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The Emerging Environmental Protection Policy Convergence in the Ontario Municipal Water, Wastewater and Stormwater Sectors – A Preliminary Literature Review
Author: Edgar Tovilla, P.Eng., M.Sc., PhD ABD - Ryerson University PhD Supervisor: Dr. Kernaghan Webb, LLB, LLM, LLD, Associate Professor, Department of Law and Business, Ted Rogers School of Management, Ryerson University
Ontario’s Water Conference & Trade Show
Windsor, ON, May 2, 2016
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Contents1
Claims – Basic Arguments Theory on policy convergence Literature Review Central Research Questions Questions 1. This presentation illustrates an adaptation of work being undertaken by Edgar Tovilla with input from and under the supervision of Dr. Kernaghan Webb, as part of Edgar’s doctoral degree in the Environmental Applied Science and Management program at Ryerson University.
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Claims – Basic Arguments
1. There is a movement towards overall policy convergence in the regulation of Ontario’s municipal water sectors through the use of management system standards and the adoption of risk-based approaches.
2. Municipalities are gradually adopting management system approaches moving (consciously and in some cases inadvertently) towards QMS and EMS, which is likely to lead to some form of provincial requirements.
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Claims – Basic Arguments (cont.)
3. Recent legislation at the federal and provincial levels are addressing key elements of ISO 14001, pointing to a policy convergence in two dimensions: Public-private. Public-public, among the 3 levels of governments.
4. This study will analyze the value of creating and
establishing a Wastewater Management Standard.
5. Canadian courts are providing another impetus for policy convergence in the form of a legislative requirement for an EMS such as ISO 14001.
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Theory
policy convergence in the adoption of similar policy goals, instruments or the “calibration” of these rule instruments (Lenschow, Liefferink, and Veenman, 2005).
EMSs are unlikely to promote constant improvement unless those regulations are modified and made stricter over time (Arimura, Habiki & Katayama, 2008).
The risk of a stagnant QMS/EMS, whether state-based or private, is that it may inadvertently discourage diversity and innovation in env. manag’t practices by encouraging “going by the book” compliant behaviour (Simpson and Sroufe, 2014; and Chatterji and Toffel, 2010).
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Theory (cont.)
Quasi-governmental institutions, such as ISO, and expert networks are elements that facilitate policy convergence by the development guidelines, norms, principles and criteria for knowledge transfer (Kern, Kissling-Näf, Landmann, Mauch, and Löffelsend, 2001).
Government and non-government institutions are functional equivalents,… government participation is not necessary for the diffusion of policy innovations…. The same degree of legitimacy can be achieved by expert network organizations supported by successful linking of trans-national and local decision making (Kern, Kissling-Näf, Landmann, Mauch, and Löffelsend, 2001)
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Literature Review Administrative Environmental
Municipal government and public utilities commission Drinking water system operated by the municipality, a PUC (e.g. Walkerton), or by a third party; the municipality retains ownership of the assets and are financially responsible for the capital management. Prior to Walkerton, municipalities had little knowledge of actual operations and challenges.
Lack of source water protection The Walkerton well that caused the tragedy was vulnerable to surface water pollution from adjacent farms; compounded with the highly fractured bedrock, this allowed water penetration through rock fissures. The PUC did not implement any explicit measure for source water protection; moreover the municipality did not have the legal power to control land use on adjacent farm.
Walkerton Tragedy Operational / Technological Regulatory
Lack of water quality data management The source of Walkerton's water system was groundwater, controlled by a System Control and Data Acquisition (SCADA) system, which monitored pumping rates but did not provide any information on water quality. Training of operators The Walkerton operators obtained their operator licenses as part of a voluntary "grandparenting" program in 1988, not having to take any courses or pass any examinations. Chlorination and turbidity monitoring Rules were established in 1994 under the Ontario Drinking Water Objectives for continuing monitoring that were applicable to Walkerton; however, those rules applied to new wells only. Those approved under previous regimes were grandfathered and there was no program to review them. Mislabeling of samples Samples taken were routinely mislabeled and therefore unreliable.
