October 31, 2002
Office of the Auditor General of Canada and the Commissioner of the Environment and Sustainable Development Attention: Petitions 240 Sparks Street Ottawa, Ontario, K1A 0G6
Dear Sir or Madam:
Please find enclosed a petition from the offices of Lake Ontario Keeper, submitted under the Auditor General Act.
Further to our discussions with Ms. Scott, the attached petition is a revised submission to the document delivered September 29, 2002 regarding the Oshawa Harbour Commission?s plan to fill in part of the Oshawa Harbour and to close and redevelop the Oshawa Marina.
Our requests deal with the permitting processes under the Fisheries Act and the Navigable Waters Protection Act, procedural requirements of the Canadian Environmental Assessment Act, and accountability mechanisms for Harbour Commissions.
Thank you for your consideration.
Lakekeeper & Counsel
Petition regarding the proposed redevelopment of the Oshawa Marina
A former hazardous waste disposal site lies adjacent to the Lake Ontario shoreline in Oshawa, Ontario. The site accepted wastes between 1937 and 1957 and is considered to be contaminated by hazardous materials.
The Oshawa Harbour Commission assumed control of the harbour area in 1960, at which time the waste disposal site was not uncovered. The waste site lay undisturbed until 1976 when the Oshawa Harbour Commission created Basin 3 to provide additional docking space for the Oshawa Marina, then called the Durham Cruise Marina.
Numerous reports commissioned by various parties since 1983 describe levels of contamination within the site, the surrounding area, the surface waters of Lake Ontario, and the harbour sediments. The barrels which once contained waste such as paints, thinners, and paint sludges can now be seen protruding from the banks of the nearby Montgomery Creek.1
In May of this year, the Harbour Commission announced that the Oshawa Marina and Yacht Club would be closed, that Basin 3 would be filled, and that the site would be paved over to create a parking lot.2 The Harbour Commission cited environmental and financial reasons and instructed marina users to leave the property by October 1, 2002.
The old hazardous waste site can be considered federal land because it lies within Harbour Commission jurisdiction. Such land would be exempt from provincial environmental legislation, suggesting that diligent enforcement and application of federal laws is the only way to protect the health of the surrounding community and environment. To these ends, the concerns and questions outlined in the section below address the applicability of federal environmental and accountability mechanisms.
Concerns and questions
The following section outlines a number of concerns and provides a list of questions designed to address each concern. LOK would appreciate a formal response to each question from the appropriate government agency.
Federal government investigations and abatement activity and policies
The Oshawa Harbour Commission (OHC) exposed hazardous wastes in 1976 during expansion of the Marina.3 Both Environment Canada and the OHC have known since at least 1983 that the hazardous waste site was not properly contained and presented a potential threat to environment and health,4 yet the OHC has been allowed to continue operating the site without being subject to voluntary or mandatory abatement proceedings.
Numerous reports since 1983 have indicated that the landfill is likely contaminating the Oshawa Harbour. One 1994 report states on at least two occasions that remediation of the old landfill is required under the Fisheries Act.5
Recent statements made to the press by Donna Taylor, CEO of the Oshawa Harbour Commission, suggest that stricter oversight on the part of environmental officials might have led to more remediation activities in the last two decades.6
Question 1: Has Environment Canada at any time initiated an investigation into possible Fisheries Act violations resulting contamination leaking from the former hazardous waste disposal site?
Question 2: If no, why has Environment Canada neglected to initiate such an investigation in light twenty years? of reports and studies which indicate the landfill is likely contaminating Lake Ontario? If yes, when was the investigation conducted, how was it carried out, and what were the findings?
Question 3: Further to the comments made by Ms. Taylor, what is the official policy of the Government of Canada regarding the obligations of Harbour Commissions in ensuring property within Harbour Commission jurisdiction complies with environmental laws? Does a lack of notice from environmental authorities absolve Harbour Commissions from responsibility for investigating or addressing environmental concerns?
Question 4: What is the status of the Oshawa Harbour and surrounding Harbour Commission lands with regards to the ?Federal Contaminated Sites and Solid Waste Landfills Inventory?? Is there any federal legislation relating to contaminated sites on federal lands?
