Canada: New Industrial Waste Surcharge Agreements – Fair?

Last Updated: September 5 2011
Article by Dianne Saxe

The City of Toronto is demanding that local industries sign a draconian new form of 2012 Waste Discharge Agreement, to come into force on January 1, 2012. Unfortunately, the proposed agreement could seriously prejudice any organization that signs it. For example, it gives the City the right to determine compliance without taking scientifically valid samples. As a result, some Toronto employers are organizing to ask City staff to reconsider. Readers of this blog are invited to read the draft Agreement for themselves, and to send their comments to Michael Gouthro at the City of Toronto. Contact us if you want a sample comment letter.

Surcharge agreements are a contractual arrangement for the City to sell some local employers a limited service, namely the treatment of specified amounts of biochemical oxygen demand, phenolics (4AAP), total phosphorus and total suspended solids, in wastewater. All four are parameters that the City receives in massive quantities, and which its wastewater treatment plants are designed to handle. None is a human health threat.

The City has been telling industries that the new agreement is "in effect", and implies that it is necessary to address the 2008 recommendations of the City's Auditor General. Here, though, are those recommendations. None of them require the type of contract the City now demands:

Report Title: Protecting Water Quality and Preventing Pollution – Assessing the Effectiveness of the City's Sewer Use By-law

Report Date: October 10, 2008 Recommendation:

001 The General Manager, Toronto Water ensure that when new industries are identified, site visits be conducted as soon as possible in order to determine whether or not provisions of the Sewer Use By-law apply. In addition, any change in circumstance such as the closure of a business should be updated on the database.

002 The General Manager, Toronto Water, review the business location database to ensure that all important information such as potential to pollute, industry identification code and address are recorded for each business location.

003 The General Manager, Toronto Water, require that supervisory staff document their review of inspection reports. Non inspection activities such as telephone calls and meetings should not be reported as inspections.

005 The General Manager, Toronto Water develop annual and quarterly inspection plans that meet the inspection and sampling frequency targets established by management. Further, actual inspection and sampling activities should be compared to targets by supervisory staff.

008 The General Manager, Toronto Water, ensure that officers determine whether a pollution prevention plan was completed and available on site during regular facility inspections.

009 The General Manager, Toronto Water, in consultation with the General Manager, Economic Development, Culture and Tourism, determine whether the on-line application currently being used by the Economic Development, Culture and Tourism Division to communicate various licensing requirements could be used to communicate to business owners the Sewer Use By-law requirements, including the submission of pollution prevention plans.

011 The General Manager, Toronto Water, assign appropriate staff to the review and approval of pollution prevention plans to ensure as a minimum that plans are reviewed for high-risk industries and a sample of plans from low-risk industries.

012 The General Manager, Toronto Water, ensure that timely enforcement action is taken where appropriate, for all identified violations of the Sewer Use By-law. Where enforcement action is not considered appropriate, reasons should be documented and reviewed by supervisory staff. Evidence of supervisory review should be documented.

013 The General Manager, Toronto Water, monitor companies in the compliance program to ensure that they are meeting the terms of their agreement with the City. If a company fails to comply with their agreement, the compliance agreement should be terminated and appropriate and timely enforcement actions taken. Where management decides to amend, or not enforce the terms of an agreement, the reasons should be documented and approved by appropriate senior staff.

015 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 meet, conditions required to receive the reduced water rate. In circumstances where there is non-compliance immediate action be taken including the retroactive billing of previously reduced rates.

016 The General Manager, Toronto Water, ensure that when sampling confirms that excess pollutants are being discharged into the sewer system the subject company be immediately advised that they may enter into a surcharge agreement. Immediate follow up be conducted in circumstances where companies do not respond within established time limits.

017 The General Manager, Toronto Water, evaluate all surcharge agreements particularly those that have been in existence for a significant period of time. This evaluation determine the appropriateness of the estimated values of wastewater discharges to the system. Further, all estimates be reviewed on a periodic basis in order to ensure that they are still appropriate.

018 The General Manager, Toronto Water, develop a fee policy for all surcharge agreements that reflects the cost of sampling and testing and that all companies subject to surcharge agreements be billed on a cost recovery basis.

020 The General Manager, Toronto Water ensure companies subject to sanitary discharge agreements provide, on a timely basis, the information required to calculate any amount payable, and that the City promptly bill and collect any amount due.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
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