Environmental protection legislation Obsolete regulations (e.g. OWRA, 1956; EPA, 1972, no regulation for agricultural practices) left responsibility for regulating, approving and inspecting water works with the MOE. Privatization of water labs In 1995, the Ontario gov’t. privatized water testing (attributable to a need for budget reductions) without regulations that would have required private labs to notify the MOE and the Medical Officer of Health of adverse test results. Inspection reports Although as early as 1992, 1995 and 1998 inspection reports from the MOE had noted concerns with the bacteriological quality monitoring, no abatement actions were enforced by the MOE. Impacts of government cutbacks A number of budget cuts to the MOE between 1994 and 2000 reduced its environmental staff by 30%, limiting its capacity for inspections, abatement and enforcement.
Note: Classification of contributing factors adapted from O’Connor (2002b), and Wellington, Burley, and Rollinson-Lorimer (2010)
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Literature Review (cont.)
Acts Regulations
Safe
Dri
nkin
g W
ater
A
ct, 2
002
O. Reg. 170/03 for drinking water systems (DWQMS)
O. Reg. 169/03 for drinking water quality standards
O. Reg. 172/03 for defining "municipal drinking water system"
O. Reg. 128/04 certification of operators
O. Reg. 248/03 for drinking water testing services
O. Reg. 453/07 for financial plans of municipal drinking water
O. Reg. 188/07 for licensing of municipal water systems
Cle
an W
ater
Ac
t,
2006
O. Reg. 284/07 for source water protection areas and regions
O. Reg. 288/07 for source protection committees
Nut
rien
t M
anag
em’t
Ac
t, 20
02
O. Reg. 267/03 for nutrient management
Acts and Regulations enacted as a result of the Walkerton Inquiry
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Literature Review (cont.)
Legislation Significance
Can
ada Environmental
Enforcement Act (2010) Passed in 2010, it introduces enforcement tools that allow for directing the offender to implement an EMS, PPPs, or Env. Emergency Plans, requiring environmental periodic audits
Ont
ario
Development Charges Act (1997)
2015 amendments require municipalities to have an asset management plan prior to passing any development charge by-laws
Env. Penalties Reg., O. Reg. 222/07
It encourages regulated persons to implement EMSs Reduces penalties by having a valid “ISO 14001 certification”
DWQMS, O. Reg. 170/03
It requires a QMS for drinking water systems. It has a strong foundation for an ISO 14001 Certification
Municipal Act 2006 amendments recognized possibility for municipalities to adopt voluntary measures for accountability and transparency
Open for Business Act, 2011
This Omnibus Bill amended the EPA to align the OWRA towards the risk-based approach of SDWA (pre-approval / multi-media)
Legislation in support of ISO 14001 / EMS
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Literature Review (cont.) Year Event Significance 1926 ISA The Int'l Federation of the National Standardization Association, focused on mechanical engineering but
was disbanded in 1942.
1947 ISO is established in London, UK After WWII, ISA remnants re-group with 65 delegates from 25 countries to form ISO.
1971 ISO environment agenda It took 24 years to put the environment onto the ISO agenda.
1972 UN-Conference on the Human Environment Meeting in Stockholm, concluding with a declaration for the preservation and enhancement of the human environment.
1987 Sustainable Development defined The Brundtland Commission Report (World Commission on the Env. and Dev’t) coined the first SD definition.
1987 ISO 9000 ISO 9000 family of quality management standards is established.
1991 R. v. Bata Industries SCC case First case where directors of a large corporation held personally liable for env. pollution. Due diligence and directors' liability implications.
1992 UN - Rio Declaration Established a global partnership to protect the integrity of the global environment and development system.
1992 British Standard 7750 First standard for EMS. Since then, BS 7750 is now compatible with ISO 14001 and EMAS.
1993 Milwaukee Cryptosporidiosis outbreak 400,000 people became ill and 104 died in this outbreak, due to contaminated water in Lake Michigan.
1993 ISO/TC 207 Env. technical committee 207 established for development of the ISO 14000 family of standards.
1993 Eco-Management and Audit Scheme (EMAS) First European system for env. performance and continual improvement. By 2015, 4,600+ firms and 7,900+ sites have EMAS.
