Pollution Engineering - February 2009 - (Page 15)

CASEBOOKCANADA By Dianne Saxe, Ph.D. Your Best Isn’t Good Enough A new rule in the city of Toronto provides companies a high-risk, high-reward choice for industrial water treatment. V iolations of a municipal sewer bylaw are normally punished in Canada by prosecution. This requires a municipality to prove, beyond a reasonable doubt, that a violation has occurred. In addition, the defendant has an opportunity to escape punishment by proving that it used due diligence. The maximum fines are set by bylaw, and are often relatively modest; the judge or justice of the peace has to temper the potential fine to the circumstances of the offence and of the offender. None of this applies to the new rules now being enforced in the city of Toronto. Last year, the city established a two-tier water rate, in the hope of keeping some industrial employment within its boundaries. meet, conditions required to receive the reduced water rate. In circumstances where there is non-compliance, immediateaction be taken including the retroactive billing of previously reduced rates.” The new system provides industrial water users with a 20-percent discount, as long as they comply with the sewer bylaw. However, to the surprise of many industries, the city has decided to interpret “compliance” as no exceedence of any discharge limit in any grab sample in a calendar year. In this approach, due diligence is irrelevant. Knowledge or means of knowledge of any problem is irrelevant. The reason for any problem is irrelevant. There is no appeal. And the consequence of being found out of compliance, even once, for any parameter, is loss of the water rebate for the entire year. At its meeting number 27, Dec. 1-3, 2008, Toronto City Council adopted a motion that: “ The General Manager, Toronto Water review all participants in the reduced water rate program to ensure that they met, as at January 1, 2008, and continue to This is a huge financial penalty for water-dependent industries, sometimes $100,000 or more, and the council has directed that it be imposed retroactively. On the other hand, there is no further financial penalty after the first exceedence; good industries with a single minor problem are punished to exactly the same extent as persistent defiant polluters. The rebate is so large that it provides a powerful incentive for many industries to attempt compliance. Response to the new policy has been immediate, and includes an upsurge in demands to enter into compliance agreements while problems are resolved. However, zero tolerance is rarely an effective enforcement strategy in the long run. How many industries will be able to achieve compliance as defined in this way, particularly if their effluent is frequently sampled? How much effort will they put into trying for perfect compliance and is it economically rational to do so? How will a zero-tolerance policy affect the city’s goal of keeping industrial employment, especially in these extraordinarily difficult economic times? PE “ ” Zero tolerance is rarely an effective enforcement strategy in the long run. Dianne Saxe is one of Canada’s leading environmental lawyers, is a certified specialist in environmental law and member of the Ontario Bar Association Environmental Section Executive. She also holds one of Canada’s only Doctorates of Jurisprudence (Ph.D.) in environmental law. Visit www.pollutionengineering.com and electronically forward a copy of this article to a colleague or customer. FEBRUARY2009 www.pollutionengineering.com 15 http://www.pollutionengineering.com http://www.pollutionengineering.com

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Pollution Engineering - February 2009 Contents The Guest Dialog EnviroNews PE Events Legal Lookout Casebook Canada Environmental Management When Cleanup is Rocket Science RemTEC Features A Chile Air Filter Safer Waste Handling Reaps Rewards 2009 Environmental Software Review Some Serious Sliplining Environmental Software Products Biosolids Equipment Classified Marketplace Advertisers Index State Rules

Pollution Engineering - February 2009

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