for killer whale populations that are protected under SARA. A multi-interest recovery team, comprising scientists, conservation organizations and stakeholders, has been convened to assist in preparing a recovery strategy for these listed populations.
In addition to recovery planning, killer whales and other aquatic species at risk are benefiting from funding for the National Strategy for the Protection of Species at Risk, which was announced in federal Budget 2000 and Budget 2003. Various funding mechanisms have been established to support conservation and protection measures for these species, including Fisheries and Oceans Canada's Species at Risk Program, and the federal Habitat Stewardship Program for Species at Risk (HSP), an initiative co-managed by Fisheries and Oceans Canada, Environment Canada and Parks Canada Agency. Over the past four years, resources from these federal funding programs have been directed toward identifying sources of contaminants affecting killer whale populations, and the overall impact of bioaccumulation of PCBs and other POPs. This work is helping in the design of recovery measures for this species in Pacific-Canadian waters.
A.3 Development of a Canada-wide Wastewater Strategy
Environment Canada, in collaboration with the provinces and territories, is developing a long-term Canada-wide strategy for the management of wastewater system effluents in Canada. While the long-term strategy is under development, Environment Canada has proposed to use the pollution prevention planning provisions of CEPA 1999 to engage owners/operators of selected higher-risk systems with respect to ammonia dissolved in water, inorganic chloramines and chlorinated wastewater effluents. In that regard, a proposed Notice was published on June 7, 2003 in the Canada Gazette, Part 1. Under the Act, a final instrument is intended to be published before December 7, 2004.
In November 2003, the CCME agreed to develop a Canada-wide Strategy for the management of wastewater effluents. Considering the inter-jurisdictional issues involved in managing wastewater effluents, the federal government is fully engaged in and supportive of this initiative. A regulation under the Fisheries Act will be one of the tools to implement the Strategy within the federal sphere. The Strategy, to be developed within three years, may be phased in to take into account the significant costs that Canadian municipalities, or other system owners, will face to implement it.
A key aspect in addressing the risks associated with the management of wastewater effluents is the financing needed to upgrade and/or construct collection and treatment facilities. The Government of Canada has made a substantial commitment to assist municipalities with their infrastructure funding pressures. The federal government has put in place three infrastructure programs that collectively provide over $4 billion in federal funding to assist municipalities to upgrade or construct new infrastructure. They are the Green Municipal Funds, managed by the Federation of Canadian Municipalities; the Infrastructure Canada Program; and, most recently, the Canada Strategic Infrastructure Fund. These funds are expected to leverage an additional $8 billion in funding from other government jurisdictions and the private sector, for a total investment of $12 billion.
WD is responsible for delivering the Infrastructure Canada Program and an earlier program, Infrastructure Works, in the West. In British Columbia, the federal government has invested $543 million in infrastructure funding. Almost $200 million of this funding has been invested in 175 water and wastewater projects under the Canada-British Columbia Infrastructure Program.
Environment Canada is committed to minimizing releases of PCBs to the environment, through management of sources of PCBs and destruction of existing PCBs. Canada is meeting its obligations under the Stockholm Convention. For reasons described in this response, the overall management of PCBs cannot be done effectively through focussing on wastewater treatment processes. Eliminating sources of potential PCB contamination, including discharges into wastewater systems, should be the focus of continued action. Given the chemical properties of PCBs and atmospheric transport mechanisms of volatile compounds, the benefits of treating sewage for PCBs would be limited. We can expect PCBs to cycle in the environment for an extended period of time, and therefore Canada is committed to continue to push for global action to control these substances.
Part B: Response to Seven Specific Requests of the Petition
Request a: the Minister of the Environment confirm and ensure that the provisions of the Canadian Environmental Protection Act 1999, S.C. 1999, c. 33 ("CEPA") and its regulations apply to the discharge of wastewater (also referred to in this document as "sewage") into the marine environment;
Response to Request a:
CEPA 1999 is being used to manage the risk from certain substances in wastewater effluents (ammonia, inorganic chloramines, chlorinated wastewater effluents),21 as part of the long-term strategy for addressing wastewater effluents. In June 2003, Environment Canada published in the Canada Gazette a proposed Notice setting out pollution prevention planning requirements for these substances in certain wastewater systems, and intends to publish a final instrument by December 7, 2004.
