Follow-up petition on an alleged discharge of sewage sludge into the St. Lawrence River near the municipality of L'Isle-Verte, Quebec

Petition

[OAG translation]

Public document

By fax + mail: 1-613-957-0474, 1-613-941-8286

Follow up to Petition No. 303-B

March 10, 2011

FOLLOW UP TO PETITION NO. 303-B

Environment Canada

1. Pursuant to section 22 of Canada’s Auditor General Act, I am following up on your reply to Petition No. 303 concerning the decision by the municipality of L'Isle-Verte and the Quebec ministry of municipal affairs, with the approval of the Quebec ministry of the environment, to illegally discharge directly into the St. Lawrence River contaminated sediment which has been held in two aeration ponds since 1997, plus untreated wastewater.

Follow-up to Petition No. 303-B

2. Environment Canada

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14. COMMENT:

Petition No. 303

P.S.: The response to the English-language portion was missing.

[Original signed by Gaston Hervieux]

Gaston Hervieux, Petition No. 303-B

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Minister's Response: Environment Canada

29 July 2011

Mr. Gaston Hervieux
260, rang de la Montagne
L'Isle-Verte QC G0L 1K0

Dear Mr. Hervieux:

I am pleased to respond to your Environmental Petition No. 303‑B, to the Commissioner of the Environment and Sustainable Development, regarding the dumping by the Municipality of L'Isle-Verte of sludge from its aeration basins into the St. Lawrence River.

I note that this petition is a request for additional information with respect to the reply that you received from Environment Canada to your Environmental Petition No. 303. I also note that, in this new petition, you claim that the Municipality of L'Isle-Verte and the Quebec Ministry of Municipal Affairs, Regions and Land Use illegally dumped contaminated sediment from two aeration tanks into the St. Lawrence River with the consent of the Quebec Ministry of Sustainable Development, Environment and Parks. Enclosed you will find Environment Canada’s response to your petition questions.

I appreciate your interest in this important matter, and trust that you will find this information useful.

Sincerely,

[Original signed by Peter Kent, Minister of the Environment]

The Honourable Peter Kent, P.C., M.P.

c.c.: Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

Environment Canada’s Response to Environmental Petition No. 303-B, pursuant to section 22 of the Auditor General Act, concerning dumping by the Municipality of L'Isle-Verte of sludge from its aeration basins into the marine environment

Question 2(1): We would appreciate a reply to question 1 [of Environmental Petition No. 303], which asks you to outline the procedure for emptying wastewater from an aeration basin in the event that work needs to be performed inside the basin. Could you please answer this question clearly and stop referring us to violators who are the subject of a complaint filed with Environment Canada, Environmental Emergencies?

Answer: Environment Canada does not prescribe or authorize any particular procedure for emptying wastewater from an aeration basin. However, the party responsible for such work must ensure that it is carried out in accordance with the provisions of the Fisheries Act.

Question 2(2): In your reply to question 2 of petition 303, you state on the subject of jurisdiction that:

“As a general rule, the responsibility for environmental protection in Canada is shared between the federal and provincial/territorial governments.”

Also, you did not provide your replies to petition 303 in both official languages (French and English), and you mixed the two languages in your replies to petition 303 and in information from the replies written by other stakeholders. We conclude from the following that you have a responsibility to give a clear answer to the questions that are directed to you. Don't you agree?

“Question 7: Answer provided by DFO

Under the terms of the Fisheries Act, what role will Fisheries and Oceans Canada play in this matter?

Answer:

As you know, Fisheries and Oceans Canada (DFO) is responsible for enforcing the Fisheries Act. However, the concerns raised in this petition fall under the jurisdiction of Environment Canada (EC). DFO is responsible for the administration and enforcement of the habitat protection provisions of the Fisheries Act, and EC has been assigned responsibility for administration and enforcement of the pollution prevention provisions, as outlined in the 1985 Memorandum of Understanding between DFO and EC.

The specific concerns raised about pollution resulting from municipal wastewater discharges fall under the pollution prevention provisions of the Fisheries Act, administered by Environment Canada, as mentioned above."