Process-related legislation and policy
The Oshawa Harbour Commission gave notice on May 21, 2002 that the Oshawa Marina would be closing, citing environmental reasons and future capital expenditures. Statements made to the press by Harbour Commission CEO Donna Taylor7 together with twenty years? of inactivity with regards to the landfill site raise concerns that compliance with environmental laws and policies may not be the Harbour Commission?s primary objective. LOK seeks to ensure that these laws and policies are respected.
In order to proceed with the plan described in its May 21, 2001 press release (?A New Future for the Port Oshawa Marina?), it would appear that the Oshawa Harbour Commission must secure permits under the Fisheries Act,8 the Navigable Waters Protection Act,9 and Ontario?s Lakes and Rivers Improvement Act.10 Further, LOK is of the opinion that the project should undergo at least a Comprehensive Screening Environmental Assessment under the Canadian Environmental Assessment Act.11 Such a process would be consistent with the Commissioner of the Environment and Sustainable Development?s recommendation that ?regulations be developed to remove gaps for federal entities not covered by the Canadian Environmental Assessment Act.? It would also address concerns that ?present processes offer no guarantees of public participation for larger projects, have a lack of documentation on the review process and a lack of transparency."12
A recent media report states that Transport Canada has already given its approval for the project, pending development of a remediation plan.13 At the same time, the Harbour Commission has not yet released its most recent evaluation of the site and a federal government study has yet to begin. 14
Question 5: Has a Fisheries Act permit been applied for or secured for this project?
Question 6: Has a Navigable Waters Protection Act permit been applied for or secured for this project?
Question 7: Has a Project Description or any other document pertaining to redevelopment, remediation, or other in-filling, capping, or dredging activities at the Oshawa Harbour been submitted to the Canadian Environmental Assessment Agency or any other Responsible Authority under CEAA?
Question 8: Does the Canadian Environmental Assessment Act apply to Harbour Commissions? If so, given that Harbour Commissions would be required to initiate environmental assessments ?as early as is practicable in the planning stages of the project and before irrevocable decisions are made,"15 what steps have been taken by the OHC or federal agencies such as Transport Canada and the Canadian Environmental Assessment Agency to ensure that the standards set forth in the Canadian Environmental Assessment Act are met in this case?
Question 9: If no permits have been secured and no project description been submitted for environmental assessment, by what authority has Transport Canada authorized the project? What policies or legislation allow Transport Canada to approve the staged plan prior to the development of an appropriate environmental plan?
Question 10: Is there a project description or report? If so, could LOK be given a copy of such reports?
Question 11: What public notice requirements are the Oshawa Harbour Commission and related federal or provincial agencies such as Transport Canada, Department of Fisheries and Oceans, the Canadian Environmental Assessment Agency, and Environment Canada required to follow in order to undertake this project? Requirements may include but are not limited to: providing notice of the plan to close the marina, providing notice of the plans for addressing the old hazardous waste site, issuing copies of reports and plans for the site, encouraging public consultation, and providing notice of the intent to fill in portions of the Oshawa Harbour?
Question 12: LOK formally requests that a federal Environmental Assessment be conducted and that the process be ? at minimum ? a Comprehensive Study. If it is determined that the Canadian Environmental Assessment Act does not apply to the Oshawa Harbour Commission, are Transport Canada, the Oshawa Harbour Commission, or any other project proponent(s) prepared to follow the spirit of the Canadian Environmental Assessment Act?
Question 13: In light of the advanced nature of the Oshawa Harbour Commission?s proposal, LOK requests that the Ministries responsible for issuing project permits formally advise the Oshawa Harbour Commission of its legal responsibilities and undertake diligent monitoring to ensure that these responsibilities are fulfilled and that LOK receive a copy of documents distributed for these purposes.
As an arm?s-length federal agency, the Oshawa Harbour Commission does not appear to be directly accountable to the residents of Oshawa or to the residents of Canada. The process by which the Marina has been closed and the remediation plan proposed has lacked significant public involvement, fairness, and transparency. Comments made to the press by CEO Donna Taylor16 suggest that the OHC may be under the impression that it is unbound by the obligations of due process.
