Water Pollution at Ashbridges Bay
Several sewers discharge into Ashbridges Bay on Toronto’s waterfront, on Lake Ontario. These sewers are combined sewer systems (CSOs), meaning that during storms or snow melts they discharge a mixture of raw sewage and storm water into Ashbridges Bay, which is close to a popular beach area in Toronto’s east end.
In April 2002, a multi-agency government review described the uncontrolled flow of polluted stormwater and combined sewer overflows as the most significant cause of degradation of Toronto’s waterfront. Also, in April 2002, the Sierra Legal Defence Fund (SLDF) submitted an EBR application for investigation to the Ministry of the Environment on behalf of three applicants, alleging that the City of Toronto was contravening two laws by discharging contaminated sewage at this location. (For additional background on this application for investigation, see pages 249-254 in the Supplement to this annual report.)
SLDF issued a news release publicizing its application, describing the evidence submitted. The applicants collected water samples at combined sewer outfalls during rainfall events on two occasions in November and December of 2001 and submitted them for sampling to an independent laboratory. The laboratory analysis revealed very high levels of E. coli – up to 5,200 times the Provincial Water Quality Objective. The applicants alleged that the discharge of these waterborne bacterial contaminants was contrary to section 14 of the Environmental Protection Act and also contrary to section 30 of the Ontario Water Resources Act.
The applicants also noted that the observed bacterial contamination is a well-documented chronic problem. They submitted City of Toronto reports and monitoring data dating back to 1986, showing that E. coli counts in the thousands (per 100 ml) are commonplace in Ashbridges Bay. They argued that the City of Toronto has not been working to bring this situation into compliance, but, on the contrary, has been approving a significant number of new commercial and residential developments in the sewer-shed, thus placing further pressure on the sewer systems.
On June 28, 2002, the Ministry of the Environment advised the applicants that the ministry would be investigating the allegations. On September 26, 2002, MOE informed the applicants that MOE’s Toronto District Office staff had reviewed the allegations. MOE also provided the applicants with a brief report, but the report focused on questions only tangentially connected to the allegations, such as the historical approval mechanisms for Toronto sewers. Ministry staff had not found any evidence that the City of Toronto had built or modified CSOs or connected sewers without approval. MOE had also forwarded the allegations to its own Investigations and Enforcement Branch (IEB) for further assessment and investigation, while the Toronto District Office would continue to monitor activities in Ashbridges Bay area. The lawyer for the applicants wrote back that MOE’s investigation was inadequate, partly because it did not attempt to verify or quantify the pollutants being discharged, and did not attempt to identify interim solutions.
On December 2, 2002, MOE’s Central Region Office wrote to the applicants, saying the ministry has not disputed the applicants’ information about the water quality in the Ashbridges Bay channel on the day sampled. MOE’s letter also noted that CSOs at the site contribute to poor water clarity, high concentrations of nutrients and bacteria, elevated concentrations of metals and organic contaminants, increased water temperature and accumulation of trash. MOE also noted that the reduction of excess flows was one of the goals of an ongoing environmental assessment process for the Ashbridges Bay Sewage Treatment Plant.
On February 10, 2003, MOE’s Investigation and Enforcement Branch wrote to the applicants, saying that the IEB would not assign an investigator to this matter, because “there is not enough evidence, or likelihood of obtaining evidence to warrant assigning this matter to be investigated.” MOE included an IEB report that explained that the applicants had obtained water samples from the edge of sewer outfalls, instead of collecting the samples right inside the sewer system. According to MOE, it was critical to have samples collected right within the sewer system, for a prosecution to proceed. It was also essential to observe the inside of the sewer on the sampling date to determine whether an overflow was occurring at the time. The IEB report also noted that, based on available information, there was a reasonable prospect that a defence of due diligence — a legal term meaning the exercise of reasonable and prudent care — would stand.
In a March 12, 2003 letter to the ECO, the applicants outlined their concerns with the ministry’s investigation. They noted that MOE’s approach in this case set a bad precedent for the EBR’s application for investigation mechanism in general. They stated that “from the perspective of the meaningful operation of the EBR, it is deeply disturbing that the Ministry of the Environment would essentially require citizen applicants to meet the standard required internally by the IEB for prosecution. Such an approach all but excludes the general public from the Application for Investigation process. No ordinary citizen can be expected to prepare a ready-for court prosecution brief. Rather the process is intended to initiate the Ministry’s fact-gathering process. In this case, that process has been woefully inadequate.”
