Our entire submission is available for download here.
There is growing concern in Canada about the role of cargo discharge in the Great Lakes. Lake Ontario Waterkeeper and other environmental groups in Canada are very concerned about cargo residue discharge. Cargo residue discharge is illegal in Canada under a number of federal and provincial statutes, and contrary to the provisions of the Great Lakes Water Quality Agreement.
The amounts of cargo discharged into the Great Lakes each year are very large. The 2004 USCG study estimates that in the single 04-05 shipping season, US-flag dry bulk carriers alone discharged 653,000 lbs of iron ore, 219,000 lbs of coal, 228,000 lbs of limestone and 11,300 lbs of other material into the Great Lakes. Most cargo residues are discharged while ships are in transit, the 1993 Melville Shipping study produced for the Canadian Coast Guard estimates that about 640,000 kg of material is spilled offshore in the Great Lakes, 90% of which is coal and ore. In 1999 the US National Oceanic Atmospheric Administration estimated that together, Canadian and US shipping companies pump an estimated 2,500 tons of cargo residue into the lakes each year. These estimates are very conservative and based on incomplete reporting. A recent article in This Magazine quotes a former Canada Steamship Lines engineer who estimated the total discharge at 20 tons of discharge per average trip.
Many of the substances discharged are deleterious to fish habitat in the Great Lakes. These lakes have been treated like a garbage dump for hazardous refuse for three quarters of a century. Accordingly, cargo residue discharge is an environmental issue, not a shipping regulation issue.
Lake Ontario Waterkeeper recommends that Transport Canada omit s.142 from the proposed regulations on the following grounds:
1. The proposed regulation seriously undermines and contradicts all other Canadian laws relating to Great Lakes pollution 2. The proposed regulation does not satisfy Canada's obligations in the Great Lakes Water Quality Agreement (â€œGLWQAâ€?). 3. The proposed regulation is premature in light of the scientific uncertainty underlying the cumulative and long-term effects of cargo sweeping in the great lakes.
Presently, the Pollution Prevention Regulations under the Canada Shipping Act (â€œCSAâ€?) prohibit the discharge of cargo residues by virtue of s.4(1) which reads:
4.(1) Subject to section 5, no ship shall discharge a pollutant listed in Schedule I into any of the following waters: (a) Canadian waters south of the 60th parallel of north latitude; (2) Subject to section 5, no person shall discharge or permit the discharge of a pollutant listed in Schedule I from a ship into any of the waters described in paragraphs (1)(a) to (c).
On June 17, 2006 new regulations were proposed and posted in the Canada Gazette, Part I. Section 142 of these proposed regulations would authorize discharge of cargo residues in Lake Erie and Lake Ontario at a distance of 12 nautical miles from shore or 5.2 nautical miles in the case of iron ore. These regulations also permit the discharge of certain cargo residues in the St. Lawrence. The proposed regulations exclude pollutants listed in s.4(a) to (c) as follows:
4. For the purposes of Part XV of the Act, the following substances are prescribed to be pollutants: (a) oil and any oily mixture; (b) any noxious liquid substance; (c) for the purposes of Division 3, any substance listed in Schedule 1, except when it is carried in packaged form or in a freight container, road vehicle, trailer, portable tank or railway vehicle or a tank mounted on a chassis;
However â€œgarbageâ€? â€” a listed pollutant under s.4(f) â€” is authorized to be discharged under the proposed regulation. It should be noted that the definition of â€œgarbageâ€? in the proposed regulations roughly approximates the definition in the Great Lakes Water Quality Agreement. The proposed regulations therefore authorize the discharge of a wide variety of â€œpollutantsâ€? into the Great Lakes, in unlimited quantities.
1. The proposed regulation seriously undermines and contradicts all other Canadian laws relating to Great Lakes pollution
Cargo sweeping is illegal in the Canadian portions of the Great Lakes. Cargo sweeping is contrary to s.36(1)(a) of the federal Fisheries Act which reads:
36. (1) No one shall (a) throw overboard ballast, coal ashes, stones or other prejudicial or deleterious substances in any river, harbour or roadstead, or in any water where fishing is carried on; All of the great lakes are, in their entirety a place where fishing is carried on. This section covers all cargo sweepings of deleterious substances like limestone, coal and iron ore, and covers all Canadian fisheries waters including all the internal freshwaters of Canada. Under s.40 of the Fisheries Act the discharge of cargo residue is punishable with a fine up to one million dollars: 40. (2) Every person who contravenes subsection 36(1) or (3) is guilty of (a) an offence punishable on summary conviction and liable, for a first offence, to a fine not exceeding three hundred thousand dollars and, for any subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding six months, or to both; or (b) an indictable offence and liable, for a first offence, to a fine not exceeding one million dollars and, for any subsequent offence, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding three years, or to both.
The 1993 Melville shipping study conducted for the Canadian Coast Guard noted that cargo residue would not be in compliance with the Fisheries Act. Specifically it noted that spillage ores, metals, grain, pulp and coal would not meet the Ontario Ministry of the Environment guidelines used to measure damage to fish habitat under the Fisheries Act. The study also noted that weathered coal releases metals and PAHs into sediments.
