On August 26, 2020, City of Regina (City) Council passed MN20-16 Public Disclosure of Toxic Spills and Leaks (Motion) seeking changes to the City’s spill reporting procedures. The following report provides a detailed update of work responding to the Motion and a recommended approach for improving spill reporting procedures.
Financial Impact
The recommended option has limited financial impact and can be achieved with existing staff and resources.
Policy/Strategic Impact
The recommended option is consistent with the City’s goals of maintaining transparency while meeting regulatory obligations and fostering economic growth. Goals specific to Design Regina: The Official Community Plan (OCP) include:
D2 Environment
Goal 1 – Natural System
Maintain, restore and enhance Regina’s natural system and biodiversity.
4.6 Integrate environmental conservation efforts with the surrounding municipalities and the Province.
D4 Infrastructure
Goal 1 – Safe and Efficient Infrastructure
Meet regulatory requirements and industry best practices for design, construction and operation of infrastructure.
6.1 Design, construct and operate infrastructure to comply with relevant legislative and regulatory requirements.
D10 Economic Development
Goal 1 – Economic Vitality and Competitiveness
Foster an environment conducive to economic vitality and competitiveness which supports the standard of living of residents in Regina and the surrounding region.
12.1 Ensure an orderly regulatory environment within which business and industry can operate assured of transparency, predictability, and fairness in their dealings with the City.
12.2 Minimize regulatory barriers to economic growth to the greatest possible extent while balancing the needs and aspirations of all Regina residents, fee-and taxpayers, and the sustainability of the city.
12.4 Provide easy access to information about investing in, conducting business in, and visiting Regina.
Environmental Impact
The recommended option will not change how spills and releases are prevented or contained but it will make environmental data more readily available, potentially increasing awareness of the City’s water, wastewater and drainage systems.
City Council set a community goal for the City of achieving net zero emissions and sourcing net zero renewable energy by 2050. In support of this goal, City Council asked the Administration to provide energy and greenhouse gas implications of recommendations so that Council can evaluate the climate impacts of its decisions. The recommendations in this report have limited direct impacts on energy consumption and greenhouse gas emissions.
Legal/Risk Impact
The recommended option emphasizes existing legislative/jurisdictional responsibility for the environment and reporting of spills. Spills are currently regulated by the Saskatchewan Ministry of Environment (MOE) and cases where spills impact fish or fish habitat are regulated by Environment and Climate Change Canada (ECCC).
The recommended option balances existing legislative requirements and standardized practices within Saskatchewan and Canada with City Council’s desire to see increased public reporting.
The reporting component of the recommendation allows the City to be more transparent with the public while ensuring privacy laws are maintained. The recommendation also takes into consideration the need for concrete evidence of who was responsible for releases when the releases pose no risk to the public prior to public notification.
The Administration is recommending improvements on spill reporting and making environmental monitoring, sampling data and sewer discharge agreements available while continuing to meet obligations for monitoring and reporting spills and releases to the appropriate regulatory agencies. Other options considered but not recommended are:
Option 1 – Status Quo – Follow Provincial and Federal Regulations and Make Information Available Through the Freedom of Information Process (Not Recommended)
Continue to meet regulatory requirements as they relate to spills and releases. Information will continue to be reported to the appropriate regulatory bodies and will be available to the public through a request to the applicable provincial regulator. Requests to the City will continue to be considered on a case-by-case basis with Freedom of Information (FOI) requests being required for information containing third-party information.
This is consistent with the current approach and currently meets applicable regulations. There are no new costs associated with this option.
The City is taking the responsible approach to proactively share environmental spill/release information publicly, pre-empting FOI requests to ensure the City is more transparent and builds trust within the community. The Water Security Agency (WSA), EPCOR Water Prairies Inc. (EPCOR) and regulating bodies have been informed of the City’s new reporting recommendation and are supportive of this approach.
Public access to information gathered during monitoring and sampling events and the preparation and release of reports to the public and internal City processes will be available through the City’s Open Data website (Open Data).
The City operates two separate sewer systems (Appendix A). The storm water sewer system collects runoff from precipitation events and directs the untreated water to Wascana Lake or Wascana Creek.
The wastewater sewer system collects wastewater (i.e., sewage) from residents, commercial business, institutions and industries across the city. Wastewater is pumped to the Wastewater Treatment Plant (WWTP) for treatment before being released into Wascana Creek, west of Regina.
