How are polluters regulated in Canada?
AN OVERVIEW
Permission to Pollute Regulations
The Imperial Oil Refinery and complex, as well as all the other facilities in Chemical Valley, are governed by Canada's and Ontario's permission-to-pollute regulatory system. Regulations are designed to allow companies to pollute up to a particular point.
We can see this permission-to-pollute reflected in Chemical Valley.
Researchers have shown that Canadian refinery emissions are far worse than their U.S. counterparts. In fact, no refinery in Canada comes close to US benchmarks for key emissions. 1
According to NPRI data, the Imperial Oil Refinery creates the most emissions in Chemical Valley. 2
Ecojustice has analyzed 2015 federal refinery data to show the Imperial Oil Refinery in Sarnia, was the worst Canadian refinery for SO2, PM2.5, and NOx emissions as measured against US benchmarks. Based on this 2015 data, Imperial Oil in Sarnia would have to make a 98.4% reduction in Sulfur Dioxide emissions to meet the US benchmark. They would have to make a 59% reduction of Carbon Monoxide emissions, and a 60% reduction in benzene. 3
How Do Regulations Allow Pollution?
The permission-to-pollute system manifests in different ways:
Toxics regulations use a cost-benefit analysis. This means that regulations value the economic costs to companies of reducing pollution as much or more than protecting health. For example, a cost-benefit analysis was used to eliminate Ontario’s Toxics Reduction Act. In another example, Ontario Regulation 419/05: Air Pollution - Local Air Quality lets companies evade air quality standards for technical and/or economic reasons. Instead, companies can follow site-specific or sector-specific technical standards. This provision is built into Ontario Regulation 419/05.
Regulations give permission to undermine health-based air quality standards. Ontario introduced health-based air standards in 2005. After a health-based benzene and benzo[a]pyrene air standard was announced, Imperial Oil and other refineries requested a sector-specific technical standard for benzene and benzo[a]pyrene emissions (Petroleum Refining Industry Standard). That is, they requested for the standard to not apply to them. Imperial Oil’s chemical plant and other chemical facilities also requested a technical standard to cover their benzene and 1,3 butadiene releases (Petrochemical Industry Standard). The province approved these requests. The process is repeating with sulphur dioxide regulations. Ontario just updated the sulphur dioxide standard to reflect health data. The refining industry has have already started the process of requesting a technical standard for sulphur dioxide emissions. In this way, facilities or industries, like refining, can always avoid having to reduce their emissions.
The state has final authority. Despite duty to consult and the right to public input under Ontario’s Environmental Bill of Rights, the government gives itself final authority to decide on regulations. The province did not listen when Aamjiwnaang First Nation requested an Impact Benefit Agreement (IBA) to reduce the harmful effects of the Petroleum Refining technical standard used by Imperial Oil and other refineries. This is not a nation-to-nation relationship.
Canada’s toxics regulation is a risk-based threshold approach. A “dose-makes-the-poison” logic underlies Canadian toxics regulation.This logic holds that it takes a specific dose of a chemical to hurt you, and that under this amount the chemical is safe, or less risky. This is an outdated approach. For cancer-causing and hormone-disrupting chemicals, there are no safe levels of exposure. Therefore, even while Ontario has introduced so-called health-based air standards, there is no safe-level of exposure for known carcinogens such as benzene, benzo[a]pyrene, and 1,3 butadiene. Some chemicals that affect reproductive health even cause their most harmful effects at low-doses. Moreover, the threshold logics is not designed to consider the ways pollution adds up over time and mixes together many chemicals, as is the case in Chemical Valley. Thresholds allow pollution up to a point, rather than stop pollution.
Pollution monitoring often relies on industry self-reported data. The National Pollutants Release Inventory (NPRI) and the now-defunct Toxics Reduction Act in Ontario depend on industry-produced data. No one double checks to see if companies are supplying accurate data. Even more disturbing, much of this data is based on what is called “indirect methods”: mathematical estimates using industry-created software or spreadsheets, and not on any physical measures at a facility.Over 85% of Imperial Oil’s reported emissions for the National Pollution Release Inventory uses “indirect methods.”