Answer: Pursuant to subsection 22(3) of the Auditor General Act, the Minister must send his response to the petitioner. On January 27, 2011, Environment Canada sent you replies to the questions in your Environmental Petition No. 303. A review of your new petition (303-B) suggests that the replies we provided to you were not clear. If that is the case, we hope that this information will provide the necessary clarification.

You also indicate that we failed to reply to your petition in both official languages. Our procedure is to reply in the same language used by the petitioner. However, petitions and replies are posted on the website of the Auditor General of Canada in both official languages.

Question 2(3): Can you provide the exact reference to the operating manual to which you refer in your reply to question 1 (303), the one for the management of what they call aeration basins? And can you provide information on how a copy of this manual can be obtained?

Answer: Environment Canada does not have this type of document.

Question 2(4): In your reply to question 1 (303), you state that the owner or manager of an aeration basin must comply with federal and provincial legislation. Can you explain why the municipality involved in the illegal discharge of sludge into the marine environment (see complaint filed with Environmental Emergencies Quebec and Environment Canada, Environmental Emergencies and referred to in petition 303) has not been charged by your department with a violation of the pollution prevention provisions of the Fisheries Act for having contaminated fish habitat by discharging contaminated sediment and untreated wastewater directly into the marine environment (the St. Lawrence River), specifically the Baie de l'Isle-Verte National Wildlife Area, which contains a Ramsar site adjacent to the Saguenay-St. Lawrence Marine Park and a biosphere reserve that contains species of special concern, threatened species, species at risk, including the endangered Beluga?

Answer: Criminal prosecution for an offence is not the Department's only means of enforcement. The Act, as well as the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act (the Enforcement Policy),allows an officer to choose among several different enforcement measures, ranging from a warning to criminal prosecution. The most appropriate measure under the circumstances depends on several factors, including the alleged offender's history of compliance, the severity of the damage to fish habitat, the alleged offender's intent, and whether it is a repeat offence.

With respect to the complaint that you filed, one factor that Environment Canada considered is that work was carried out on the aerated lagoons in L'Isle‑Verte to improve the environmental performance of the treatment system. The Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 3(1): Given the evasiveness of the reply to question 2 of petition 303, and given that Environment Canada has received an official complaint against the violators (see paragraph 1 of this present petition 303-B), can the Department state the grounds for investigation under the Fisheries Act, make public the details of its investigation in this matter, the investigation results and the required follow-up?

Answer: Under the Fisheries Act, the Department has no obligation to give an account of an investigation or its outcome to a complainant who makes such a request. To obtain information about an entity that was the target of an enforcement activity, a request under the Access to Information Act (R.S.C., 1985, c. A-1) must be filed.

Question 3(2): Further to paragraph 2 of Environment Canada's reply to question 2 of petition 303, can you state whether dilution is or is not a severity factor that could legally permit this discharge into the marine environment?

Answer: Subsection 36(3) of the Fisheries Act prohibits the deposit of deleterious substances into fish habitat. When there is a violation, the responsible officer chooses a law enforcement measure based on the criteria set out in the Enforcement Policy. One of the criteria is the degree of real or potential harm. The dilution factor may be used in assessing the harm done. However, harm is not the only criterion assessed when selecting the most appropriate enforcement measure in a particular case.

Question 3(3): Environment Canada is aware that an environment can be lawfully filled with contaminants and toxins up to the legal limit. If there is reliance on dilution, how can Environment Canada take account of accumulation in the receiving environment, identify a sensitive environment, assess bioaccumulation in living organisms, and identify a threatened biodiversity zone?

Answer: Subsection 36(3) of the Fisheries Act is a general prohibition. A regulation can allow for an exemption from this prohibition for substances expressly designated in a federal regulation and for which quantity limits or maximum concentrations are set. When the Department develops a regulation, it considers, among other things, the factors that you have listed for enacting allowed concentrations of a specific deleterious substance.

