by Wayne Cullins
This fall, the BC government is expected to pass new legislation (Bill 57 – The Environmental Management Act) that will replace the current pollution legislation, the Waste Management Act and the old Environmental Management Act. It contains several significant changes that would have major impacts on the way polluting industries are regulated in BC.
Currently it is against the law for any industry, trade or business to introduce waste into the environment unless they have a permit from the Ministry of Water, Land and Air Protection. The new legislation would exempt numerous industries from having to apply for a permit.
The government will be categorizing industries according to their risk factor; different regulations will apply to each category. For “high risk” industries (such as pulp, smelting, refining) there will be no significant change: they will still have to request permits.
“Medium risk” industries (e.g. fish-products processing, plastic pro-ducts, concrete) would not need to acquire permits, but instead would be subject to “Codes of Practice.” These Codes of Practice would serve as general guidelines for an entire industry as opposed to precise guidelines tailored to a particular business in a specific location, as a permit would do. According to a WLAP spokesperson, medium-risk businesses would still have to be registered as such with the Ministry, although details regarding this process are cloudy.
“Low risk” industries (e.g. the soft drink industry, gas stations, paint shops) would neither need permits nor be subject to Codes of Practice. They would, however, be subject to regular prohibitions that apply to all individuals, whereby “a person must not introduce waste into the environment in such a manner or quantity as to cause pollution.”
Mark Haddock of West Coast Environmental Law estimates that 80 percent of the permits now in effect will be considered as low or medium risk industries, and therefore no longer need permits.
The legislation passed third reading October 21. The bill will probably be passed into law early next year. In the meantime, WLAP minister, Joyce Murray, says consultations with stakeholders and environmental watchdogs are to take place starting around the beginning of November. They will be asked for feedback on the regulations regarding the designation of industries into risk categories, and the Codes of Practice for medium risk industries. Because these regulations and codes are not part of the actual legislation, they are not debated in the legislature. The full cabinet will have final approval of the risk designations; the Ministry will finalize the Codes of Practice. Both can be amended at cabinet meetings without notice.
Leaving the regulations out of the legislative process led opposition leader, Joy MacPhail, to argue in the legislature that “so much of this legislation will be done through regulation and there’s no ability to discuss it in this chamber. Therefore, the public is not only required to rely on the goodwill of the Lieutenant-Governor-in-Council – i.e., the cabinet – but now must also, I gather, rely on the goodwill of openness and transparency from the minister of the day in this portfolio…once again we have a government where we’re debating legislation, and the substance of what the government is touting as change hasn’t yet been determined, or will be done in regulation. That’s interesting.” Haddock is saying the same thing: “The entire risk-based regime is not set out in legislation where it can be debated, but left to regulations which are not debated.”
Although no one is in favour of wasteful procedures and red tape per se, there are some advantages to the current permit system. It provides more control and efficient ways of tracking violations. Businesses introducing any waste or pollution into the environment without or in contravention of a permit can be shut down immediately. Also, individuals or businesses in the vicinity of a polluting industry are able to contest the issuing of a permit if they feel the risks have been inadequately assessed, by applying to the environmental appeal board. As Haddock points out, “unless that is addressed – and it is not addressed in the current act – this new regime takes away public rights of appeal, and therefore reduces checks and balances and accountability.”
A higher degree of monitoring the high risk industries is being put forward as an advantage of the new bill. On the other hand, so-called low risk and medium risk industries – because they will be operating below the radar of the Ministry – would only be scrutinized when complaints against them are brought forward by the community. This is characteristic of the reactive rather than preventive nature of the new process. For example, requiring businesses to request permits increases awareness and serves as an educational tool for industry. Furthermore, the difficulty of enforcement will be compounded by cuts to the enforcement staff that have already taken place.
So why would the government want to reduce vigilance with regard to environmental problems? Well, for one thing they have a mandate to reduce regulations by one-third, in order to slenderize bureaucratic functions and staffing. There is also likely a component of the “BC is open for business” philosophy in evidence here.
The government is touting the new regime as being “innovative,” “scientifically-based,” featuring “leading edge techniques” and “environmental practices to encourage environmentally responsibility behaviour, and strengthen environmental protection.” I guess we’ll have to wait and see how closely the reality will reflect the hyperbolic press release. Details of penalties and incentives remain unannounced. The phrase “discharge trading systems” mentioned in passing by the WLAP spokesperson is worrisome.
The changes generally reflect a greater acceptance of risk as transgressions will be more difficult to locate. More inspection in the field will likely be required to locate offenders – more difficult considering the ministry cuts – and so the public will be relied upon to a greater degree to report possible hazards. As they reduce standards and the ability to enforce those reduced standards, there appears to be no stopping the compromise that this government is willing to make regarding the integrity and safety of our environment.
***
[From WS November/December 2003]
