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The federal government has reached an equivalency agreement with Quebec over wastewater pollution regulations intended to protect fish. Under the federal Fisheries Act, the federal government can agree NOT to apply its regulations in a province, if it agrees that provincial regulations in that province provide “equivalent” protection. A similar agreement was reached in December for the Yukon.
The official explanation from the Canada Gazette for the Quebec order follows:
Quebec’s laws and regulations for managing wastewater effluent provide, for the wastewater systems covered by them, controls equivalent in effect to those under the federal Wastewater Systems Effluent Regulations (WSER). The two levels of government have negotiated the proposed Canada–Quebec Agreement on Acts and Regulations Applicable to the Quebec Municipal Wastewater Treatment Sector(proposed equivalency agreement). The proposed equivalency agreement would allow the Governor in Council, through the proposed Order Declaring that the Wastewater Systems Effluent Regulations Do Not Apply in Quebec (proposed Order), to stand down the WSER for those wastewater systems in Quebec that are subject to both federal (WSER) and provincial regulatory requirements and to stand down subsection 36(3) of the Fisheries Act for any deposit of effluent from the final discharge point of those systems that would otherwise have been regulated by the WSER. This would reduce regulatory duplication while still ensuring the same reduction of harmful substances deposited to Canadian surface water from wastewater effluent.
Effluent from wastewater systems represents one of the largest sources of pollution, by volume, in Canadian waters. Negative impacts on aquatic ecosystems from harmful substances found in wastewater effluent have been documented domestically and internationally for over 25 years. In Canada, the management of wastewater is subject to shared jurisdiction, which has led to inconsistent regulatory regimes and varying levels of treatment across the country. Interested parties have consistently indicated the need for all levels of government to develop a harmonized approach to managing the wastewater sector in Canada.
To address this situation, the WSER were developed under the Fisheries Act and published in July 2012. The goal of the WSER is to set national baseline effluent quality standards achievable through secondary treatment or equivalent. The WSER deliver on a federal commitment in the Canada-wide Strategy for the Management of Municipal Wastewater Effluent (CCME Strategy). The CCME Strategy was developed under the auspices of the Canadian Council of Ministers of the Environment and endorsed in 2009. It represents a collective agreement to ensure that wastewater effluent is managed under a nationally harmonized framework that is protective of the environment and human health, and states that each jurisdiction will use its authority to achieve the goals committed to and set out in the CCME Strategy.
The WSER apply in respect of a wastewater system that deposits a deleterious substance prescribed in the WSER to surface water via the final discharge point and that is designed to collect, or actually collects, an average daily volume of influent of 100 m3 or more in a year.
As per a key commitment of the federal government in the CCME Strategy, the federal regulations (WSER) could be administered through bilateral agreements between the federal government and each of the provinces and Yukon. These agreements would clarify the roles and responsibilities of jurisdictions in administering the WSER and set a precedent in the area of cooperative wastewater management in Canada. In 2012, subsequent to the implementation of the CCME Strategy, new provisions were added to theFisheries Act to allow the federal government to establish an equivalency agreement if provisions under the laws of a province are found to be equivalent in effect to provisions of the federal regulations. When this is the case, the Governor in Council may, by order, declare that provisions of the federal regulations and certain provisions of the Fisheries Act do not apply within that province. The proposed equivalency agreement and proposed Order for the WSER have been developed for Quebec under these new provisions.
The objectives of the proposed Canada–Quebec equivalency agreement and the proposed Order are to reduce regulatory duplication and to increase regulatory clarity and efficiency for the management of wastewater systems in Quebec.
The proposed Order has been developed under the Fisheries Act and would remove the application of the WSER for municipally and provincially owned wastewater systems in Quebec that would otherwise be covered by both federal (WSER) and provincial requirements, and would remove the application of subsection 36(3) of the Fisheries Act with respect to deposits of effluent, which would otherwise have been regulated by the WSER, made from the final discharge point of those systems. The basis for the proposed Order is the proposed equivalency agreement, which would provide that Quebec’s regulatory requirements and the WSER are equivalent in effect with respect to the municipally and provincially owned wastewater systems.
The proposed equivalency agreement has been developed under the Fisheries Act and would cover wastewater systems subject to both federal (WSER) and provincial regulatory requirements. Quebec’sRegulation respecting municipal wastewater treatment works (Quebec regulation), made under the authority of the Quebec Environment Quality Act, only applies to municipally owned wastewater systems, which represent more than 90% of systems covered by the WSER in the province. While the proposed equivalency agreement covers both municipally and provincially owned systems, the final equivalency agreement would cover provincially owned systems only if Quebec regulatory requirements that are equivalent in effect to those in the WSER are in force for those systems.
