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Environmental Enforcement and Public Health Disasters in Ontario

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This article examines several of the environmental and public health issues that arose within Ontario due to legislative and procedural policies and decisions by the Mike Harris led Progressive Conservative government.

The after effects of these issues were felt widely across the province and continue to do so today.

As will be seen below, civil society groups and institutional officials far and wide criticized the government’s strategy on environmental issues.

Weakened Safety & Enforcement: Ministry of Environment

Ontario has historically been home to a rich, vibrant history of forward driven environmental policies.

Skogstad and Kopas published a paper within the journal of Canadian Environmental Policy in 1992, titled: “Environmental Policy in a Federal System: Ottawa and the Provinces.”

In it, the authors argue that historically, Ontario served as a leader in environmental standard-setting in Canada. They chronicled that in the normal division of responsibility between the federal and provincial governments, the federal government had traditionally brought in new environmental standards while the provinces had taken the lead with respect to implementation and enforcement.

However, Ontario with it’s abundant resources and “pluralist political culture” proved an exception by vying for leadership with the federal government in it’s environmental standard-setting role, causing national standards to rise with its stronger regulatory regime (p57).

But this all changed under the Mike Harris led Progressive Conservative government, whereby Ontario went from being an innovative to a laggard with respect to environmental concerns and conservation.

Ontario witnessed a radical shift away from environmental enforcement due to severe institutional deficiencies as a result of budgetary cuts which would ultimately have grave consequences for the public leading to high profile environmental and public health disasters such as the Plastimet PVC fire, and the Walkerton tainted water Tragedy.

In 2000 Ana Krajnc successfully published a peer reviewed journal article within the Canadian Public Policy on the Ontario Ministry of Environment, titled: “Wither Ontario’s Environment? Neo-Conservatism and the Decline of the Environment Ministry

In it, she documents the levels of spending the Harris Progressive Conservatives had set for the various Ministries of the Province of Ontario. Some of the sharpest cuts were inflicted upon Ontario’s Ministry of Environment’s budget.

In the graph below, courtesy of Ontario Public Accounts, Ontario’s real spending on the Ministry of Environment (and Energy)  is charted from 1971 to 1997.

Ontario Ministry of Environment & Energy Budget Spending

Ontario Ministry of Environment & Energy Budget Spending

What is immediately observable from the graph is that the level of funding granted to the Ministry of Environment has steadily increased over the years, as the population has grown. The first big change occurred under the Rae NDP government in 1993 when, as a result of a ballooning deficit, the government reduced the ministry’s budget by over 200 million.

And beginning in 1995, the cuts under the Harris PC government also implemented cuts to the Ministry, however these were different in nature than those under the previous Rae NDP government.

The Ontario NDP government targeted the bulk of the cuts at the “capital” part of the expenditures for the Ministry of Environment.

As Krajnc points out, these cuts were concentrated mainly in reduced external capital grants to municipalities for water and sewers, as well as grants to universities and other groups, thus not affecting the overall structure and programs of the Ministry of Environment.

The biggest changes came when the Mike Harris led Progressive Conservatives came to power in 1995, when in just a two year period (1995-96) the Ministry of Environment lost a third of it’s budget and it’s staff.

The newer wave of cuts initiated by the Progressive Conservatives targeted the “operating” part of the budget.

The operating part of the budget included the Ministry of Environment’s capacity to perform it’s functions such as salaries for civil servants, administering environmental assessments, regulations, enforcement, etc

Krajnc argues that the drastic shift in environmental policy is due to a neoconservative ideological agenda which was not present of previous majority Conservative governments.

She wrote, “previous Ontario majority governments, including Conservative ones under Premiers John Robarts and Bill Davis, often pursued minor retrenchment, but they also introduced new environmental policies, and were generally responsive to heightened public concern for the environment. Their governing style was one of brokerage politics and accommodation, and there was nothing inherently anti-environmental in the Conservative Party.”

The Ministry of Natural Resources also faced deep cuts to it’s budget as well.

The graph below depicts the Harris PC government’s plan for setting the operating expenditures of various different Ministries of Ontario for 1999-2000.

