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Deconstructing "Deleterious"

What one word means for wastewater.

Posted on November 14, 2011
Written by Kerry Freek

Located near the mouth of Rivers Inlet, north of Port Hardy on the central coast of British Columbia, the floating Rivers Lodge is one of several that host sports fishing vacations. For six weeks each year, Pat Ardley and her two kids run the lodge, but it’s not an easy business. The economic downturn has forced at least nine nearby lodges to close, and Ardley fears that her lodge might be next.

Despite financial turmoil, eager buyers are still on the market. Recently, Ardley received an offer to purchase her lodge, but the deal hangs in the balance for one major reason: wastewater.

Two years ago, Ardley and several of her colleagues received Environment Canada (EC) directives to treat their wastewater effluent to the standards required by Section 36.(3) of the Fisheries Act. Simple in theory, the section states that “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish.” In short, it means that nobody has the right to pollute water.

In reality, not polluting is a near-impossible feat and that’s why regulations can exempt some parties from the rule. Over the years, a variety of industries, including pulp and paper and mining, have lobbied for and received federal exemptions that allow them to continue to do business, provided they adhere to specific effluent limits and monitoring practices.

Meanwhile, operations that do not fall under exemption, such as Ardley’s lodge, are fair game for Environment Canada inspectors. Under Section 36.(3), pollution is an easy charge to prove—if it’s harmful to fish, the offence is committed.

Testing the waters
Inspectors often use what’s called a lethal concentration (LC) 50 trout assay test to determine whether effluent is harmful. This test measures the toxicity of water that kills half of the sample population of a specific test animal in a specified period. If the test fish die or show signs of stress or unnatural behaviour, a prosecutor may use this information to charge a polluter. Inspectors did not conduct this test before they sent out their directives, Ardley says, but even if they did, most fishing lodges would get a failing grade.

Currently, she and several other lodge owners use a system of holding tanks and pumps to deal with their effluent, which could include biological materials and domestic waste—anything from poop to dishwater. Once full, the tanks are pumped into deep ocean water. While some groups argue that this is not an appropriate form of dealing with effluent, some studies indicate that this practice has a relatively small environmental impact [seeSea Change,” November/December 2010].

Ardley’s system, a small one compared to other lodges, has been in place for 20 years. She pays the provincial government for an annual effluent permit, which bases fees on a biochemical oxygen demand (BOD) test, not the LC50. The BOD test determines whether the BOD is equal to the quantity of oxygen dissolved in water that is consumed by BOD matter.

Searching for a solution
With the threat of a possible $200,000 per day fine for non-compliance hanging over their heads, 35 lodges were instructed to provide treatment plans by December 15, 2009, and implement a sewage solution no later than June 1, 2011. According to communications with Environment Canada’s media relations department, EC does not provide suggested forms of wastewater treatment technology, so it’s up to the owners and operators of wastewater systems to determine which treatment technology option best suits their needs while meeting applicable regulatory performance standards. After two years of research, however, Ardley and her wastewater consultant, John Rowse, failed find a solution that was both efficient and economical.

“Scientifically, it’s very difficult to find the right system,” says Rowse. Firstly, these lodges are challenged by square footage and energy—Ardley runs a generator for 18 hours of the day. Secondly, they do not produce a large amount of effluent. Ardley’s lodge deals with less than six cubic metres of sewage per day. Both challenges make it difficult to find economical, efficient wastewater solutions, especially when timing is a factor—sport fishing seasons are short, and, as mentioned, the Rivers Lodge operates for only six weeks of the year.

That’s a problem for biological solutions, which usually require four to six weeks to become fully functional, Rowse says. Microfiltration could be an alternative option, he offers, but it produces biosolid byproducts that require disposal, and transporting this material on the ground opens another can of regulatory worms.

Ultimately, it’s about finding the right technology that passes the LC50 test but doesn’t break the bank. So far, Rowse and Ardley agree, there are not any viable options. In separate interviews, they both said more time was needed for new, more economical technologies to be developed. Unfortunately, Ardley’s request for a deferral for her directive was not granted. In an open letter to Environment Minister Peter Kent, she notes that draft regulations for municipalities would allow high-impact communities 10 years to comply with required wastewater upgrades, while low-impact communities would receive 30 years. She doesn’t understand why her small lodge has less time to comply.

“We are not opposed to sewage treatment, but the industry is suffering badly and the capital costs and timelines need to be realistic,” Ardley wrote to Kent.

Is it fair?
So why go after these lodges? “Politically, it’s less stressful for the government to go after smaller polluters,” says Lake Ontario’s waterkeeper, Mark Mattson, who says that currently, many municipalities wouldn’t pass the LC50 test, but, despite the efforts of a variety of NGOs, they’re not being prosecuted for openly discharging deleterious substances.

That said, in recent years, the Canadian Council of Ministers of the Environment (CCME) launched a plan to curb municipal effluent in more than 4,000 facilities—especially in cities without rigorous wastewater treatment, such as Victoria and Halifax—with national regulations. Once in force, these regulations will give clarity on standards and rules for reporting. It will no longer be permitted to directly release raw sewage into waterways. Impending implementation is not without controversy.