Ms. Taylor?s statement also suggests that the OHC exercises sole authority over the Oshawa Harbour. R. v. Meyers (1853), however, clearly establishes the role of the crown as that of ?the guardian of public rights?, noting that the crown is ?entitled to prosecute and to cause the removal of any obstacles which obstruct the exercise of public right, and cannot by force of its prerogative curtail or grant that which it is bound to protect and preserve for public use.?
Question 14: What accountability mechanisms (i.e., policies or legislation) are in place which would prevent the Oshawa Harbour Commission from undertaking its in-filling or capping project without complying with the procedures discussed in the previous section? More generally, which of these mechanisms ensures that the OHC cannot undertake any project with impunity which may have an adverse environmental impact?
Question 15: Is the Oshawa Harbour Commission an agent of the federal government, acting in a guardian capacity on behalf of the federal government? Or, has the federal government relinquished its jurisdiction over the Oshawa Harbour to the Oshawa Harbour Commision, a non-government entity?
Question 16: Does the Oshawa Harbour Commission have an obligation to protect public rights to the Oshawa Harbour, including its waters and fisheries? If so, what policies and accountability mechanisms exist to ensure the OHC protects these rights?
We anticipate that portions of this petition would be directed to the attention of:
Fisheries and Oceans Canada
Please find attached excerpts from the reports and articles cited in the petition. Appendix A consists of excerpts from numerous studies which indicate that the old hazardous waste site is likely contaminating the Oshawa Harbour.
Thank you for your consideration of this petition. I look forward to your reply.
Krystyn Tully Programs Director, Lake Ontario Keeper
DATED: October 31, 2002
Appendix A Reports and statements which indicate the old hazardous waste disposal site is likely contaminating the Oshawa Harbour, chronological
?Surface water and sediment samples collected from basins within the marina and from Montgomery Creek have contained concentrations of some heavy metals in excess of Environment Ontario surface water and lakefill quality criteria. It is likely that some of this contamination could be attributed to the abandoned waste disposal facility that was in operation at the site prior to the mid-1950?s.? (i) Subsurface Investigation ? Abandoned Waste Disposal Facility - Durham Cruise Marina. Prepared for Environment Canada by Golder Associates, May 1983.
?Because of the more permeable nature of the fill in comparison to the till, horizontal movement of groundwater and contaminants southward towards Basin 3 and eastward towards Montgomery Creek is likely to occur.? (11) Subsurface Investigation ? Abandoned Waste Disposal Facility - Durham Cruise Marina. Prepared for Environment Canada by Golder Associates, May 1983.
The clay cover would, ?reduce the amount of contaminants leaking into Lake Ontario and eliminate infiltration of surface water runoff over the waste site.? The next paragraph reads, ?Flow that presently occurs from the landfill into Lake Ontario (Basin 3/Montgomery Creek) would be reversed, and the concentration of contaminants much reduced.? (37) Subsurface Investigation at Durham Cruise Marina. Prepared for the Oshawa Harbour Commission by Marshall Macklin Monaghan Limited, May 1984. Final Report
?Where actual wastes were not encountered, notice was made of odours which may indicate that clean fill is contaminated by groundwater emanating from the waste site.? (15) Subsurface Investigation at Durham Cruise Marina. Prepared for the Oshawa Harbour Commission by Marshall Macklin Monaghan Limited, April 1984. Draft Report.
?The abandoned waste disposal facility is a source of metal, PCB and volatile organic contamination to both the Montgomery Creek and the Oshawa Harbour.? (19) Oshawa Harbour Study. Prepared for the Corporation of the City of Oshawa by Malone Given Parsons Ltd. August 1991.
?In addition to having contaminants that exceed CCME criteria for the present use, it is a potential source of contamination of sediments in the harbour basin. The adjacent land on the east side of Montgomery Creek also received some of this waste material which was excavated to form the north basin of the marina.? (19) Oshawa Harbour Commission Port Study. Summary Report. Prepared for the Oshawa Harbour Commission by Transmode Consultants. June 1994.
?Former industrial landfill area at the north end of the marina - This is a potential source of contamination of sediments in the harbour basin. The potential requirement for remediation on this site stems from the federal Fisheries Act, Canadian Environmental Protection Act, the Provincial Sediment Quality Guidelines, and the Great Lakes Water Quality Agreement.? (31) Oshawa Harbour Commission Port Study. Summary Report. Prepared for the Oshawa Harbour Commission by TRansmode Consultants. June 1994.