1996 ISO 14001 EMS ISO 14001 for EMS is established.
2000 Walkerton tragedy An estimated 2,300 people became seriously ill and 7 died from exposure to microbially-contaminated drinking water.
2002 Walkerton Inquiry After Justice O’Connor’s recommendations, EMS and source water protection emerge as regulatory requirements in Ontario.
2002 Ontario’s SDWA The Safe Drinking Water Act receives Royal assent in 2002.
2004 ISO 14001 amended ISO 14001 is amended for compatibility with ISO 9001 for QMS.
2006 Ontario’s DWQMS The MOECC publishes the DWQMS.
2007 Ontario’s regulations for water systems Ontario enacts Regulation for the Municipal Drinking Water Licence Program, and publishes accreditation guidelines
2015 ISO 14001 and ISO 9000 amended On September 2015, the ISO 14001 and ISO 9000 were amended to include new concepts of eco-design and life cycle assessment.
2015 DWQMS proposed amendment On November 2015, the MOECC posted the revisions to the DWQMS on the EBR for a 45-day public comment period.
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Literature Review (cont.)
QMS, EMS and CSR for Water Sectors
ISO 9000
“Water System”
QMS
ISO 14000 “Wastewater System”
EMS
ISO 26000 “Social System”
CSRS
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Literature Review (cont.) Canadian courts are providing another impetus for policy
convergence in the form of a legislated requirements that municipalities comply with an EMS such as ISO 14001.
Federal and provincial enforcement actions – motivations: Fisheries Act Enforcement
1st offence: fine up to $300,000 Subsequent: fine up to $300,000 and/or 6 months in prison Indictable offence:
First offence: fine up to $1 million Subsequent offences fines up to $1 million and/or 3 years in prison
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Literature Review (cont.) Canadian courts are promoting policy convergence in
the form of a legislated requirements that municipalities comply with an EMS such as ISO 14001.
Enforcement actions – motivations: Fisheries Act Enforcement
1st offence: fine up to $300,000 Subsequent: fine up to $300,000 and/or 6 months in prison Indictable offence:
First offence: fine up to $1 million Subsequent offences fines up to $1 million and/or 3 years in prison
Provincial Enforcement ECA breach, No ECA, fail to comply with POO, fail to notify, etc. Most are guilty pleas…. ($$$$ + remediation costs)
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Literature Review (cont.) Municipalities with ISO 14001 certification: Elgin Area/Lake Huron (City of London) Durham Region York Region Richmond Hill Windsor Collingwood Hamilton (Roads only) Region of Peel (2015) Under development: Halton Region, City of Toronto, City
of Barrie, others (≈ 3.3 m people or 24%)
Prior to Walkerton and/or DWQMS (2006) ≈ 3.5 m people (26%)
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Literature Review (cont.) MOECC alignment of rule instruments: Since 2009, the MOECC has been aligning or adjusting
its rule instruments for regulating WW & SWM (i.e. EPA, OWRA) towards drinking water risk-based approach.
Open for Business Act, 2010 – Pre-approval and multi-media 2010, MOECC established the Limited Operational Flexibility
(LOF) conditions for WW & SWM that allow pre-approval to low risk activities….. issues first such approval (Durham Region)
2013, City of Toronto appeal, ERT 2014, MOECC issues first System-wide ECA for Sudbury and
Halton Region 2015, The LOF / System Wide ECA receive the MOECC-
ministry wide Emerald Award for Regulatory Innovation.
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Central Research Questions (cont.)
Why some Ontario municipalities are adopting BMPs that align with ISO 14001? What are the benefits?
Is there value in the Ontario government adopting WW management system requirements that incorporate elements of ISO 14001?
Is it possible to envisage policy convergence moving forward concerning the drinking water sector that does not include integration of EMS?
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Central Research Questions
Can the same balance achieved in the Ontario drinking water governance (combining the benefits offered by a QMS to offset the risk-based approach, i.e. delegation of authority to municipalities), be adopted for WW sectors, as part of a general move towards provincial adoption of a risk-based approach?