What is notable is that certain Ministries faced a disproportionate amount of cuts in comparison to others. These would mainly be the Ministry of Environment with a 27% drop from the 1995-96 levels (which already faced significant cuts before the Mike Harris PC’s took power), Ministry of Natural Resources, and Ministry of Labour.

Operating Expenditures for Select Ontario Ministries

Operating Expenditures for Select Ontario Ministries

In Krajnc’s conclusion she wrote, “The Ontario Ministry of Environment has faced a disproportionate share of the cuts in government expenditures since the mid-1990’s. This paper has argued that public pressure and party politics models provide insufficient explanations for the cut-backs. While low salience of environmental issues in public opinion polls and a majority government were necessary conditions, it is the neo-conservative ideology of the Mike Harris government which, in large measure, accounts for the nature and extent of the downsizing. The Harris government has attempted to fundamentally redefine the role of government in protecting public goods. Less government, reduced social spending, and an aversion toward public goods are defining features of its neo-conservative ideology. The elimination of a host of environmental programs, downloading and the turn to alternative delivery systems, often coupled with deregulation and industry self-regulation, together are trademarks of the neo-conservative agenda and have resulted in a diminished role for the Ontario government in environmental protection.”

 

 

Reduced Capacity for Environmental Enforcement

In a large 321 page document released by the Canadian Institute for Environmental Law and Policy (CIELP), the authors looked at and analyzed changes to Ontario’s environmental laws, policies and institutions that took place under the Mike Harris led Progressive Conservative government from June 1995 to June 1999.

The report, titled: Ontario’s Environment and the Common Sense Revolution was composed over a 4 year period and with the help of the Toronto Environmental Alliance, the Canadian Environmental Law Association, the Sierra Legal Defense Fund, the Algonquin Wildlands League, and various governmental departments and agencies from the federal and municipal level.

The report covered a focus on the following:

  • Government wide accountability and democratic structures (i.e. environmental assessment & approvals, land use planning, etc)
  • Environmental Protection (Air Quality/Smog, Waste Management, Water, Energy)
  • Natural Resources Conservation (i.e. forestry, wildlife, fisheries, etc)
  • Mining, transportation and public safety

As the report notes, within just 2 years (from 1995 to 1997), major amendments were made to every significant provincial statute related to environmental protection or natural resources management, with the exceptions of the Environmental Bill of Rights (EBR) and the Power Corporations Act.

According to CIELP, these amendments typically, “weakened environmental protection requirements; expanded ministerial and cabinet discretion in decision-making; reduced or eliminated opportunities for public participation in decision-making and structures for government accountability; established self-regulation systems for a wide range of industries and activities which have major impacts on the environment; and insulated the government from lawsuits arising out of damages resulting from the government’s removal of environmental protection requirements.”

The report outlined that one of the best forms of evidence to determine the impact of the budgetary and personnel reductions to provincial agencies would be to look at the levels in environmental law enforcement activities.

The graph below details the decline in environmental law enforcement activities from 1995 to 1998.

Ontario Ministry of Environment Law Enforcement Activity

Ontario Ministry of Environment Law Enforcement Activity

And as detailed below, the total number of fines also fell dramatically from 1995 to 1998.

Enforcement Fines by the Ministry of Environment from 1985 to 1998

Enforcement Fines by the Ministry of Environment from 1985 to 1998

The report from the Canadian Institute for Environmental Law and Policy assesses that the fines fell as a result of the 28% reduction in the Ministry of Environment’s Investigation and Enforcement branch staff over the period of 1995-1998.

The Sierra Legal Defense Fund also completed an analysis of the Ministry of Environment’s 1996 law enforcement activities in March of 1999. In it, they found that only 3 out of 164 companies and sewage treatment plants that had violated water pollution control requirements had been successfully prosecuted by the Ministry. (14)

Lawyers with the Sierra Legal Defense Fund also obtained a review of reports for water-pollution standards under Ontario’s Freedom of Information Act.

The report found there to be more than 3,000 violations of water-pollution standards that were reported in 1998, up from 1,013 in 1996.

As the globe & mail mentioned, of 167 companies and municipalities that violated the water pollution standards in 1998, two-thirds had been repeat offenders from previous years, and 16 had been on the list for five years running

There were also 223 violations with the capability of killing fish.