The existing regulations under CEPA 1999 related to PCBs do not address their presence in wastewater, but their use in equipment such as electrical equipment. Work under way to revise these regulations also keeps this original intent. Therefore, specific provisions for wastewater effluents are not included in the draft regulation. (See Part A.2.3.)
Request b: the Minister of Environment establish a legally binding standard for polychlorinated biphenyls ("PCBs") in wastewater that is consistent with Canada's provincial and national standards, and Canada's international commitments under the Stockholm Convention on Persistent Organic Pollutants (hereinafter referred to as the "POPs Convention"), and the Declaration on Protection of the Marine Environment from Land-Based Activities (1995);
Response to Request b:
There are no plans at present to establish a legally binding standard under CEPA 1999 with respect to PCBs in wastewater. Current PCB regulatory actions focus on the handling and disposal of existing stocks, as per Canada's commitments under the Stockholm Convention. There are no obligations under the Stockholm Convention with respect to numeric standards for wastewater. Canada is meeting all its commitments under the Convention through existing and planned initiatives.
A federal strategy for wastewater effluents is currently being developed to improve environmental protection and effluent quality. The strategy currently under development, in collaboration with provinces and territories, envisions nationally consistent standards that will be implemented by all jurisdictions, and which the federal government would implement through regulations to be drafted pursuant to the Fisheries Act. It is not anticipated that PCBs will be a class of pollutants addressed specifically in those regulations, as the management of these contaminants is most effective at the source.
Request c: the Minister of Environment use his authority under CEPA to prevent, control or correct water pollution from provincial or municipal sources, to compel the Province of British Columbia and Capitol Regional District (CRD), to amend the CRD's recently approved "Core Area Liquid Waste Management Plan", to address wastewater contamination in a way that meets Canada's international commitment to eliminate and destroy persistent organic pollutants (hereinafter referred to as "POPs") in the waste stream; Canada's commitment to address pollution of the marine environment from sewage as part of Canada's Programme on Marine Pollution from Land Based Activities; Canada's national Oceans Strategy drafted pursuant to the federal Oceans Act, S.C. 1996, c. 31; and the pollution prevention provisions of the United Nations Convention on the Law of the Sea, Art. 207 (pollution from land based sources);
Response to Request c:
By December 7, 2004, the Minister of the Environment intends under CEPA 1999 to put in place an instrument to address three substances found in wastewater that are listed on Schedule 1, for selected wastewater systems. Environment Canada is actively working with the provinces and territories to advance wastewater management in Canada. Environment Canada's proposed long-term strategy for wastewater also responds to Canada's UNCLOS obligations.
Available information does not indicate that PCBs from sewage sources should be targeted on a priority basis. POPs, including PCBs, are being addressed through vigorous domestic and international actions to control PCBs at source and through destruction, as indicated in more detail in Part A, above.
The Province of British Columbia has the statutory authority to approve Liquid Waste Management Plans in British Columbia. The British Columbia Minister of Water, Land and Air Protection approved the CRD's Plan on March 27, 2003, subject to a number of conditions.
Request d: the Minister of Western Economic Diversification allocate budget for the purpose of introducing secondary sewage treatment for all coastal communities in Western Canada, thereby allowing Canada to implement its domestic and international commitments to eliminate PCBs from wastewater and reduce pollution of the marine environment through sewage discharge;
Response to Request d:
Under the Infrastructure Canada Program, funding is allocated for green infrastructure projects: water, wastewater and energy-efficiency retrofit of local government building projects. Through the agreement negotiations, the federal government established with each province the allocation of funding for green projects. In British Columbia, the green target is 75 percent of all program funding for these types of projects, approximately $200 million .
WD has been allocated a program budget and has established "green" targets for British Columbia. However, as the program is application-driven, there is no mechanism to distribute funds for a specific community project, unless the community applies for the project. We recognize that communities are balancing multiple and competing needs, including providing potable water for their citizens.
As referred to in the responses to requests a and b, Environment Canada does not intend at this time to specifically target PCBs in wastewater effluents.