Quebec’s current regulatory regime for municipally owned systems results in wastewater system performance that is equivalent in effect to that required by the WSER. Municipally owned systems in Quebec are subject to mandatory requirements that are set out in the Quebec regulation. Those systems must meet standards for concentrations of deleterious substances in effluent that are equivalent in effect to those in the WSER. The WSER effluent quality standards are as follows:
The standards for CBOD matter and for SS in the Quebec regulation are the same as those in the WSER. The Quebec regulation does not include a standard for TRC. However, a Quebec ministerial position entitledDésinfection des eaux usées traitées — Position du ministère du Développement durable, de l’Environnement et des Parcs prohibits the use of chlorination systems and chlorination- dechlorination systems for the disinfection of wastewater effluent. In addition, section 20 of the Environment Quality Actof Quebec prohibits the discharge of an acutely toxic effluent or of contaminants likely to cause damage or impair wildlife quality, and prohibits the discharge of chlorinated wastewater effluent. The Quebec regulation includes a requirement to maintain an effluent that is not acutely lethal. This requirement is considered equivalent in effect to the standard for TRC in the WSER, which defines TRC as a substance associated with an acutely lethal effluent. It is necessary to maintain a concentration of TRC below 0.02 mg/L in order to have an effluent that is not acutely lethal. These provisions are thus considered equivalent in effect to the requirements for chlorine in the WSER. The authority provided under theEnvironment Quality Act of Quebec is reflected in the proposed agreement. The Quebec regulation requires that all systems have an effluent that is not acutely lethal, thus the regulation is equivalent in effect to the WSER. The Quebec regulation does not include a standard for NH3. However, the requirement in the Quebec regulation to maintain an effluent that is not acutely lethal is considered equivalent in effect to the standard for NH3 in the WSER, as NH3 in the WSER is a substance associated with an acutely lethal effluent. It is necessary to maintain a concentration of NH3 below 1.25 mg/L in order to have an effluent that is not acutely lethal.
The monitoring and reporting requirements in the WSER are based on the size and type of wastewater system. Larger, continuously discharging systems are required to monitor and report with greater frequency. The monitoring requirements in the Quebec regulation are also based on the size and type of wastewater system. A greater monitoring frequency is required of larger, continuously discharging systems, closely paralleling the WSER. Under the Quebec regulation, reporting is required both monthly and annually for systems with any level of treatment, which is more frequent than the quarterly or annual reporting frequency required under the WSER. The Quebec regulation does not require monitoring or reporting for the wastewater systems currently without treatment. However, Quebec does have in place interim monitoring and reporting obligations for these systems, and this information will be publicly available. Also for these systems, the Quebec regulation requires an action plan to be submitted to the province on measures to be taken to comply with the effluent quality standards and an implementation schedule for those measures. Under the WSER, owners and operators are required to keep records of laboratory results and a copy of each report submitted for a period of 5 years. Under the Quebec regulation, the operator of the system must maintain a register on the operation of the wastewater system, including all data and measurements collected and a copy of all reports submitted, for a minimum of 10 years. Thus, with respect to monitoring, reporting and record-keeping requirements, Quebec is considered to have requirements that are equivalent in effect to the WSER.
Quebec’s compliance and enforcement provisions along with the Quebec Directive sur le traitement des manquements à la législation environnementale also constitute a level of assurance with regard to compliance verification and enforcement that is equivalent to that in the Fisheries Act and the federalCompliance Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act.
Quebec and Canada will share information respecting the proposed equivalency agreement. Quebec will inform Canada annually of the publication of information on the administration and enforcement of the Quebec provisions applicable to wastewater systems. Quebec will provide to Canada written notification of any proposed and actual amendments to any Quebec provisions relevant to wastewater systems. Canada will provide to Quebec information regarding proposed and actual amendments to the Fisheries Act, the WSER, or other relevant provisions. Quebec and Canada agree that the agreement will be evaluated every five years.
Either party to the agreement may terminate the agreement with at least six months’ written notice. As per subsection 4.2(5) of the Fisheries Act, the Order would cease to have effect if the equivalency agreement is terminated, and the WSER would apply again to municipally and provincially owned wastewater systems in Quebec.
The “One-for-One” Rule does not apply to this proposal, as none of the regulated parties are businesses. There is no change in administrative costs to business.
The small business lens does not apply to this proposal, as none of the regulated parties are businesses.
Environment Canada has been conducting consultations on various instruments for the management of wastewater since 2002, and feedback from stakeholders has consistently indicated that there is a need to improve wastewater management in Canada and a desire that all jurisdictions work together.
Environment Canada held 26 one-day consultation sessions across the country between November 2007 and January 2008. The consultation sessions involved more than 500 participants from Aboriginal communities and organizations, municipalities and associated organizations, environmental non-governmental organizations, and federal departments and agencies. The objective of these sessions was to provide stakeholders and interested parties with detailed information and solicit input on Environment Canada’s Proposed Regulatory Framework for Wastewater and the proposed CCME Strategy. The administration of the WSER through bilateral agreements between the federal government and each of the provinces and Yukon in order to clarify the roles and responsibilities of jurisdictions was part of these consultations.
Interested parties indicated support for the development and implementation of a harmonized approach to managing the wastewater sector in Canada. They expressed interest in the development of bilateral agreements between the two levels of government in order to minimize duplication and the regulatory burden on stakeholders.