The Globe reported, “regionally, only Northern Ontario had a decline in the number of plants violating the standards, but the North continued to have the highest number of violators over all, primarily mining and pulp companies that released chemicals or metals into the water.

And most of the 16 plants that have had violations for five consecutive years were in Southern Ontario.

At the time, John Steele, a spokesman for the Ministry of Environment blamed the increase on more stringent regulations that came into effect between 1996 and 1998. Steele said, “Of course, we’re still not happy. But because we now have tougher regulations, you’re going to see more industries out of compliance.”

Steele also mentioned that even with improvements made already, companies could require an additional several years to bring in the necessary equipment and make changes.

Elaine MacDonald, an environmental scientist who reviewed the pollution reports for the Sierra fund, said the increase in test results over the limits was not a result of tougher regulations.

Macdonald said, “It appears enforcement standards have declined.”

Multiple reports from the Provincial Auditor and from the Environmental Commissioner both were very critical of the government’s environmental performance, which they argued posed a public health risk for Ontarians.

Eva Ligeti, the Environmental Commissioner of Ontario at the time, wrote in her 1997 Annual Report,“This annual report focuses attention on a number of MNR natural resource issues and proposals, including a major overhaul of how the ministry manages natural resources on Ontario’s public lands and how they are allocated to uses such as logging, tourism and conservation. The decisions the Minister of Natural Resources is making in this regard will have long term effects on how future governments manage natural resources in Ontario.”

This exemplifies that significant changes being done to the Natural Resources file would impact future governments to come.

Ligeti later added, “In the face of the announcement in 1997 that State of the Environment reporting in Ontario would be discontinued, I looked at a number of government environmental monitoring programs. I wanted to determine whether these programs are giving Ontario residents the information they need to understand whether progress is being made in protecting our air, water, forests and wildlife. I found that many well-established monitoring programs were being restructured to cope with reduced resources. I also found that significant environmental information is not being collected, or if it is being collected, is not being analysed and reported.”

Based on media reports, environmental inspectors would willingly look the other way to certain environmental infractions, leading to an enforcement crisis.

In one such example, Globe and Mail reporter Martin Mittelstaedt wrote an article titled: “Inspectors told to ignore pollution complaints; Ontario Instructs staff to turn a blind eye to dozens of infractions.

In his article, Mittelstaedt reported on a leaked government document which contained hundreds of pages of confidential instructions to Ministry of Environment staff on which pollution laws and regulations they should enforce or ignore. The leaked document titled: Operations Division Delivery Strategies,  suggested that some environmental laws were not worth investigating for economic reasons.

The leaked document said, “The purpose of the delivery strategy is to focus efforts on areas that will provide the greatest benefit to the environment and human health. This means being selective about the issues we pursue.

The ministry also compiled a list of dozens of “pollution incident reports” to be met with “no further response” by inspectors. Amoung the rules and complaints that inspectors were told to turn a blind eye to or enforce laxly were: illegal dumping of sewage from pleasure boats, many pesticide infractions, foul-tasting drinking water, littering, poorly functioning commercial-recycling programs, and the stench from manure spreading. Inspectors were also told not to enforce a rule requiring soft-drink bottlers to sell 30 per cent of their beverages in refillable containers.

Upon news of the leaked document, a spokeswoman for Environment Minister Norman Sterling reacted angrily after hearing the document had been leaked.

The spokeswoman said, “Whoever leaked this document to you has compromised our ability to protect the citizens of this province and our environment. I mean, this is our enforcement document.”

The Ministry of Environment also directed members of their staff to refer many types of public complaints about environmental issues to municipalities as part of their ‘Delivery Strategy’.

However, no additional resources were provided to municipalities to deal with these demands.

 

Hazardous Wastes

The Canadian Institute for Environmental Law and Policy (CIELAP) published a report in 1998 titled: “Hazardous Waste Management in Ontario: A Report and Recommendations

The report states that the Ontario provincial government had no reliable estimate of the total amounts of toxic and other hazardous wastes generated in Ontario each year, and that the province’s regulatory framework for managing these wastes contained major gaps.

On April 20, 1998 the Canadian Institute for Environmental Law and Policy filed a request for review of the province’s hazardous waste regulations.

The Ministry of Environment stated that a review was “not in the public interest.”