?The greatest technical difficulty with any disposal or treatment option is that it does not eliminate the sources of contaminants reaching the harbour. Available evidence indicates that they are still entering the harbour from the creeks and from the former landfill site at the north end of the marina.? (36) Oshawa Harbour Commission Port Study. Summary Report. Prepared for the Oshawa Harbour Commission by TRansmode Consultants. June 1994.
?There exists a high potential for release of deleterious substances into the harbour from the industrial landfill site, as confirmed by previous studies. Immediate steps should be taken to remediate this site, as required under the federal Fisheries Act.? (37) Oshawa Harbour Commission Port Study. Summary Report. Prepared for the Oshawa Harbour Commission by TRansmode Consultants. June 1994.
?The primary step towards the greening of the POM would be the removal of the contaminated waste site which is currently situated on the POM property ? The toxic components located at this dump, which are now emerging from the waters of Montgomery Creek pose health and environmental risks. The remediation and integration of this area with surrounding POM lands should be a primary long-term objective and will lead to improvements in the environment, the aesthetics of the property and limit potential health risks to patrons and aquatic life.? (24) Pollution Prevention Practices at the Port Oshawa Marina. Prepared for the Oshawa Harbour Commission by Environment Canada. September 1999.
?Further to our notification of May 21st, 2002, this will confirm that the marina will close on October 1st, 2002, to enable us to address environmental concerns.? Marina update. Oshawa Harbour Commission, Donna Taylor. September 24, 2002.
?This dump site is deteriorating and will require very significant work (probably totally several millions of dollars) in order to ensure it does not pose any future risk to Lake Ontario from which Oshawa takes its drinking water.? (3) Letter to Gary Hood from Ivan Grose, MP. September 26, 2002.
1See Appendices B (map of site) and C (images of protruding waste). 2?A New Future for Port Oshawa Marina.? Press Release. Oshawa Harbour Commission. May 21, 2002 and sketch prepared by Barry Bryan Associates. 3 This fact is acknowledged in numerous consultants? reports, including Subsurface Investigation at Durham Cruise Marina. Prepared for the Oshawa Harbour Commission by Marshall Macklin Monaghan Limited, May 1984. Final Report. 4 See, for example, Subsurface Investigation ? Abandoned Waste Disposal Facility - Durham Cruise Marina. Prepared for Environment Canada by Golder Associates, May 1983. 5 See Appendix A. 6 ?Ms. Taylor admits the commission was well aware of the environmental concerns over the last two decades, but the marina area had never been ?red-flagged? or ?identified as a hot spot? by the environmental authorities of the day.? Martin Derbyshire. ?Hope for marina??Oshawa This Week. October 6, 2002. 7 ?We can no longer afford to subsidise the marina. We saw there were a lot of new financial burdens and it was never profitable. Then we started looking at the problem with the dump.? Martin Derbyshire. ?Hope for marina??Oshawa This Week. October 6, 2002. 8 Fisheries Act 37.(1) (a) and (b). 9 Harbour Commissions Act Section 33 confirms that the Commission is subject to the NWPA. Navigable Waters Protection Act 5.(1) (a) confirms that the project would require a permit. 10 Without a permit, the project would be in violation of 36.(1) of the Lakes and Rivers Improvement Act. 11 Canadian Environmental Assessment Act section 9 requires an EA. Comprehensive Study List Regulations section 28 (c) and/or section 32. 12 ?Regulatory Impact Analysis? for the Canada Port Authority Environmental Assessment Regulations. 13 ?Transport Canada has given its approval to the staged plan, which would see the basin drained and the dump capped, once the appropriate environmental plan is developed and approved.? (2) Christy Chase. ?Oshawa yacht club issues mayday.? Oshawa This Week. 14 Christy Chase. ?Oshawa Marina rescue attempt sinks.? Oshawa This Week. August 23, 2002. 15 Canadian Environmental Assessment Act section 9. 16 We?re going to do what we want with the marina for whatever are our reasons.? Martin Derbyshire. ?Marina users look for outside help.? Oshawa Times. October 15, 2002.