The Canadian Environmental Network (CEN) was invited by Environment Canada (EC) to select two delegates from the non-government community to attend the National Forum on Wastewater Management (January 15, 2001) and the First Multilateral meeting on Wastewater Management (January 16-18, 2001). Attendance at the national forum and multilateral meeting was by invitation only. After a call for delegates issued by the CEN, Karey Shinn, representing the Safe Sewage Committee (Toronto), and Inka Milewski, representing the Conservation Council of New Brunswick, were selected by a committee of the CEN to attend the forum and multilateral meeting. All delegates to the National Forum were invited to submit abstracts of presentations. Both CEN delegates submitted abstracts and were selected to make presentations at the forum: Karey Shinn's presentation was titled "Could you learn to love your local sewage plant (a public point of view)?, Inka Milewski's presentation was titled "Marine nutrient pollution: A regulatory gap". Copies of both presentations can be obtained from the CEN office.

            EC will prepare a report of the proceedings which will be ready for distribution to participants by February 28, 2001. Once we receive the report, we will forward it to the CEN for distribution to interested members. In the meantime, we would like to provide the following comments and analysis of the proceedings as viewed by representatives of the environmental community.

Why a national forum and multilateral meeting on municipal wastewater now?

            Put simply, the reason the federal government is finally going to address the lack of regulations on municipal wastewater effluent (MWWE) and the lack of enforcement of the Fisheries Act is lawsuits. Two successful lawsuits were brought against municipalities by citizens/environmental groups for violations under the Fisheries Act and two more lawsuits (one is a class action suit for $55 million and the other lawsuit is in the Yukon for an undisclosed amount) are underway. Gerry Frappier, Director General of the Environment Canada's Environmental Technology Advancement Directorate, in his opening remarks to the multilateral meeting stated the reason more diplomatically - "the climate is right for political action" on municipal wastewater effluent.

            Also looming on the horizon is the decision of the federal Ministers of Health and Environment as to which of the 25 substances added to the second Priority Substances List (PSL) in 1995 will be added to Schedule 1 of CEPA (Canadian Environmental Protection Act). Once the decision is made by the Ministers, regulations governing the control and discharge of these substances must be in place within two years. The PSLs includes four substances relating to municipal wastewater treatment effluent. They include: ammonia in the aquatic environment, chloramines, nonylphenol (NPs) and its ethoxylates (NPEs), and textile mill effluent from wet processes which contains a complex of chemicals. The results of EC's five-year scientific assessment, as required under section 64 of CEPA, determined that these substances were "toxic". The Ministers will announce their decision regarding these four substances as a package rather than singly.

            What was the outcome of the multilateral meeting?

            The stated objectives of the multilateral meeting were to understand the key issues/problems around MWWE management, to identify the elements of a national strategy for municipal wastewater management, to develop options for addressing elements of the strategy and to develop a path forward. John Clarke, Head of Pollution Control for Atlantic Canada, said the federal government is taking a lead on developing a national MWWE management strategy but they are using a multi-stakeholder approach to do this and hence this meeting.

            Participants were told that the federal government had not yet come up with a strategy and that they were seeking input from the stakeholders. Throughout the meeting, the resolve of the federal government to do something about sewage/waste effluent was clear and a key element in doing something would very well involve what appeared to be the dreaded "r-word" - regulations. It was difficult not to conclude that the multilateral meeting was in part a public relations exercise - a way to soften the blow (which is the potential addition of 4 new PSLs pertaining to treatment plants to CEPA) for municipalities and provincial governments by making them believe they are part of the process and to give them a heads-up that enforcement of the Fisheries Act is a priority for the federal government.

            Seven key elements of a national MWWE strategy were identified and discussed in "work groups". These elements included: 1) control instruments; 2) pollution prevention; 3) communications; 4) measurement; 5) funding and resource optimization; 6) scientific research and technology; and 7) operation and maintenance. (Each of these will be explained in more detail in the EC's report from the workshop.) Participants decided that the EC federal working group on MWWE would develop a draft framework for a national strategy. It was also decided that, as part of the process of developing a national strategy, a steering committee made up of federal, provincial, municipal and environmental NGO representatives was required. It was agreed that a design team (?), drawn from the participants in the multilateral meeting, would be set up to establish who should sit and/or be represented on the steering committee and the terms of reference for the committee.