There was a follow up report issued by the institute in March 1999 that found imports of hazardous wastes into Ontario from the United States had quadrupled in frequency between 1993 – 1997.

Hazardous waste imports rose from 52,439 tonnes to 246,000 tonnes per year.

Waste exports remained stable throughout the period.

In response to the waste import figures, the Minister of Environment said , “We have a free trade agreement that limits us. You better speak to the federal government to stop it coming across the border.”

Public Health Disasters

The severity of the cuts imposed by the Harris PC’s on the Ministry of Environment greatly reduced the enforcement capabilities of the institution which is important for other types of regulations, such as the fire code and occupational health and safety regulations, to be effective.

This, combined with certain legislative proposals that reduced or laxed environmental regulation bills would create significant public health implications. Of these, we begin a look at the Plastimet fire.

These enforcement gaps undermined the province’s capacity to monitor activities which may have threatened the health, safety or environment of Ontario residents.

The Plastimet fire in July 1997 took 4 days to burn out. The fire occurred at the Plastimet PVC recycling facility in Hamilton.

 Plastimet was a site that contained approximately 4000 cubic tonnes of burning PVC.

The Harris PC’s government also had several other large policies aimed at deregulation that led to major problems due to the poor management and implementation of the policies.

The fire that occurred produced some of the most carcinogenic toxics into the surrounding Hamilton community’s air and contaminated the soil with the release of benzene, dioxins, furans, and other carcinogenic toxics.

Plastimet Fire

 

 

 

 

 

 

 

Plastimet3

A video of the devastation due to the Plastimet fire can be seen in the video below.

The videographer was one mile away from the incident yet the sheer size of the fire with the thick black smoke makes it seem as if the video has been shot much closer.

 

The company, Plastimet Inc.,  started storing PVC plastics on the site in October of 1995.

It was not until September of 1996 that the Hamilton Fire Department became aware that the operation existed. No fire inspections had occurred for almost a year.

When fire inspectors did tour the site in October 1996, the Ontario fire marshal cited Plastimet Inc. with 25 code violations of the Ontario Fire Code.

The company was given a complete year to come into compliance, despite the fact that the site had a history of fires.

The fire department had been called to the site more than 25 times during the preceding ten years and that both the owner and operator of the site had previous environmental convictions.

15 violations were corrected but these were mostly minor violations that did not cost much to fix.

But at the time of the fire, a million dollar sprinkler system had yet to be installed, the fire wall, the amount of materials at the site had not been reduced, nor had more exits or emergency lighting been installed.

But instead of the Conservative government acknowledging their responsibility in the matter, Ontario’s environment minister at the time, Norm Sterling distanced all blame to his government – concluding, “The city’s failure to enforce the local fire codes led to the blaze at Plastimet Inc.”

The Office of the Fire Marshal issued a report in the aftermath of the July 1997 Plastimet PVC fire titled: “Protecting the Public and the Environment by improving fire safety at Ontario’s Recycling and Waste Handling Facilities”

The report raised serious questions about the adequacy of the province’s regulaton of waste ‘recycling’ and handling sites.

As listed in section 10 – Gaps to be Closed of the report, “At the moment, many Ontario municipalities do not have adequate financial resources to take effective proactive measures that would minimize the environmental, health and safety impact of fires.”

For enforcement, the Fire Marshall report said, “All monies collected for Ontario Fire Code prosecutions by municipalities are kept by the Province. Expenses for prosecution under the Ontario Fire Code are borne by the municipality.”

The after effects of the Plastimet fire can be felt even today.

As recently as 2011, the Hamilton Spectator featured an article detailing the possible link between the Plastimet fire and the death of 5 firefighters due to heart complications. The article is titled: Deadly legacy, Is Plastimet Killing Firefighters?

In 2000, there was yet another large significant disaster, when the U.S.E. Hickson Products Limited chemical factory went up in flames as well.

We now look at another public health disaster that was due in part to the lack of funding for enforcement and decisions to reduce regulatory oversight all in the name of cutting “red tape”.

Walkerton Tragedy

Looking back into history, it seems clear that the Walkerton Tragedy was an accident waiting to happen.

