Each year, Canadian waters receive billions of litres of untreated wastewater. After a number of high profile prosecutions of municipalities for depositing these “deleterious substances,” and after three years of consultation on national wastewater standards, the new Wastewater Systems Effluent Regulations under the federal Fisheries Act have come into operation.
The objective of the regulations is to decrease the level of deleterious and harmful substances discharged in wastewater effluent. This objective is expected to be fully implemented through various timelines extending to 2040.
The rules apply to a wastewater system — publicly or privately owned — that collects, or is designed to collect, an average daily volume of 100 cubic metres or more of influent and that deposits a deleterious substance when it discharges effluent from its final discharge point. The regulations do not apply to a wastewater system that is located on the site of an industrial, commercial or institutional facility if the wastewater system is designed to collect influent whose volume consists of less than 50% blackwater and greywater combined.
Of the more than 3,500 wastewater facilities in Canada, the Regulatory Impact Analysis Statement contemplates that the regulations will require upgrading a total of 849 facilities by 2040.
Overcoming inconsistencies across Canada
The management of wastewater in Canada is subject to shared jurisdiction, which has produced regulatory regimes that are inconsistent and have resulted in varying levels of treatment across the country.
To address this situation, the new regulations were developed to harmonize the approach to managing wastewater effluent and set national baseline effluent quality standards. The regulations cover matters such as toxicity, monitoring, record-keeping, and reporting.
Bilateral administrative agreements between the federal government and each of the provinces and Yukon will be established to define the primary interface for administering the regulations. All reporting requirements must be filed with the appropriate authorization officer as set out in Schedule 1 to the regulations, but the details are still being worked out.
The phase-in of the regulations has started with effluent monitoring requirements. The initial monitoring and reporting requirements came into force in 2013 (see “Duties of owner/operator — monitoring and reporting,” below).
Key future dates are:
• January 1, 2015 — The requirement to meet either the national effluent quality standards for CBOD, the concentrations of suspended solids, and un-ionized ammonia, or the limits for those substances as authorized through transitional authorizations, comes into force.
• January 1, 2015 — The requirement to meet the effluent quality standard for total residual chlorine comes into force either on January 1, 2015 for wastewater systems with an average daily design rate of flow of 5,000 cu.m or more of influent, or on January 1, 2021 for all other wastewater systems.
A significant portion of large wastewater systems that do not currently meet the standards are considered to be high risk. These are required to meet the effluent quality standards by December 31, 2020. Wastewater systems posing a medium risk are required to meet the standards by the end of 2030, and those posing low risk by the end of 2040. What ranks as a high, medium, or low risk system depends on the risk to the receiving environment.
Authorization to deposit
The regulations allow wastewater effluent, which is generally considered a “deleterious substance,” to be deposited in water contrary to s.36(3) of the Fisheries Act as long as the effluent meets the discharge parameters set out in the regulations. In other cases, the regulations provide for transitional, temporary and other authorizations to allow system owners time to achieve compliance.
The regulations (automatically) authorize the deposit of the following substances, subject to certain conditions:
(a) carbonaceous biochemical oxygen demanding
(b) suspended solids;
(c) total residual chlorine; and
(d) un-ionized ammonia (NH3).
Under subsection 6(1) of the regulations, a wastewater facility may deposit effluent that contains these substances if the following criteria are met:
(1) the effluent is not acutely lethal (as determined in accordance with section 15); and
(2) the effluent meets the following conditions:
“Acutely lethal” is defined in Section 1 as the effluent killing more than 50% of the rainbow trout subjected to it during a 96-hour period.
Duties of owner/operator –
monitoring and reporting
The effluent and monitoring requirements in the regulations vary slightly depending if the average daily volume of effluent discharged in a calendar year is greater or less than 2,500 cubic metres.
• Volume of Effluent. Since January 1, 2013, all owners/operators of wastewater systems have had to calculate, for each calendar year, the average daily volume of effluent deposited at the final discharge point.