            It was also decided that a control instruments working group be set up quickly. One of the tasks of the working group would be to explore the various control instruments (e.g., national guidelines, environmental performance agreements, regulations, site-specific standards, codes of practice, voluntary agreements, certification programs, etc) as they pertain to municipal wastewater effluent and the 4 substances on the PSL. For example, should NPs and NPEs be regulated at the treatment plant-level or should they be regulated at the product-end by phasing out the use of these substances in industrial processes and products. Additional working groups will address the other element (e.g., pollution prevention, communications, etc).

[Note: Finding a replacement for NP-type substances will be a problem if other similar chemicals are used, such as octylphenol and its ethoxylates, because endocrine disrupting effects may be greater. It was also mentioned that sewage sludge (often called biosolids) contains NPs and NPEs. Where sewage sludge is applied to land, effects would vary depending on the concentration, source, degree, and type of treatment they had received, as well as the soil conditions.]

            It was agreed by the participants that a representative of the environmental community should sit on the steering committee and that financial assistance should be provided to facilitate their participation. It was also agreed that membership on the steering committee should be drawn, in part, from the meeting participants.

            We believe it is very important for the environmental community to be represented in this process and that the representative of the environmental community should have some knowledge of policy instruments as well as the issues regarding municipal wastewater effluent. We expect that EC will be contacting the CEN regarding participation on the steering committee. If the current delegates selected by the CEN are contacted by EC, they will be directed to the CEN.

            Key issues

            The decision by the federal government to address MWWE poses challenges for all sectors (provincial governments, municipalities, environmental community) including the federal government. The following issues, by sector, arose during the meeting and they will no doubt shape the national strategy on MWWE.

            Key issues for the federal government: Most waste effluent from a range of sources including stormwater, combined sewer overflows (CSOs), treatment facilities (including plants and lagoons), direct discharge collection systems, septic systems, fish plants, concentrated animal feeding operations (CAFOs), and marine and freshwater aquaculture facilities is not federally regulated. Furthermore, provincial permits, regulations, certificates of approval and other such control instruments that are placed on some of these sources are not regulations recognized under section 36(4) or (5) of the Fisheries Act and therefore do not provide owners/operators of discharge sources with exemptions from compliance with section 36(3) of the Fisheries Act. Sections 36(4) and (5) of the Fisheries Act provide for administrative agreements with provinces that allow provinces to implement federal regulations (e.g., pulp and paper industries).

            Nadine Levin of EC outlined section 36(3) of the Fisheries Act:

            No person shall deposit [meaning discharge, spray, release,spill,leak,seep,pour,emit,
            empty, throw, dump or place] or permit the deposit of any harmful substances
            [meaning any substance that, if added to any water, would degrade or alter or form part of 
            a process of degradation, so that it is made harmful to fish, fish habitat or the use by man 
            of fish and any water containing a substance that has been treated, processed or changed, 
            that, if added to other water, would render it harmful to fish, fish  habitat or the use by man 
            of fish]   to water   [meaning all waters in the fishing zones of Canada, all waters in the 
            territorial sea of Canada and all internal waters of Canada] where there are fish  [includes 
            parts of fish, shellfish, crustaceans, marine animals and any parts of shellfish, crustaceans, 
            marine animals, and eggs, sperm, spawn, larvae, spat and juvenile stages of fish, shellfish, 
            crustaceans and marine animals] or to any place from which such deposits may 
            result,  unless authorized by a regulation under the Fisheries Act of another 
            federal law.

            In order for municipalities to avoid being charged under section 36(3) of the Fisheries Act, the end-of-pipe effluent from sewage plants must be non-deleterious. Clearly, this is not the case for many municipalities or for other type of operations (e.g., fish plants, aquaculture facilities) licenced by provinces. As Ms. Levin stated, "all levels of government need a way out of this dilemma."