The proposed WSER were published in the Canada Gazette, Part I, on March 20, 2010, for a 60-day public comment period. A total of 189 written submissions were received and taken into consideration. Parties that submitted comments included all provincial and territorial governments, municipalities and their organizations, Aboriginal communities and their organizations, federal departments, owners of private wastewater systems, consultants, environmental non-governmental organizations and the general public.
Comments received supported the administration of the WSER through bilateral agreements between the federal government and each of the provinces and Yukon and indicated a desire to have the agreements put in place quickly. Since 2010, stakeholders have continued to state their desire for bilateral agreements to reduce regulatory duplication.
Through publication of the WSER in the Canada Gazette, Part II, the Government of Canada reiterated its intention to establish bilateral agreements between the federal government and each of the provinces and Yukon to define the primary interface for administration of the WSER for owners and operators of wastewater systems.
Both the Quebec government and wastewater system owners and operators have expressed support for the proposed equivalency agreement and the proposed Order for the WSER to reduce regulatory duplication in the sector.
Regulatory clarity would be achieved since only one regime would apply in Quebec for municipally and provincially owned systems that would otherwise be subject to both federal (WSER) and provincial regulatory requirements. The result would be streamlined wastewater effluent quality standards, reporting requirements and compliance timelines for municipally and provincially owned wastewater systems. For those systems, reduced regulatory duplication and greater regulatory efficiency would be achieved in Quebec.
There would be slight cost savings for the federal government as it would no longer bear the costs of administration and enforcement of the WSER in Quebec for municipally and provincially owned wastewater systems. The wastewater systems covered by the proposed equivalency agreement would have slightly lower costs as well. Currently, owners and operators of these wastewater systems must monitor effluent quality and submit required reports to Canada for the WSER according to the applicable schedule prescribed in the WSER. Reports are submitted through Environment Canada’s online reporting system. System owners and operators must also monitor effluent quality and report separately to Quebec in accordance with schedules determined in the Quebec regulation. Reports are submitted to Quebec through an online database. The cost to the owners and operators of these systems would be reduced, as they would report to one rather than two levels of government.
There would be two types of cost savings, as set out in the WSER Regulatory Impact Analysis Statement (WSER RIAS): (1) administrative, non-capital costs to wastewater system owners and operators (i.e. municipalities and three provincially owned systems); and (2) costs to the federal government, including those for enforcement, compliance promotion and the authorization officer function for the WSER.
The administrative cost savings stem from reductions in monitoring and reporting costs, as municipally and provincially owned wastewater systems that would have been covered by the WSER would no longer have to submit annual or quarterly WSER monitoring reports, annual reports on combined sewer overflow, or transitional authorization progress reports at five-year intervals, reporting instead to only one rather than two levels of government. It is assumed that this would lead to a savings of approximately 10% of total administrative costs for wastewater system owners and operators that were estimated as part of the WSER. As these costs were estimated at $8.5 million net present value (NPV) over the 2015–2065 period for 126 large and 606 small facilities in Quebec, $0.85 million would be saved by wastewater system owners and operators over this period.
The cost to the federal government would be reduced because federal activities associated with enforcement, compliance promotion and the authorization officer function for the WSER would no longer be undertaken for municipally and provincially owned wastewater systems in Quebec. These costs would be reduced by the following amounts:
Other costs and benefits are not expected to change from the estimates outlined in the WSER RIAS. Therefore, an estimate of the total cost savings from reduced administrative and federal costs once the equivalency agreement is in place would be $5.6 million NPV for the 2015–2065 period.
No other costs or changes in distributional impacts due to the equivalency agreement are expected.
The proposed Order would remove the application of the WSER in Quebec for municipally and provincially owned wastewater systems. Under the equivalency agreement, Quebec and Canada would share information. Each year, Quebec would provide Canada with information and data on the administration and enforcement of the Quebec provisions applicable to wastewater systems. The information sharing would allow for the ongoing evaluation by Canada of the Quebec provisions applicable to wastewater systems and would also provide Canada with required information for reporting results in Canada’s Federal Sustainable Development Strategy, Environment Canada’s Departmental Performance Reports, and the Annual Report to Parliament on the Administration and Enforcement of the Fish Habitat Protection and Pollution Prevention Provisions of the Fisheries Act. The information includes the number of regulatees covered by the equivalency agreement reporting on time, a list of wastewater systems in compliance with effluent quality standards, information that would allow for calculating reductions in loading of CBOD matter and SS over time for those systems, and activities and actions undertaken by the Quebec government with respect to those regulatees in relation to compliance verification and enforcement.
In addition, Quebec would also provide to Canada written notification of any proposed and actual amendments to Quebec provisions relevant to wastewater systems, and Canada would provide to Quebec information regarding proposed and actual amendments to the Fisheries Act, the WSER, or other relevant provisions.
Quebec and Canada would also agree that the agreement be evaluated every five years, to ensure continued effectiveness and relevance.”
By Dianne Saxe, Ontario Environmental Lawyer
Reprinted with permission from the Environmental Law and Litigation Blog.
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