The Walkerton Tragedy resulted in the death of 7 Ontarians with hundreds falling ill to e-coli contaminated water. Some continue to experience abdominal discomfort to this day.

The beginnings of this public health disaster began when the Progressive Conservatives passed the Water and Sewage Services Improvement Act – Bill 107 in 1997.

This bill essentially indirectly promoted the privatization of municipal water and sewer infrastructure without voter assent.

The Act divested provincial of control of any water and sewage plants by downloading these onto municipalities. The Act also laid out the Provincial rules for privatization of any water and sewage utilities.

This, combined with the elimination of Provincial funding for these municipal water and sewage utilities, placed the financial squeeze and the political heat on municipalities to sell these public assets.

During hearings into the bill, Morag Simpson, representative for Greenpeace, spoke out to highlight the future potential dangers as a result of the passage of this bill. She warned legislators saying, “The legislation, Bill 107, that is before this committee today cannot be reviewed on its own merits and has to be assessed in light of other changes that have been made by your government to environmental, municipal and health regulations.

In the last two years since you have taken office, you have substantially revised, revoked and removed a legislative framework that had been put into place over a period of 20 years that had included legislative initiative started by the Tory government of Bill Davis and had been built on solidly by all parties and governments that have taken office at Queen’s Park ever since.

Laying off experienced enforcement officers and expert staff in the labs at the MOEE (Ministry of Environment & Energy) will have a serious impact not only on the quality and safety of water supplies, but also on the public’s perception of agencies to deliver healthy, safe, clean water.
Downloading of responsibility for delivery of essential services to the municipalities without mechanisms for financial support and without an outside and impartial regulator or regulating agency merely sets the stage for the worst kind of privatization. Simply stating that Bill 107 does not privatize water and sewerage services and that the bill does protect the quality of Ontario’s drinking water, without adequate monitoring and enforcement mechanisms and provisions built into the legislation, is just not good enough….With little provincial expertise remaining, and the offloading of responsibility for regulating construction and use of septic systems on municipalities, regardless of whether there is an investment in expert staffing by the municipalities, safety and security are again an issue. Without proper inspection and enforcement, rural septic systems will continue to pose a significant threat to ground and surface water contamination.”

These words, uttered 3 years before the Walkerton Tragedy, eerily seem to foreshadow what was to become one of the biggest public health disasters in Ontario history.

In the aftermath of the tragedy, a public inquiry led by judge Dennis O’Connor examined the events and delineated the causes of the outbreak, including physical causes, the role of the public utilities operators, the public utilities commissioners, the Ministry of the Environment (MOE), and the provincial government.

The inquiry found there were multiple factors that led to the Walkerton Tragedy such as; that improper practices and systemic fraud committed by the public utility operators (Walkerton PUC), the recent privatization of municipal water testing, absence of criteria governing quality of testing, and lack of provisions made for notification of results to multiple authorities all contributed to the crisis.

In fact, the Ministry of Environment noted significant concerns 2 years before the outbreak; however, no changes resulted because voluntary guidelines as opposed to legally binding regulations governed water safety.

In his report titled: Report of the Walkerton Commission of Inquiry, Justice O’Connor said, “the budget reductions [at the Ministry of Environment] had two types of effects on the tragedy in Walkerton. First, with respect to the decision to privatize the laboratory testing of drinking water samples, and especially the way in which that decision was implemented, the budget reductions are connected directly to the events of May 2000. Second, in the case of the MOE’s approvals and inspections programs, the budget reductions are indirectly linked to the events in May 2000 in that they made it less likely that the MOE would pursue proactive measures that would have prevented or limited the tragedy…I discussed the decision in 1996 to discontinue all routine testing of water for municipalities at provincial laboratories – after which the large majority of municipalities, including Walkerton, had to use private sector laboratories for these tests. This decision resulted directly from the decision to reduce the MOE’s budget.”

He further added, “…it is my opinion that the way in which the decision was implemented was deficient in that the associated risks to public health were not properly analyzed or managed, repeated warnings about the risks were not acted upon, and the standards that applied to private laboratories were not properly updated.”

The inquiry concluded that budgetary restrictions introduced by the provincial government 4 years before the outbreak were enacted with no assessment of risk to human health. The ministers and the cabinet had received warnings about serious risks.