Question 3(4): How did Environment Canada react following the complaint by Gaston Hervieux, supported by Francis Dubé, the former manager (since 1997) of the aeration basins in question?

Answer: As previously indicated, Environment Canada took into consideration the fact that work was carried out on the aerated lagoons in L'Isle-Verte to improve the environmental performance of the treatment system. In addition, as indicated above, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 3(5): How are you able to assess the synergistic impact of the discharge on biodiversity in sensitive environments?

Answer: As previously indicated, subsection 36(3) of the Fisheries Act prohibits the deposit of a deleterious substance in water frequented by fish. When there is a violation, the responsible officer chooses a law enforcement measure based on the criteria set out in the Enforcement Policy. One of the criteria is the degree of real or potential harm. The impact of discharges on the aquatic biodiversity can then be used to assess the criterion of the level of damage caused. However, as indicated previously, harm is not the only criterion assessed when selecting the most appropriate enforcement measure in a particular case.

Question 3(6): Can Environment Canada tell us whether, apart from the “criteria” it takes into account the action that has been performed, particularly in this case where an operating manual exists and training is available?

Answer: Another of the criteria used in choosing a law enforcement measure regarding a violation of subsection 36(3) of the Fisheries Act is the intentions of the violator. The action performed by the violator can be used in assessing the intentions. Again, however, that is not the only criterion assessed when selecting the most appropriate enforcement measure for a particular case.

Question 4(1): In paragraph 3 of your reply to question 2 in petition 303, why do you refuse to provide a complete answer even though you have the means to do so? What restrictions, deficiencies, constraints, shortcomings, etc. are you faced with?

Answer: In order to answer question 2 in Environmental Petition No. 303, regarding the consequences of emptying the aeration basins, it would be necessary to carry out an inspection to verify compliance with the Fisheries Act.

As previously indicated, among the factors considered by Environment Canada was the fact that work was carried out on the aerated lagoons in L'Isle-Verte to improve the environmental performance of the treatment system. In addition, as indicated above, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.
 
Question 4(2): Is your silence acceptable, particularly since you have not contacted the complainants in any way?

Answer: During the inspection, the responsible Environment Canada enforcement officer can contact the complainants, if he/she deems this necessary.

Question 5: In reference to the concerns raised in petition 303, why is Environment Canada refusing to enforce the pollution prevention provisions of the Fisheries Act that fall under its jurisdiction?

Answer: Environment Canada is responsible for enforcing the pollution prevention provisions of the Fisheries Act, and does so in compliance with the Enforcement Policy.

In this case, as previously indicated, given that Environment Canada took into consideration the fact that work was carried out on the aerated lagoons in L'Isle‑Verte to improve the environmental performance of the treatment system, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 6: Concerning your reply to question 3 of petition 303, how do you explain that it is up to the petitioner to answer his own questions, when Environment Canada is responsible for the enforcement of the pollution prevention provisions of the Fisheries Act?

Answer: The response to question 3 in your Environmental Petition No. 303 should be interpreted by taking into account that Environment Canada neither gives advice to regulated parties on the steps to be taken to avoid discharges, nor authorizes any specific practice or technology. It is incumbent upon the party governed by the legislation to ensure that the steps that he/she takes will not allow deleterious substances to be deposited into fish habitat.

Question 7: Is it reasonable, within the context of what should be an investigation by Environment Canada, for the petitioner to have to ask the Government of Quebec (some of whose departments are violating the Fisheries Act by authorizing and/or approving an illegal discharge into the marine environment) whether it intends to install seals on the drain valves, or have them installed, in order to prevent such illegal discharges?

Answer: We understand by this question that you interpret our answer to question 3 of Environmental Petition No. 303 as asking you to intervene to have the Government of Quebec put seals on release valves. However, that is not the case. As indicated in the response to question 6 above, Environment Canada neither gives advice on the steps to take to avoid discharges nor authorizes specific technologies or practices. It is incumbent upon the party governed by the legislation to ensure that the steps that he/she takes will not allow deleterious substances to be deposited into fish habitat.