While the Melville study implied that â€œminimizingâ€? discharges of cargo would be sufficient to comply with environmental legislation, LOW submits that the Fisheries Act does not permit cargo discharges, even minimal ones. Even if minimal discharges were permitted, no efforts have been made to reduce cargo discharges since the 1993 study. The Melville study notes that if deck and cargo hold wash downs ceased, spilled material would be reduced by up to 50%. Wash downs are prohibited by the Fisheries Act, and authorizing wash downs is not consistent with minimizing cargo residue discharge, or legal under the Fisheries Act.
Cargo sweeping is also illegal under provincial laws in Canada. The Ontario Public Lands Act reads:
27(1) No person shall deposit or cause to be deposited any material, substance or thing on public lands, whether or not the lands are covered with water or ice, except with the written consent of the Minister or an officer authorized by the Minister.
(3) A person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 and to an additional fine of not more than $1,000 for each day that the material, substance or thing remained on the public lands.
The Ontario Environmental Protection Act also prohibits the dumping of industrial and operational waste in the Great Lakes, it reads:
25. In this Part,
â€œwasteâ€? includes ashes, garbage, refuse, domestic waste, industrial waste, or municipal refuse and such other materials as are designated in the regulations;
â€œwaste disposal siteâ€? means, (a) any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed, and (b) any operation carried out or machinery or equipment used in connection with the depositing, disposal, handling, storage, transfer, treatment or processing referred to in clause (a)
27 (1) No person shall use, operate, establish, alter, enlarge or extend, (a) a waste management system; or (b) a waste disposal site, unless a certificate of approval or provisional certificate of approval therefor has been issued by the Director and except in accordance with any conditions set out in such certificate. . (3.1) Despite subsection (1), no person shall use, operate, establish, alter, enlarge or extend a waste disposal site where waste is deposited in a lake.
186 (1) Every person who contravenes this Act or the regulations is guilty of an offence.
187 (1) Every individual convicted of an offence under section 186, other than an offence described in subsection (3), is liable, (a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $50,000; and (b) on each subsequent conviction, (i) for each day or part of a day on which the offence occurs or continues, to a fine of not more than $100,000, (ii) to imprisonment for a term of not more than one year, or (iii) to both such fine and imprisonment.
The proposed regulations under the CSA completely undermine the requirements of these important statutes. They will give the appearance that cargo residue discharge is legal, when it will actually remain clearly illegal under Provincial laws and under the Federal Fisheries Act.
LOW submits that the current absolute prohibition on cargo sweeping in Canadian laws is appropriate, reasonable and consistent across Federal and Provincial jurisdictions. The discharge of dry cargo residue contributes to the cumulative impact of long-term pollution problems in the Great Lakes. Many of the substances discharged by ships as â€œresidueâ€? have a clear and cogent potential to severely degrade the Great Lakes ecosystem.
2. The proposed regulation does not satisfy Canada's obligations in the Great Lakes Water Quality Agreement
Under Annex V of the GLWQA all cargo discharges are considered â€œgarbageâ€?. Annex V reads:
"Garbage" means all kinds of victual, domestic, and operational wastes, excluding fresh fish and parts thereof generated during the normal operation of the ship and liable to be disposed of continually or periodically;
Annex V further requires that:
2. General Principles. Compatible regulations shall be adopted governing the discharge into the Great Lakes System of garbage, sewage, and waste water from vessels in accordance with the following principles: (a) The discharge of garbage shall be prohibited and made subject to appropriate penalties;
While at present, both Canadian and US laws comply with s.2(a) of Annex V, the proposed regulation would bring Canada into non-compliance with this part of the GLWQA by removing the prohibition against the discharge of operational wastes.
The definition of â€œgarbageâ€? in the proposed Canada Shipping Act regulations mirrors the definition under the GLWQA. Yet, s.142 of the proposed regulations authorizes the discharge of garbage into the Great Lakes.
Although Transport Canada has been highly aware of the widespread contravention of these environmental acts and the CSA Pollution Prevention Regulations for over a decade, no efforts appear to have been made to upgrade port facilities and shipping standards to eliminate dry cargo residue. If cargo can be discharged in transit, it can be discharged at an appropriate port facility.
The regulations fail to bring Canada into compliance with the GLWQA provisions relating to ship capabilities.
Annex IV of the GLWQA requires prevention of the discharge of hazardous substances from ships:
4. Hazardous Polluting Substances. The programs and measures to be adopted for the prevention of discharges of harmful quantities of hazardous polluting substances carried as cargo shall include: (a) Compatible regulations for the design, construction, and operation of vessels using as a guide the standards developed by the International Maritime Organizations (IM0), including the following additional requirements: (i) Each vessel shall have a suitable means of containing on board spills caused by loading or unloading operations; (ii) Each vessel shall have a capability of retaining on board wastes accumulated during vessel operation; (iii) Each vessel shall be capable of off-loading wastes retained to a reception facility; (iv) Each vessel shall be provided with a means for rapidly and safely stopping the flow during loading or unloading operations in the event of an emergency; and (v) Each vessel shall be provided with suitable lighting to adequately illuminate all cargo handling areas if the loading or unloading operations occur at night;
The definitions of â€œHazardous Polluting Substancesâ€? are contained in Annex I of the GLWQA. This list includes numerous substances discussed in the 1993 Melville study.