“If these regs are passed, it’s a huge exemption from environmental law,” says Mattson. “It puts a huge burden on provincial and municipal governments to invest in infrastructure, but they’ll be given time to comply. This is the big opportunity to do it.”

But these regulations don’t make a difference for fishing lodges or other low-level polluters. If Ardley and Rowse are hoping for a regulation for small-volume dischargers, Mattson says it won’t happen any time soon. It can take years to draft and approve regulations, and the federal government is more interested in exempting the big players from Section 36.(3)’s blunt rule.

In other words, there is no clear solution for Pat Ardley and her colleagues. However unfair it may seem, Rivers Lodge may have to face a charge. “In the absence of a regulation, they have to meet the rule,” says one B.C.-based lawyer. “They’re exposed to the fines.” While he doubts the maximum fine of $200,000 would be applied, the charge does become a matter of the judge’s discretion. Generally, however, the bigger the polluter, the more it costs. “If it’s an offence with minimal pollution, you won’t be fined as much,” he says. “Smaller operators with smaller offences get smaller fines.”

Ardley’s defense could also include the matter of proving due diligence. Since she and Rowse can prove that they’ve researched possible treatment solutions, they may catch a break—a judge could rule that otherwise lawful operations, including a valid provincial sewage permit and proven efforts to minimize discharge, warrant a lower fine. Reasonable care does not equal perfection.

At the same time, nobody forces businesses to pollute. Therefore, the judge could order the lodge to cease operations. After all, says Mattson, the law has to set some limit and rule. Otherwise, it’s death by a thousand cuts. “If everyone discharged a small amount, the volume would be enough to make a difference,” he says.

“Section 36.(3) is pretty clear. Scientists have supported it and courts have found it to be a legitimate way of protecting Canada’s water. While a lot of people don’t like it because it costs money and it’s sometimes difficult to comply, I don’t think we should get rid of the law because it’s hard to lead,” says Mattson. “Instead, let’s think of it as an opportunity for Canada to answer the challenge and become a water technology leader.”  WC

Sport Fishing and the Economy
About 600,000 licensed anglers spend over $1 billion on sport fishing in British Columbia every year, according to Discover Fishing BC, a province-wide initiative by the British Columbia Sport Fishing Steering Committee to increase participation in freshwater and saltwater fishing. Additionally, says Victoria-based wastewater consultant John Rowse, this subset of the tourist industry provides full and part-time employment to over 7,500 people.

In their short six-week season, floating fishing lodges such as Pat Ardley’s Rivers Lodge enable a significant portion of this economic activity for not just themselves, but for float plane operators, airlines, hotels, and restaurants—not to mention fishing gear retailers.

Does the economic contribution of the sport fishing industry offset the environmental issues that may be a result of its operation? In some views, perhaps not. Distributed to at least 35 lodges in Rivers Inlet and Hakai Pass, Environment Canada directives for violation of Section 36.(3) of the Fisheries Act certainly do not leave room for discretion.

Logically speaking, however, a flourishing environment is money in the bank for Rowse’s clients—he is also retained as an independent contractor with the Sport Fishing Institute of British Columbia. Rowse says his clients are more than willing to do what it takes to keep the ecosystem clean and up to standard. “They’re not a bunch of industry dischargers rallying to keep the government from protecting the environment,” he adds. “They’re not interested in sitting on the fence, and they follow the rules. But this time, they don’t know how to follow them.”

Is it fair to ask these small, low-level polluters to upgrade their wastewater systems at a cost that may be worth more than their operations? What do you think?

4 Responses to “Deconstructing “Deleterious””

  1. Bruce A. Brown says:

    Its interesting that I could legally open the by-pass valve on my sail boat offshore and discharge raw wastes in this general area – and close to surface rather than at depth, and can discharge grey water even into fresh water bodies.

    A lodge operation could use a vacuum waste system which would reduce black water discharge by about 92% and maintain a holding tank for limited quantities.Plumbing is simle with glued together plastic pipe. Only down side is they are a little bit noisy and use late at night might disturb guests, Such a system has been used as far north as Little Cornwallis Island for the Polaris Mine.

    Grey water, such as from showers would probably not cause a LC50 impact. Separate treatments of different wastes streams may reduce the scope of the problem.

  2. Basil Mattie, P. Eng says:

    I read the issue confronting River Lodge with great interest. I have been wanting to get a proper handle on the pending Effluent Discharge Regulations under the Fisheries Act. These are so unattainable and unequitable. Why should cities such as Halifax be able to utilize advanced primary treatment for such large volumes of daily discharge and smaller communities and private operators be required to fully comply?
    For example, Halifax just spent $300,000.000. To comply with the new but appantely unequal regulations would likely add to $billons in cost.
    We see small clients, private operators with the decision of perhaps closing down. Preferable would be to have many small systems, not perfect, than one large city discharging deleterious substances.

  3. Ken Elder says:

    Pollution is pollution, we start letting one small operator to discharge raw sewage into the environment and then the westcoast of Canada will end up like Lake Erie.

  4. [...] of one entrepreneur whose business is at risk because of Environment Canada’s double standard, in Deconstructing “Deleterious”: Located near the mouth of Rivers Inlet, north of Port Hardy on the central coast of British [...]

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