The wastewater system operates under a Permit to Operate and is regulated by the WSA, the provincial regulator. The WSA regulates all municipal water and wastewater systems in Saskatchewan. The City’s Permit to Operate contains specific requirements about how the City must operate the wastewater system and dictates when public reporting is required. In addition to the requirements of the WSA, the City operates the wastewater system, including any discharges, in accordance with all other applicable federal or provincial laws.
EPCOR currently operates and maintains the City owned WWTP and the City owned hauled wastewater station. The City and EPCOR both conduct extensive sampling within the wastewater sewer system, the WWTP and in Wascana Creek. This testing serves four main purposes:
· to comply with the City’s Permit to Operate from the WSA;
· to monitor the effects that the City has on surface water in and around Regina;
· to monitor the wastewater sewer system for potentially harmful compounds that could adversely impact the WWTP; and
· to gather information to help the City and EPCOR effectively operate collection and treatment systems.
All information gathered for the Permit to Operate the WWTP is reported directly to the WSA and is currently available to the public through the WSA. This information can also be made public by the City through annual reporting and posting on Open Data to increase transparency.
Other information that the City and EPCOR gather is used internally to help make informed decisions on technical adjustments to the WWTP’s operations. This reduces the impact to the environment on the City’s sewer systems and helps improve the efficiency of the City’s wastewater related processes. Most of this information could be made available in an annual report that is released to the public.
The federal and provincial governments have a robust reporting process for environmental related data. This process uses a “single window approach” so that individuals or businesses report the spill one time but the information is made available to all applicable regulatory bodies. This approach improves transparency of reporting and simplifies the process so that reporting requirements are easier to understand and follow.
A searchable provincial database is available to the public which includes the date, location, compound and amount of the release. Any additional details must be obtained through a Freedom of Information (FOI) request to the MOE. This is a provincially operated and maintained process. The public can search and obtain information on how to access this information at http://environment.gov.sk.ca/saskspills/spills_srch.asp.
ECCC also posts successful environmental prosecutions online at https://www.canada.ca/en/environment-climate-change/services/environmental-enforcement/notifications.html.
The City has a strong working relationship with federal and provincial regulators and often work together to prevent, identify and, when necessary, mitigate the impacts of releases when they do happen. Maintaining these relationships with regulators is critical to the operation of the City’s wastewater and storm water systems.
Any compound may be considered a contaminant if it occurs where it is unwanted or in an excessive volume. The term contaminant is more typically used when a compound is in a form or concentration that may harm humans or the environment. Being specific about concentration is important because many compounds that could be considered contaminants are also required to support life and are naturally present in the environment in varying levels.
The Government of Saskatchewan and the Government of Canada have jurisdiction over environmental legislation and regulation in Regina. The key piece of provincial legislation is The Environment Management and Protection Act, 2010. Both levels of government have a robust regulatory framework and reporting structure that use a risk-based framework to set limits for compounds in the environment to protect animal, plant and human life. Until compounds enter the environment at a level above regulatory criteria, such compounds are not considered spills or releases by the regulators. In situations where releases occur, the City works with the offending party to clean up the spill and ensures the offending party pays for the cleanup.
Rigorous science-based regulations are in place federally and across all provinces that define what constitutes acceptable public risk based on best practice scientific principles. Creating new definitions or expanding the interpretation of regulations would create confusion in an already highly complex area that the City does not regulate. This approach could negatively impact economic development within Regina due to the introduction of an additional regulatory hurdle for industry that do not exist elsewhere.
Implementing a notification system that focuses only on the presence of the compound and does not consider the compound’s actual risk to the public or environment is impractical and misleading. It is important that the effects of any compounds are understood, and the tangible risks are appropriately communicated to avoid generating unnecessary fear or confusion for the general public.
Implementing a reporting system that alerts residents of releases that pose no risk to the public or the environment is likely to alarm residents initially unnecessarily and over time cause residents to become desensitized. This approach has the potential for residents to not respond when a significant risk is present due to a release. A preferred approach is to provide routine, periodic updates on releases that pose no acute risk.