This provision requires Canadian laws to mandate that ships have â€œthe capability of retaining on-board wastes accumulated during vessel operationsâ€? and the capability of â€œoff-loading wastes retained to a reception facilityâ€?. The GLWQA mandates that proper disposal of operational wastes be required under shipping and environmental laws. The proposed regulation does not move the CSA any closer to this goal.
Likewise the Remedial Action Plans and the Ontario Ministry of the Environment Municipal and Industrial Strategy for Abatement (â€œMISAâ€?) require industry to use the best available technology that is economically achievable to reduce pollutant levels to allowable levels.
The proposed regulations do not require ships to use the best available technology required under MISA, nor do they require ships to have the capability of off-loading wastes to a reception facility under the GLWQA.
3. The proposed regulation is premature in light of the scientific uncertainty underlying the cumulative and long-term effects of cargo sweeping in the Great Lakes.
The proposed regulation entrenches criteria for cargo discharge that are not evidence-based. There is no scientific or other basis for the proposed 12-mile and 5.2-mile limits for the authorized discharge of cargo residues.
What is known about cargo residue discharge indicates that it is harmful
According to the Melville study, most cargo residue discharge occurs in transit, and most of this discharge is coal and iron ore. Iron ore dissolved in water speciates according to the pH. Coal, once weathered, becomes incorporated into sediments where it becomes similar to PAHs. These compounds are very persistent in sediments and can be released into the water as they degrade. Coal can also contain phyritic sulphides that can be released during weathering and released into the water particularly under acidic conditions.
The cumulative impacts of pollutants have been the severe degradation of the overall environment of the Great Lakes. Heavy metal contamination is a serious problem in the great lakes and any spillage should be viewed with concern.
The toxicity of these compounds to fish is well known. The electronically excited molecules can cause oxidative damage to cells in which they are present, eventually leading to death. Larval fish are especially vulnerable because of their high lipid content, translucency and habitat.
The offshore ecological community may be impacted by the mile limits
The 12 and 5.6 mile limits have no known relationship with the prevention of harm to fish habitat or to important vulnerable organisms like Diporeia in the offshore community. The linkage between nearshore and offshore use by different life stages of most fishes in the Great Lakes is poorly known. The entire Lake plays a role in fish ecology, and accordingly Canadian laws protect the entire Great Lakes system.
The NOAA working group noted that shallow water zones are not confined to nearshore areas. The working group also pointed out that the use of a mile distance is "arbitrary". The proposed regulations ignore these findings.
The NOAA working group memorandum also outlines a number of highly important issues related to the lack of knowledge of the environmental impact of cargo residue discharge in the great lakes. The working group clearly recommended that sensitive habitat and spawning areas should be protected from cargo discharge. They noted that in Lake Ontario the Mulcaster patch and Scotch bonnet shoals were particularly sensitive; these shoals are not factored into the proposed regulations.
The Melville study noted that there is little information on the behaviour of ores as carried by ships once they enter the water. The NOAA technical memorandum found that Iron ore, coal, petroleum coke, millscale and slag had the â€œpotential for both acute and chronic environmental impacts and were worthy of more intense scrutiny.â€? The NOAA working group warned that these materials could build up in sediments contaminating them and could suffocate spawning and habitat substrates.
Diporeia is a key organism in the historic Lake Ontario food web and an important high-energy food source for Lake Ontario fish. Diporeia is the dominant food organism of the slimy sculpin and many fish species feed on diporeia at some stage in their life cycle. Diporeia populations are no longer found in their preferred habitat in Lake Ontario (30 m to 60 m bottom depth) and are now relegated to bottom depths of >100 m. In some other lakes they are no longer found at all. The outer depths where these organisms now find refuge is precisely where the proposed mile limits will put cargo residue, which is highly likely to adversely impact these organisms.
The 1993 Melville study findings on environmental issues are premature when there is a critical lack of knowledge about the impact of these discharges on water quality and fish habitat. The 1993 Melville study findings that cargo discharge would have little impact was based on no data on the actual behaviour of cargo sweepings in offshore areas, and does not examine the actual offshore ecology of the areas outside the limits near fishing lanes.
The proposal that mile limits, not based on any known environmental science should be adopted as permanent regulations flies in the face of basic common sense. The proposed regulations also fly in the face of such important environmental protection doctrines as the precautionary principle.
Cargo sweeping is illegal in Canada under a number of environmental statutes; where, when and how much cargo sweeping is fundamentally an environmental issue, not a shipping regulation issue and is outside the intended scope of the Canada Shipping Act.
LOW recommends accordingly that the proposed regulations not be adopted by Transport Canada.
Our entire submission is available for download here.