The government does not put adequate funds into enforcement. There are not enough staff to hold industry accountable. Limited staff means issues are undetected and staff must rely on industry-produced data. “The Price of Oil,” a joint investigative journalism series, reported on this lack of enforcement. They found that since January 2013, hundreds of releases were reported in Sarnia; however, only four led to charges.
Technical and legal language prevents public participation. Although public participation is a right under Ontario’s Environmental Bill of Rights, regulatory language is difficult to understand without extensive training in legal and technical subjects. The Environmental Commissioner of Ontario’s office, which functioned in part to support public participation in environmental decision-making, was eliminated by the provincial government in 2018.
A facility-by-facility approach is used to measure emissions. This approach ignores cumulative exposures and impacts in industrial hubs, such as Chemical Valley.
Insufficient attention to cumulative impacts. The province took almost a decade to come up with the Cumulative Effects Assessment in Air Approvals. However: (1) It only applies to new and expanding facilities; therefore, not Imperial Oil or other long-standing refineries in Chemical Valley; (2) It only covers benzene emissions in Sarnia/Corunna, and; (3) It only looks at cancer-impacts. There are dozens of other toxic chemicals produced by refineries that are persistent in the air and water and cause intergenerational harms. There are many health issues, in addition to cancer, attached to these chemicals.
Public notices don’t always tell us the perpetrator. Some leaks and spills are reported as caused by Imperial Oil and other companies; however, some have no identifiable source. How can facilities be held accountable? Information on spills is very limited.
Public notices mask the fact that releases are 24/7. Public notices announce some - not all - flaring activities and certain releases. However, releases are occurring all the time. Imperial Oil’s announcements often uses the language of “hydrocarbon release,” which hides what specific chemical(s) are being released.
Fines do not deter pollution. Imperial Oil has been fined a handful of times. The fines are miniscule compared to Imperial Oil’s profits and the millions doled out to the oil and gas industry in federal and provincial subsidies. Emissions are causing substantial harms to land and life over multiple generations. Why is a miniscule fine the harshest penalty received?
Monitors do not limit releases. Monitors provide important information on releases; however, they do not cut emissions. Monitors tell us about short-term releases, but not long-term, low-level releases, which cause substantial harm. Even short-term release information is misleading: It is averaged out over a one-hour period. The Ministry’s monitors also don’t tell us what company the release is attached to. While monitors might give use more information, they do not directly reduce pollution.
Canada’s commitments to reduce the greenhouse gas emissions that cause climate change are “non-binding,” which means they are voluntary. This includes international agreements like the Copenhagen Accord and the Paris Agreement. Because these are non-binding, there are no legal consequences for not meeting emissions reduction targets. In 2019, Canada's Environmental Commissioner reported that Canada’s failure to reduce greenhouse gas emissions is “disturbing.” The oil and gas industry is the largest contributor of greenhouse gas emissions in Canada; however, governments give industry permission-to-pollute. Climate change affects the self-determination and wellbeing of people and Lands around the world.
Notes
EcoJustice, “Inadequate Pollution Control in Canadian Refineries: Media Backgrounder” (Toronto: EcoJustice, April 30, 2018), https://www.ecojustice.ca/wp-content/uploads/2018/05/2018-04-30-benchmarking-backgrounder-FINAL-1.pdf.
Elaine McDonald, “Return to Chemical Valley” (Toronto: Ecojustice, June 2019), https://www.ecojustice.ca/wp-content/uploads/2019/06/Return-to-Chemical-Valley_FINAL.pdf.
EcoJustice, “Inadequate Pollution Control in Canadian Refineries: Media Backgrounder” (Toronto: EcoJustice, April 30, 2018), https://www.ecojustice.ca/wp-content/uploads/2018/05/2018-04-30-benchmarking-backgrounder-FINAL-1.pdf.