            Of the two acts pertaining to municipal wastewater effluent, the Fisheries Act and likely CEPA through the additions of 4 PSLs to Schedule 1, the Fisheries Act was viewed as less flexible. The Fisheries Act is an end-of-pipe control on pollution and, as such, there are only three options under the Act to deal with MWWE : 1) change the Fisheries Act to exclude MWWE (it was discussed!); 2) write a regulation for municipal wastewater effluent; or 3) enforce section 36(3) of the Act. Representatives from DFO stated there is no political interest in making changes to the Act to exclude MWWE which leaves options 2 or 3, with option 2 the most likely course of action. CEPA, on the other hand, is seen as a more flexible piece of legislation because it does not restrict regulation to the end-of-pipe but can allow for regulations on the production- or receiving-end (in the case of sewage plants) of a pollutant.

            One way to understand the difference between the two acts in terms of their power to prevent pollution is to think of the Fisheries Act as a balloon covering the end of an effluent pipe or any other means ( sprayed, spilled, leaked, seeped, poured, emitted, emptied, thrown, dumped or placed) by which a pollutant enters a watercourse. In theory, the Fisheries Act prohibits the deposit of all deleterious substances and this is the power/strength of the Act. The fact that the Act has not been enforced for 100 years is, of course, the problem! Putting in place a regulation under the Fisheries Act to control a particular discharge, in a sense, "excuses" the prohibition and puts a hole in the balloon. In other words, a regulation under the Fisheries Act would say you can deposit a deleterious substance but at a certain concentration and under a variety of conditions. The dilemma is - should the public be pushing for enforcement of the Fisheries Act (option 3 above) or do they support a regulation on MWWE (option 2 above) which would "sanction" although "control" MWWE. As we know at the moment, nothing is being done to regulate MWWE.

            CEPA legislation, on the other hand, is like a sieve at the end of a pipe, it catches some of the pollutants but not all of them. Putting in place a regulation for a particular pollutant plugs one of the holes in the sieve. However, the regulations do not have to apply to the end of pipe concentrations to control the pollutant (and increasingly they do not apply at the end-of-pipe). They can apply at the product end (e.g., banning the production of products containing a pollutant) or using some other means to control/reduce discharge levels.

            Key issue for provincial governments: The Fisheries Act has the power to override provincial legislation and municipal by-laws with respect to municipal wastewater (sewage) discharges and in the minds of many people this situation creates a legislative "mess". The provinces are also concerned about where they will get the money to upgrade municipal wastewater treatment facilities in order to bring them into compliance of any future regulations. It is likely that the provinces will prefer to focus on (and push for) pollution prevention tools and control instruments like voluntary compliance and codes of practice rather than "end of pipe" regulations. They seem to believe these pollution prevention tools which rely on "peer-pressure" are more effective in bringing about compliance than regulations.

            CCME did ask EC to look at the question of whether standards should be developed for MMWE. It was not clear where the CCME fit into this process now.

            Some provinces believe they should have the authority to manage sewage.

            Key issues for municipalities: In the short-term, municipalities are concerned they may be the target of the next lawsuit. The municipalities (which have a national lobby association as do the operators of sewage/wastewater plants), as well as the provinces, were looking for some "legal certainty" that the Fisheries Act would not be enforced while the national strategy is being negotiated. In other words, they want the threat of lawsuits (or as it was stated " the gun being held to their head") removed.

            The question of using/invoking section 7 of CEPA was raised. It was suggested that this section of the act allows the minister to stop the two-year clock which begins ticking once a PSL is listed on Schedule 1 of CEPA. Apparently this section of the act is generally initiated as a result of a complaint and the minister then strikes an advisory committee to look at the complaint. It was not clear that striking an advisory committee stops the clock. A legal opinion on this issue will be sought.

            For environmental/citizens groups: The pressure from the provinces and the municipalities to set a low pollution-prevention bar rather than a high bar will be intense. By that we mean, control instruments like codes of conduct, voluntary compliance, voluntary agreements, environmental performance agreements and guidelines will be pushed as a mean of controlling MWWE rather than end-of-pipe regulations. Evaluations need to be done on these types of control instruments to see if they are effective in achieving compliance and reducing the release of pollutants.