Request e: the Minister of Environment enforce the Fisheries Act, R.S. 1985, c. F-14, against municipalities which continue to discharge POPs including PCBs into the marine environment through wastewater in contravention of section 36 of the Fisheries Act;
Response to Request e:
There are currently no regulations under any federal legislation controlling wastewater effluents. However, the Fisheries Act contains a prohibition against the deposit of a deleterious substance into water frequented by fish.
The Minister of the Environment, through regional Environment Canada Enforcement Offices, has been enforcing subsection 36(3) of the Fisheries Act with respect to wastewater effluent in a number of communities across Canada. Environment Canada officials have inspected wastewater facilities and sampled wastewater effluents. They have taken enforcement actions, including prosecution, which is consistent with the "Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act." The enforcement activities of both Environment Canada and Fisheries and Oceans Canada are guided by this Policy.
Environment Canada intends to develop regulations for wastewater effluents under the Fisheries Act, as part of its long-term risk management strategy. As part of this strategy, Environment Canada is working with other Canadian jurisdictions under the auspices of the CCME to develop a harmonized regulatory framework for wastewater management that recognizes the characteristics of the sector. It is not anticipated that PCBs will be addressed specifically in the federal wastewater strategy, as these are being managed through source controls and destruction, both domestically and internationally.
Request f: the Ministers of the Environment and Fisheries and Oceans initiate a meaningful investigation into the ongoing failure to enforce the pollution prevention provisions of the Fisheries Act in the context of contaminated wastewater discharge into the marine environment, in particular waste water discharge from the CRD;
Response to Request f:
Both Ministers recognize that wastewater effluent may have an impact on fish, fish habitat and human use of fish. Specifically, Environment Canada will continue to conduct inspections and other enforcement-related activities under section 36 of the Fisheries Act. In addition, Fisheries and Oceans Canada will continue to enforce section 35 of the Fisheries Act. The activities of both Departments are guided by the "Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act."
The Fisheries Act Annual Report to Parliament highlights Environment Canada's and Fisheries and Oceans Canada's ongoing inspections and other enforcement activities under the Fisheries Act, such as warnings, Ministerial Orders, injunctions and prosecutions. Since 1998, Environment Canada has conducted over 180 inspections of wastewater facilities. As a result of these inspections, approximately ten inspectors' warnings, twelve referrals to other government authorities and five referrals to investigations were issued. There were also at least five prosecutions of violations under subsection 36(3) in which the violators were found guilty and fined.
Environment Canada is initiating a long-term wastewater management strategy. The strategy uses provisions within Part 4 of CEPA 1999 to address three toxic substances found in wastewater effluents, namely inorganic chloramines, ammonia dissolved in water, and chlorinated wastewater effluents. These substances were recommended by a panel of experts for assessment of the risks they pose to human health and the environment. Following a scientific risk assessment, the substances were determined to be "toxic" as defined in CEPA 1999. Environment Canada has proposed, in June 2003, to use pollution prevention planning to initiate early action to reduce the release of these substances into the environment. Environment Canada's strategy also includes the development of regulations under section 36 of the Fisheries Act, with the advice and support of Fisheries and Oceans Canada. It is intended that the strategy, together with the Compliance and Enforcement Policy, will assist in guiding any enforcement activities for the CRD and for other wastewater discharges in Canada.
Request g: the Ministers of the Environment and Fisheries and Oceans investigate the possible transboundary pollution of the Strait of Juan de Fuca from wastewater emanating from Canadian sources.
Response to Request g:
As described in Part A, Fisheries and Oceans Canada is undertaking a modelling study in this area, within Canadian waters, and is working in collaboration with modelling experts in the U.S. to develop an analysis of transboundary movements of contaminants on the basis of the results of the two modelling studies. (See Part A.1.8.)
Environment Canada wishes to thank the Petitioner and its clients for their interest and support in protecting the marine environment. The management of PCBs is best dealt with at the source, and current and planned domestic and international activities and programs will continue to protect the marine environment.