In researching the root cause of a release, it takes time to gather evidence to reliably identify who is responsible. Prematurely releasing information could mean misidentifying the emitter and would open the City to potential liability. Further, any premature release of information could also hinder ongoing investigations or attempts to obtain compensation for losses. To date, the City has been successful in recovering costs for impacts caused to the City’s systems from the entity that committed the spill through strong scientific evidence and direct discussions with the emitter.
The City controls what enters the City’s wastewater and stormwater system through The Wastewater and Storm Water Bylaw, 2016, Bylaw No. 2016-24 (Bylaw). This Bylaw is publicly available on the City’s website. This Bylaw specifically outlines what can and cannot be disposed of into the wastewater and storm water system with the goal of protecting the City’s infrastructure and the receiving environment. Penalties for violating the Bylaw are up to $25,000 for a corporation or $5,000 for an individual. These fines are the maximum sums allowed by The Cities Act. A breach of the Bylaw can result in a prosecution where the offender is before a court and evidence is presented. If convicted, it is the court that imposes the fines. The City does not have the authority to impose a fine without a conviction in a court.
The City has not prosecuted anyone in over five years under the Bylaw because the City’s approach has been to work with the offending party to reclaim actual costs incurred, which can often exceed the likely fine a court may impose. This approach has proven successful in recovering the City’s costs resulting from improper releases and has helped educate the offender on its improper practices and the consequences of these improper practices.
In the event of a violation of not only the City’s Bylaw but also provincial or federal regulation has occurred, the City can work with the provincial and or federal regulators to ensure the offending parties are accountable for their actions.
Provincial and federal regulators can fine a company following a conviction of indictment up to $1 million or $12 million dollars for each day of the contravention under the provincial and federal acts respectively. An offending party can be fined even if cleanup costs are paid. However, when offending parties commit to paying for a cleanup, fines are typically reduced and, in some cases, can even be eliminated. When faced with the option of paying cleanup costs or facing environmental fines, offending parties often choose to pay the cleanup cost voluntarily.
If an offending party refuses to pay cleanup costs, either out of pocket or through its insurance, there are other avenues for the City to recoup costs. These additional enforcement options include a civil lawsuit where the City sues the individual or corporation for damages or discontinuing services.
The City enters into wastewater agreements with corporations that discharge unusual or very high volumes of wastewater into the system. The agreement is intended as an extra layer of protection beyond the Bylaw. The agreement is created based on an assessment of the overall quality, quantity and risk the wastewater will pose to the City’s wastewater collection and treatment system. Wastewater agreements are currently available to the public upon request. These agreements will be posted on Open Data. However, confidential or third-party information may be redacted.
There are opportunities to improve the transparency and reportability of this work which are recommended below.
Option 2 – Improved Reporting and Posting Data and Agreements on Open Data – Recommended Option
The City has multiple programs in place to improve public awareness around the City’s wastewater and storm water systems and the impact of harmful substances in concentrations that exceed the Bylaw or federal or provincial environmental regulations. However, there can always be improvements to these programs that would be beneficial to help the public and industry understand the impact their day-to-day lives have on the environment and the sewer systems including what they do at home or what they do at work. This education can take the form of easier public access to information gathered during monitoring and sampling events and the preparation and release of reports to the public and internal City processes.
That Administration recommends implementation of the proposed spill/release reporting procedure that includes:
1. An annual report, to be made available beginning in Q2 of 2022, of releases into the City wastewater or stormwater systems including:
a) a summary of all spills reported to federal and provincial regulators by the City;
b) a summary of spill volume, response activity and associated cleanup costs; and
c) a summary of actions taken against persons or businesses responsible for spills.
2. Posting wastewater effluent quality results, as per the Permit to Operate, from the WWTP to Open Data annually beginning Q2 2022, but also including the previous year’s results starting in 2017.
3. Posting results of Wascana Creek water sampling events on Open Data annually, beginning in Q2 of 2022.
4. Posting all wastewater discharge agreements as per the Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) The Cities Act, and other applicable legislation, to Open Data in 2021.
5. Developing an immediate reporting system to alert downstream users once the City is aware of an identified spill event and as may be required by regulators.