             According to a study by Peter Krahn of Environment Canada, voluntary control and self-regulation by industry (in this case the study focused on pulp and paper mills and wood preservation facilities) achieved a minimal positive result for both compliance rates and reductions in toxic discharges (as reported in: Global Diversity published by Canadian Museum on Nature, Fall 1998). The study demonstrated that mandatory environmental law enforcement dramatically improves average compliance rates from a pre-enforcement average of 60% to over 90% and subsequently reduced harmful effluent discharges by up to 99%. Krahn noted that the nature of the competitive environment makes industry owners and/or managers poorly suited to impose environmentally responsible operating conditions on recalcitrant members of a particular sector.

             While sewage plants may not be viewed as an industry by most people, operators of sewage plants talked about the need to view sewage as a "resource" not a waste and the need to maximize opportunities for biosolid use. Some municipalities would like to see sewage plants "privatized".

             Some delegates questioned if the new 'Strategy' or 'Regulation' would really be a 'National Program' and felt that it should be. Why were only sewage treatment plant effluents to be included, when many communities, or even the whole Yukon, didn't have conventional treatment plants? Why were discharges to ground water and salt water not in the strategy? If these substances were declared 'toxic', that did not depend on where they were discharged. Federal Regulations surely must be applied Federally under CEPA and Fisheries Act.

             Interestingly enough, product legislation would produce a National Strategy, and reduce or eliminate these toxics everywhere. Given that municipal representatives were crying because they would not be able to afford the upgrades to their treatment plants, this presents the perfect opportunity for NGO's and the public to insist on opening up product legislation to ban NPs and reduce ammonia in consumer products and products for industrial use. This would relieve the tax payer and municipalities of undo financial hardship, as well as remove the problem where it should be removed, at source, and for the benefit of the country as a whole.

             Distinctions were drawn between dumping wastewater effluent into a river, stream, lake or ocean and between sewage discharged in northern and southern regions of Canada. It was also suggested that the type of aquatic life in a potential discharge area should influence the regulations. It was the view of some participants that these differences needed to be considered when drafting legislation (e.g., dumping waste into a little stream was somehow worse than dumping into a big river; if an area is home to commercial or recreational fish then it should be off limits whereas an area with non-recreational species can be used).

             Perhaps what underpins some of these suggestions is the notion that dilution is still a good pollution prevention strategy. A euphemism used to talk about dilution is "mixing zones". Apparently some provinces allow mixing zones for end-of-pipe effluent and it is the effluent in the mixing zone that is tested for toxicity. Municipalities and provinces are concerned that if substances like ammonia become regulated under CEPA, these mixing zones will not be permitted. Regulations on effluent discharges should be the same across all ecosystem-types. Whether you are dumping NPs or chloramines into a big river or a small river, with or without fish, it is still an act of releasing toxics into the environment. The purpose of any pollution prevention legislation is to reduce the release and input of toxics in the environment and food chain.

             Apparently, ammonia (NH3) release into marine waters was not viewed as a problem, despite the fact that human activity has doubled the rate of nitrogen (NH3, NO - nitric oxide, N2O - nitrous oxide) entering the marine environment. It could very well happen that standards for NH3 release into marine waters could be set at a different (higher) level than in freshwater systems. This would be a mistake.

             The issue of nutrient loading in marine waters was also not discussed, despite the fact that marine nutrient pollution has been identified as the most damaging class of pollutants in the marine realm. For those participants wondering if waste discharges from aquaculture operation were part of the discussion, the answer is no. The issue was raised but we were told that this issue is being dealt with by a legislative review of aquaculture being coordinated by the Office of the Commissioner of Aquaculture. Apparently, the review has been completed but no one in EC has seen a copy. There are rumours that we may see a new act to regulate aquaculture.

             Not enough time was spent discussing how MWWE is regulated in Europe. It was acknowledged that there are lower limits for discharges on toxics in Europe. Surely, there are technologies, policies, and regulations that can be adapted to the Canadian experience.

            In closing, we believe the negotiations on a national strategy will be very tough. Whomever is chosen to represent the CEN in these discussion must always have "their eye on the prize" - cleaner water, reduced pollution loads.