However the budgetary cuts destroyed the checks and balances that were necessary to ensure municipal water safety.

He said, “the failures at Walkerton were not failures of the drinking water quality objectives as such but of the systems that were supposed to ensure they were met.”

Justice O’Connor also flatly rejected the Ontario government’s argument that the public utilities  manager was solely responsible for the outbreak:

The MOE was and continues to be the provincial government ministry with the primary responsibility for regulating – and for enforcing legislation, regulations and polices that apply to – the construction and operation of communal water systems.

…Given that the MOE was responsible for overseeing the construction and operation of the Walkerton water facility, its activities must also be considered in order to determine if it adequately fulfilled its role and, if not, whether a proper exercise of its responsibility would have prevented the outbreak, reduced its scope, or reduced the risk that the outbreak would occur.

At the inquiry, the government argued that I should find that Stan Koebel was the sole cause of the tragedy in Walkerton, and that I should find that government failures, if any, played no role – the suggestion being that if it were not for Stan Koebel’s failures, the tragedy would not have occurred. I reject that argument completely. It totally misconceives the role of the Ministry of Environment as overseer of communal water systems, a role that is intended to include ensuring that water operators and facilities operate satisfactorily…

The government’s argument also ignores the fact that the only thing that could have completely prevented the outbreak in Walkerton was the use of continuous chlorine residual and turbidity monitors at Well 5. The failure to use continuous monitors at Well 5 resulted from shortcomings of the MOE in fulfilling its regulatory and oversight role, not from failures of Walkerton PUC operators.

In a classroom visit to Ryerson University in 2012, Mike Harris was asked about the Progressive Conservative government’s role in the Walkerton Tragedy.

Mike Harris denied his government’s responsibility by saying, “Did cutbacks contribute to Walkerton? Not one whit. Walkerton was made worse by one thing:  lab testing. (The NDP government) allowed municipalities to use private sector labs. You think they’d alert everyone when they got questionable readings. But they did not. They alerted the Koebel brothers (who ran the water treatment plant) and they told no one. Walkerton happened because two unqualified people working in the public sector lied and cheated. I doubt those two unqualified guys would have survived in the private sector. A private sector company would have fired them long before Walkerton took place. But they were protected by public sector unions.”

Arthur Schafer, Professor at the University of Manitoba and Director of the Centre for Professional and Applied Ethics  holds a different opinion on the issue.

Schafer issued a short document titled: “Premier Harris and Walkerton: Does ignorance excuse?” in which he summarizes the consequences of the Harris PC government’s legislative decisions.

In his extraordinary testimony before the Walkerton Inquiry, Premier Harris claimed not to have known that there was “Any risk” associated with such measures as his government’s elimination of public water-testing laboratories or its elimination of inspections of closed waste dumps. Harris later contradicted himself on this point when he admitted that he did know of the risks, but considered them “manageable”….so was he ignorant or not? In an important sense, it doesn’t really matter…Mike Harris had a clear responsibility to ensure that he and his Cabinet were fully aware of the costs, human as well as financial, for government cutbacks. Testimony before the Inquiry, however, suggests that the culture of de-regulation-at-all-costs”, which animated the government’s so-called Red Tape Commission, was one which enthusiastically subordinated public safety to “the bottom line”.

All in all, the Mike Harris led Progressive Conservative government’s first term in power from 1995 – 99 saw the reversal of 2 long term trends in Ontario’s history.

The first was the weakening in the protection of Ontario’s environment and the conservation of its natural resources that has taken place over the previous half century.

In this regard, there has been a wide scale dismantling of environmental laws and institutions without precedent in the history of the province.

The second is in combination with the government’s abandonment of any form of positive industrial strategy, this approach seems likely to result in a deepening of the province’s economic reliance on primary resource extraction activities, such as mining, forestry, and agriculture.

This is a dependency that previous governments of Ontario, dating back to before the time of Confederation, sought to reverse.

Table of Contents:

Rainy Rae Days

The Mike Harris Revolution

Streamlining Regulation and

Provincial Downloading

Tax Cuts: On Borrowed Money and Time

Ontario Firesale: Highway 407 Hijack

Ontario Hydro Path to Privatization

Environmental Enforcement and Public Health Disasters in Ontario

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