6. Continuing to follow federal and provincial regulations for spill reporting and public notice.
The Administration believes that this recommendation meets the intent of the Motion by increasing transparency while protecting against desensitization and maintaining privacy rights. Environment is in the jurisdiction of the federal and provincial governments and to attempt to implement additional regulations could result in provincial offloading, increased hurdles to economic development and significant increased cost to the City with no actual improvement to environmental protection. The proposed recommendation ensures continuity between all levels of government and regulations and maintains standards and terminology.
The recommended options address the Motion, approved by Council, as follows:
1. Review existing fines and costs associated with polluting spills and leaks affecting land and waterways within Regina to ensure that those costs and fines are sufficient to repair all resulting damage, and to deter future incidents, with a report being brought to Council in Q2 of 2021;
The Bylaw already prescribes what can and cannot be disposed of into the wastewater and storm water system with the goal of protecting the City’s infrastructure and the receiving environment. Fines for violating the Bylaw are up to $25,000 for a corporation or $5,000 for an individual. These fines are the maximum sums allowed by The Cities Act. A breach of the Bylaw can result in a prosecution where the offender is before a court and evidence is presented. If convicted, it is the court that imposes the fines. The City does not have the authority to impose a fine without a conviction in a court.
2. Commit to making public all spills and leaks, along with the source, costs, consequences, and remediated actions that could compromise our treatment facility, infrastructure, or effluent quality, regardless of the level of risk to the surrounding water system;
Through an annual report the Administration will report a summary of all spills reported to federal and provincial regulators by the City. This will include a summary of spill volume, response activity and associated cleanup costs and a summary of actions taken against persons or businesses responsible for spills.
3. Develop regulations that would require the City to give public notification within 24 hours of the City becoming aware of all spills and leaks affecting land and waterways within Regina that might pose any risk to the public or to the environment;
The City has recently reviewed and updated the City’s spill response plan and has strengthened the procedures related to public notification. The new plan better identifies potentially impacted downstream users and better outlines the steps taken to determine when the release should be reported. The City has already developed an immediate reporting system to alert downstream users of a spill event. The City will continue to work with our provincial and federal partners to assess risk and determine when public notification is appropriate.
4. Commit to making public the quality of effluent released by the WWTP into the water system;
The Administration will post wastewater effluent quality results as per the Permit to Operate from the WWTP. This will be provided on Open Data annually, beginning in Q2 of 2022, but also including the previous year’s results beginning in 2017.
5. Develop regulations that would require the City to make public all waste and water agreements that it enters into, along with the implications of those agreements for City infrastructure, the public and water safety;
The Administration will post all wastewater agreements in accordance with LA FOIP to Open Data in 2021.
6. Immediately request the provincial and federal ministries and regulators to do the following:
a) Report all spills publicly and promptly in a searchable database that is barrier free for the public to access;
b) Make transparent its process for assessing and imposing fines on industry in the case of leaks; and
c) Make public the number of fines, and their amount, along with the polluter receiving the fine.
The Administration will continue to work with all provincial and federal regulators to ensure the City’s compliance with provincial and federal regulations.
On August 26, 2020, City Council considered motion MN20-16 Public Disclosure of Toxic Spills and Leaks and passed the following recommendations:
1. The Administration reviews existing fines and costs associated with polluting spills and leaks affecting land and waterways within Regina to ensure that those costs and fines are sufficient to repair all resulting damage, and to deter future incidents, with a report being brought to Council in Q2 of 2021.
2. Commit to making public all spills and leaks along with the source, costs, consequences, and remediated actions that could compromise our treatment facility, infrastructure, or effluent quality, regardless of the level of risk to the surrounding water system.
3. Develop regulations that would require the City to give public notification within 24 hours of the City becoming aware of all spills and leaks affecting land and waterways within Regina that might pose any risk to the public or to the environment.
4. Commit to making public the quality of effluent released by the WWTP into the water system.
5. Develop regulations that would require the City to make public all waste and water agreements that it enters into, along with the implications of those agreements for City infrastructure, the public, and water safety.
6. Immediately request the provincial and federal ministries and regulators to do the following:
a) Report all spills publicly and promptly in a searchable database that is barrier free for the public to access;
b) Make transparent its process for assessing and imposing fines on industry in the case of leaks; and
c) Make public the number of fines, and their amount, along with the polluter receiving the fine.
Respectfully Submitted, Respectfully Submitted,
{Signature}
Prepared by: Greg Kuntz, Manager, Energy & Sustainability Solutions