Environment Canada remains committed to the following:
- Continuing to meet obligations as required through international agreements, including the Stockholm Convention and UNCLOS;
- Working with the provinces and territories to improve wastewater effluent quality and to put in place a harmonized regulatory framework for the sector;
- The broader responsibilities of global stewardship, which Canada shares with other countries, to ensure that practical and effective measures to protect humans, biodiversity and the environment are achieved through the design and operation of a transparent, science- and rules-based international regulatory framework.
October 1, 2004
Ms. Margot Venton, Staff Lawyer
Mr. John Werring, Staff Scientist, R.P. Bio.
Mr. Mitch Anderson, Staff Scientist, P. Ag.
Sierra Legal Defense Fund
214-131 Water Street
Vancouver, British Columbia
Dear Ms. Venton, Messrs. Werring and Anderson:
Thank you for submitting the petition dated April 26, 2004, concerning persistent organic pollutants in wastewater, on behalf of your clients, Georgia Strait Alliance and United Fishermen and Allied Workers Union - CAW.
Most of the issues raised in your petition fall within the mandate of Environment Canada (EC). However, some of the matters relate to the mandate of Fisheries and Oceans Canada (DFO). For instance, DFO is leading efforts to protect and recover the Pacific killer whale. Funding has been allocated under the Species at Risk Program, and the federal Habitat Stewardship Program. In addition, Canada's Oceans Strategy (led and facilitated by DFO in collaboration with other federal departments, other levels of government and aboriginal organizations) provides a potential framework to address issues such as those raised in your petition.
Your petition contained two items which were directed jointly to the Ministers of EC and DFO.
Item "f" focuses on the pollution prevention provisions of the Fisheries Act in the context of wastewater discharges. As you are aware, Environment Canada (EC) has the lead administrative authority for subsection 36(3) of the Fisheries Act. Accordingly, my colleague, the Minister of the Environment is forwarding a separate response.
Item "g" focuses on transboundary water pollution prevention. In this regard, DFO is collecting data from the Strait of Georgia and Juan de Fuca Strait which will be used to model the transport, fate and transformation processes of contaminants, including polychlorinated biphenyls (PCBs) in this area. DFO is working in collaboration with the United States to describe transboundary movements of contaminants on the basis of the results of the modelling studies on both sides of the border.
You will find additional information on the activities of federal government departments in the responses to your petition from my colleagues, the Minister of the Environment and the Minister of Western Economic Diversification. Officials of our three departments have shared information in the preparation of each of the responses.
I thank you for your interest in Canada's marine environment.
[Original signed by Geoff Regan, Minister of Fisheries and Oceans]
September 8, 2004
Sierra Legal Defence Fund
214 - 131 Water Street
Vancouver, British Columbia
Dear Madam / Gentlemen:
Thank you for your letter that was addressed to my predecessor and my colleagues, the former Minister of the Environment and the Minister of Fisheries and Oceans, concerning persistent organic pollutants in wastewater in British Columbia (Environmental Petition No. 112).
Of the seven questions raised, I am pleased to address Request (d), which was directed to Western Economic Diversification Canada and reads as follows:
"The Minister of Western Economic Diversification allocate budget for the purpose of introducing secondary sewage treatment for all coastal communities in Western Canada, thereby allowing Canada to implement its domestic and international commitments to eliminate PCBs from wastewater and reduce pollution of the marine environment through sewage discharge."
Under the Infrastructure Canada Program, funding is allocated for green infrastructure projects: water, wastewater and energy-efficiency retrofit of local government building projects. Through the agreement negotiations, the federal government established with each province an allocation of funding for green projects. In British Columbia, the green target is 75 per cent of all program funding for these types of projects, or approximately $200 million.
The Department has been allocated a program budget and has established green targets for British Columbia. However, as the program is application-driven, there is no mechanism to distribute funds for a specific community project, unless the community submits a project application. We recognize communities are balancing multiple and competing needs, including providing potable water for its citizens.
As referred to in Environment Canada's response to Requests (a) and (b), the Government of Canada does not intend, at this time, to specifically target PCBs in wastewater effluents.
I appreciate your taking the time to express your views on this matter.
[Original signed by Stephen Owen, Minister of Western Economic Diversification and Minister of State (Sport)]