Question 8: Is Environment Canada responsible for determining whether the violators will be taking steps, either by the installation of seals or otherwise, to avoid repeat offences against this same legislation?

Answer: If there has been a violation of the Fisheries Act (which must be determined through an inspection), the responsible officer will select the appropriate enforcement measure. As specified in the Enforcement Policy, the purpose of enforcement is to bring about a return to compliance and an avoidance of repeat occurrences.

Question 9(1): Is the rapid discharge of the contents of aeration basins directly into the marine environment a common practice known to Environment Canada?

Answer: No.

Question 9(2): Does Environment Canada endorse this practice? If not, what legal action has it taken against offenders?

Answer: As previously indicated, Environment Canada does not endorse or authorize any particular way of managing an aeration basin. Those responsible for managing aeration basins must ensure that the basins are managed in a way that complies with the provisions of the Fisheries Act prohibiting the deposit of deleterious substances in water frequented by fish.

Question 10(1): Do you intend to add to your replies with respect to prevention measures you have undoubtedly taken to ensure compliance with the provisions of the Fisheries Act?

Answer: We understand you to be referring to compliance promotion measures. Environment Canada does engage in promotional activities to increase compliance by those subject to the pollution prevention provisions of the Fisheries Act. Otherwise, Environment Canada ensures that it is in compliance with the Fisheries Act when it conducts an inspection.

Question 10(2): What are these measures?

Answer: Compliance promotion measures include presentations to groups, official and unofficial interactions with those subject to the Act, and the provision of information on the Internet.

Question 11: The following refers to questions 4 and 5 of petition 303. How did Environment Canada apply the criteria set out in the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Actin the case of the violation of the Act by the municipality of L'Isle-Verte, acting through the municipal inspector and the Quebec Department of Municipal Affairs in Rimouski, and with the support of the Quebec Department of the Environment (in Rimouski), in the form of direct discharging into the St. Lawrence River of sediment that had been contained since 1997 in two aeration basins which were rapidly emptied along with their untreated wastewater? (one aeration basin is missing…)

Answer: As previously indicated, Environment Canada is responsible for enforcing the provisions of the Fisheries Act that involve pollution prevention and fish habitat protection. However, as Environment Canada took into consideration the fact that work was carried out on the aerated lagoons in L'Isle-Verte to improve the environmental performance of the treatment system, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 12(1): Concerning your answer to question 9 in petition 303, can you state, based on your agreement, on what date the Government of Quebec will make public the regulations which it has said it will adopt as part of a strategy for the management of municipal wastewater effluent?

Answer: As indicated in our answer to question 9 in Environmental Petition No. 303, we worked with the Government of Quebec and other provincial governments to implement a strategy for the management of municipal wastewater effluent through the Canadian Council of Ministers of the Environment (CCME). Although the Government of Quebec has not officially approved the strategy, it has informed us that it is developing a regulation for municipal treatment systems. However, Quebec has not advised us as to when it plans to make the regulations public.

Question 12(2): Meanwhile, how is the discharge of the contents of aeration basins and the operation of such basins governed? Can you please supply specific references in this regard?

Answer: As indicated previously, at the federal level, subsection 36(3) of the Fisheries Act is a general prohibition. A regulation can be used to allow an exemption from this prohibition for substances expressly specified in the regulation for which maximum concentrations are stated. Federal draft regulations on wastewater treatment systems were published in the Canada Gazette in March 2010. Pending the regulations’ coming into effect, the general prohibition in the Fisheries Act applies.

Question 12(3): How can you explain the fact that the Government of Quebec currently supports (authorizes) the discharge of sediment from aeration basins directly into watercourses, specifically the St. Lawrence River in this case, with complete impunity?

Answer: Both orders of government have an environmental responsibility within the limits of their constitutional jurisdiction and for the legislation that they enforce. The environment is a field where there may be overlapping jurisdiction. A party or action governed by a federal and a provincial act must comply with both acts. Environment Canada is in no way responsible for what the Government of Quebec allows with respect to activities that fall under the province’s jurisdiction.