• Monitoring and Composition of Effluent. Since January 1, 2013, all owners/operators of a continuous wastewater system have had to install monitoring equipment that provides a continuous measure of influent or effluent volume. The owner/operator must maintain and calibrate this equipment within a margin of error of ±15%.
A table in section 10(2) prescribes minimum sampling frequencies and the type of sample to be collected for continuous wastewater systems based on average daily volume of effluent discharged. Systems that deposit larger annual average daily volumes of effluent are required to monitor more frequently. The owner/operator must determine each sample’s composition of the CBOD and the concentration of suspended solids.
From January 1, 2013 until July 1, 2014, the owner/operator must also determine each sample’s concentration of un-ionized ammonia. This requirement is to find baseline quality data.
• Acute Lethality Testing. Commencing January 1, 2015, all owners/operators must take samples in the minimum frequency prescribed by a table in subsection 11(1) and determine whether or not the sample is acutely lethal. If it is, additional requirements apply under subsection 11(3). However, the minimum sampling frequency is reduced if consecutive samples are determined not to be acutely lethal.
• Record Keeping. All owners/operators are required to make and keep composition and characterization reports. as well as records containing all information prescribed by section 17.
• Reporting. The requirements for submitting identification, monitoring, and combined sewer overflow reports came into force on January 1, 2013 but have a variety of compliance dates.
The identification report, which identifies the name, address, type and owner of the wastewater system, must contain the details prescribed in subsections 18(1)-(3) and must conform to the form and format specified by the Minister of Environment.
Monitoring reports must be sent annually or quarterly, depending on the size and type of wastewater facility.
Transitional and temporary authorizations
• Transitional Authorizations. When a wastewater system does not meet the national effluent quality standards for CBOD and/or the concentration of suspended solids (i.e. exceeding 25 mg/L), the owner or operator may apply for a transitional authorization before June 30, 2014. This application will be reviewed by the authorization officer.
Transitional authorizations establish the conditions under which such a system may continue to operate, and set the risk-based timeline to meet the standards.
All transitional authorizations commence January 1, 2015. Wastewater systems posing a high risk (70 or
more points under Schedule 2) are required to meet the effluent quality standards by December 31, 2020. Those posing a medium risk (50 or more but less than 70 points) are required to meet the standards by December 31, 2030. Systems posing a low risk (less than 50 points) must meet the prescribed standards by December 31, 2040.
• Temporary Authorization to Deposit Un-ionized Ammonia. One type of temporary authorization permits under specific circumstances, including considering the receiving environment, the deposit of an effluent that is acutely lethal solely because of the concentration of un-ionized ammonia. An application for this type of authorization must be made to the authorization officer within 30 days after the date when it is established that the effluent is acutely lethal due to the concentration of un-ionized ammonia.
• Temporary Bypass Authorization. The other temporary authorization permits the bypass of effluent with or without partial treatment under certain circumstances, such as planned maintenance or construction activities. The sections allowing for a temporary bypass authorization do not come into force until January 1, 2015.
An application for a temporary bypass authorization is required to be submitted at least 45 days before the day on which the bypass is scheduled to begin. The application will be reviewed by the authorization officer and, if accepted, the authorization will be issued no later than 21 days from the date of receipt of the application.
Authorization Officer. Bilateral administrative agreements between the federal government and each province and Yukon are expected to be put in place to ensure the efficient administration of the regulations. These agreements will clarify the roles and responsibilities of jurisdictions on administrative elements such as the regulatory reporting, data exchange, compliance promotion, and enforcement activities.
While the new regulations provide some greater clarity and consistency to the regulation of wastewater under the Fisheries Act, and provide time to ensure compliance, considerable capital funding will be required to upgrade existing facilities to these requirements.
But the question remains — How will these upgrades be funded? cce
Regulatory Impact Analysis Statement, (2012). C Gaz II, 1695 (vol. 146, no. 15, 18 July, 2012)
Canadian Council of Ministers of the Environment, “Canada-wide Strategy for the Management of Municipal Wastewater Effluent,” (17 February, 2009).
Tony Crossman is a partner with Miller Thomson LLP in Vancouver, firstname.lastname@example.org