ECO Comment
The ministry’s investigation in this case was inadequate and contradictory. On the one hand, the ministry acknowledged that the water quality problems at Ashbridges Bay have been long-standing. Since MOE did not turn down the initial request for an investigation, the ministry clearly did not consider the application frivolous, vexatious, or unlikely to cause environmental harm. On the other hand, MOE decided that the samples submitted by the applicants were not adequate for pursuing a prosecution, and decided not to carry out its own testing or to investigate the matter any further. In the end, MOE’s “investigation” amounted to a paper review of ministry files. None of the usual investigation techniques were employed.
The ministry’s refusal to investigate this matter properly frustrates the intent of the EBR, and the applicants in this case are justifiably concerned that the case sets a bad precedent for the application for investigation process. The applicants provided evidence to the best of their legal and technical ability and requested that the ministry investigate further. It would be illegal and extremely dangerous for Ontario residents to attempt to collect water samples from within a sewer system. The ministry, in contrast, has both the legal mandate and the technical ability to collect such samples. Since the sewer discharge is an acknowledged ongoing and long-standing problem, the ministry could have waited for another rainfall event to collect legal samples from within the sewer system. The ministry could then initiate an IEB investigation. This would have been a logical next step for the ministry to take, and would have conformed with the ministry’s approach on two other recent EBR investigations described in this annual report. In both those cases, MOE sent out staff to investigate the sites first-hand, and then followed up with abatement or enforcement action. (See Noise Discharge from Cook’s Mill, pages 121-124, about an alleged discharge of excessive noise, and also also pages 267-271 of Supplement to this report on an alleged illegal waste disposal site.)
In this sewer discharge case, the ministry’s investigator noted “a reasonable prospect” that the City of Toronto would have a defence of due diligence, based on preliminary information provided to the investigator. The question of the city’s due diligence – the exercise of reasonable and prudent care – would likely have become a key issue if the ministry had carried out a full investigation, with the intent of prosecuting the city. Unfortunately, MOE chose not to address this complex question directly. Evaluating the city’s defence of due diligence would certainly have been a major undertaking for MOE, since it would probably have required a review of the history of several complex, contentious, and inter-related initiatives: the Ashbridges Bay Sewage Treatment Plant Environmental Assessment (under way since 1998), and the City of Toronto’s progress on a Wet Weather Flow Management Master Plan. This last plan has been in development since 1997, and is expected to have a capital cost of approximately $1 billion over 25 years. It includes plans to capture and treat combined sewer overflows and also to encourage infiltration of rainwater into the soil where it falls.
MOE appears to be relying heavily on the environmental assessment process to influence water quality improvements along Toronto’s eastern waterfront. However, under this process, which is driven by the city, MOE has a limited ability to set the agenda and no ability to drive the timetable for environmental improvements. Although MOE could take a more assertive regulatory role by issuing orders requiring improvements to the Ashbridges Bay Sewage Treatment Plant and sewer systems, this approach does not appear to be favoured by the ministry.
Evidence at the Walkerton Inquiry demonstrated MOE’s historic reluctance to prosecute municipalities, especially in relation to communal drinking water. The ministry has also tended to prefer a voluntary abatement approach when dealing with non-compliance by municipal sewage treatment plants (see The Environmental Impacts of Sewage Treatment Plant Effluents). In keeping with this pattern, MOE’s dealings with the City of Toronto’s Ashbridges Bay Sewage Treatment Plant and the city’s long- standing CSO issues (as well as this EBR investigation) have all emphasized voluntary measures rather than mandatory requirements or enforcement.
In contrast to its handling of sewer deficiencies at the City of Toronto, MOE does issue mandatory orders to some municipal sewage treatment plants. For example, in April 2003, MOE issued an order requiring the municipality of Port Hope to upgrade its sewage treatment plant. The ministry’s inspection report noted that the facility bypassed untreated effluent 11 times in the year 2002, and stated that “it is the Ministry’s position that the frequency and continuation of sewage bypasses . . . are unacceptable.” Until the upgrades are completed around the end of 2005, Port Hope will be able to add only 400 new units to its sewer system. It is quite possible that MOE’s staff and resources may be challenged and stretched by enforcement actions or mandatory Orders issued to large and complex proponents such as the City of Toronto. But MOE is the key regulating agency on water quality issues in Ontario. The ministry has a responsibility to maintain a viable abatement and enforcement capability, and should apply this capability equitably to large and small proponents. (For ministry comments, see page 211.)
| Recommendation 10:
The ECO recommends that the Ministry of the Environment ensure that the full range of the ministry’s existing compliance and enforcement tools are applied consistently to large and small municipalities and that wastewater collection and treatment infrastructure of all municipalities be brought up to modern environmental standards in a timely manner. |
| This is an article from the 2002/03 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2003. "Water Pollution at Ashbridges Bay." Thinking Beyond the Near and Now, ECO Annual Report, 2002-03. Toronto, ON : Environmental Commissioner of Ontario. 155-158.