Question 12(4): Does Environment Canada wish to explain its investigation procedure in this case: what was checked and what were the results of its investigation?

Answer: Once an inspection is complete, if the responsible officer has reasonable grounds to believe that there has been a violation of the Fisheries Act, the enforcement measure appropriate to the circumstances will be applied, based on an evaluation of the criteria set out in the Enforcement Policy. If the enforcement measure were to be a prosecution, an investigation would be necessary to seek evidence that would establish the offence beyond any reasonable doubt in a court of law. If necessary, charges could be filed before a tribunal of competent jurisdiction, and a trial could ensue.

Question 12(5): Once it was determined that violations had occurred, how much were the offenders fined?

Answer: There were no criminal prosecutions.

Question 12(6): You state that you are unable to regulate the actions of the Government of Quebec. However, what measures have you applied to force the Government of Quebec to comply with federal legislation, particularly in this case, which involves an intentional, premeditated offence?

Answer: With respect to the first part of your question, we do not believe that we previously stated that we were not in a position to regulate the Government of Quebec. Regulations on wastewater effluents are about to be adopted under the Fisheries Act.

To answer the second part of your question, as previously indicated, Environment Canada did consider, among other factors that work on the aerated lagoons in L'Isle-Verte was carried out to improve the environmental performance of the treatment system. Therefore, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 12(7): Where and how did you take legal action? What outcome was sought?

Answer: No legal action has been taken.

Question 13(1): In your reply to petition 303, you wrote:

“In accordance with section 22 of the Auditor General Act, I am writing in reply to your environmental petition 303 concerning the operation of the wastewater treatment plant in the municipality of L'Isle-Verte.”

Since there is no wastewater treatment plant in the municipality of L'Isle‑Verte (303), what explanation does Environment Canada have for unilaterally distorting the title of a petition without the consent of the petitioner, and subsequently repeating that distortion in its reply to the petition?

Answer: We do not agree that there is no wastewater treatment plan in L'Isle‑Verte. The function of the aeration basins is to treat wastewater. Those systems are widely used in many countries to reduce the contaminants in municipal wastewater. We believe that an aerated basin meets the definition of a wastewater treatment plant. It is the discharging of effluent from such plants that must comply with the Fisheries Act.

Question 13(2): Is it not the case that Environment Canada has simply washed its hands of its responsibilities by refusing to investigate the direct discharge into the St. Lawrence of sediment and untreated wastewater from two aeration basins in the municipality of L'Isle-Verte?

Answer: In this case, as previously indicated, as Environment Canada took into account that work was carried out on the aerated lagoons in L'Isle-Verte to improve the environmental performance of the treatment system, the Department conducted an inspection on June 10, 2011 to verify compliance with the Fisheries Act. The findings’ conclusions are in progress.

Question 13(3): In reference to Environment Canada's reply (3rd paragraph) to question 2 of petition 303, can Environment Canada deny the allegation that it never intervened in this case and never investigated the complaint filed with Environment Canada, Environmental Emergencies (by G.H. and F.B.), followed by petition 303?

Answer: See answer to question 13(2).

Question 13(4): Environment Canada? Can you explain how the public can learn about the complaints filed with Environment Canada, track the disposition of those complaints and find out the results?

Answer: Environment Canada could reply to a general request regarding the number of complaints received and processed and the resulting outcome. However, some of the information related to individual complaints will clearly be protected under the Privacy Act, and there will certainly be exceptions pursuant to the Access to Information Act.

Question 13(5): What is Environment Canada's policy on transparency, and is Environment Canada obliged to be accountable to the public under that policy?

Answer: Environment Canada makes public reports on its actions. A report on the Fisheries Act that takes into account the provisions administered by Environment Canada is submitted annually to Parliament by the Minister of Fisheries and Oceans.

Question 13(6): Is Environment Canada currently experiencing problems of some sort, and what is it waiting for to address those problems?

Answer: Environment Canada takes the required steps to solve any problems that it may encounter.