The Government of Nova Scotia has recently released "A discussion paper" describing their proposed direction in the next scheduled (or behind schedule) revisions and updates to the Environment Act. They have invited public comment. The paper can be found here: http://www.gov.ns.ca/nse/dept/docs/env.act.review.2011.pdf
This will be the third time I have responded to a request for public input, and, frankly, I am not expecting much. Mainly because the previous two times there was not one response, and none of the issues I identified were fixed prior to the proclamation of the revised Act. Including some very bad typos that actually changed the intent of the legislation for the bad, and were subsequently enforced as law by the Department. We have been conditioned to think of this Department and the term "Public Consultation" as mutually exclusive. Dealing with them day to day, we know they do not respect the public's interests, and their lack of attention to any responses, such as this one of mine, is simply normal behaviour from them.
So, with that deluge of optimism, let's begin! I am only reviewing this document, and by inference, the existing Act and Regs, from a perspective I know very well, that of how it works with the current administration of the on-site sewage disposal and small scale sewage treatment world. This is an area where I have practiced for almost 30 years.
To start with, the paper immediately points out the first of the Department's failings. An inability to comply with their own Act. First passed in 1995, and mandated to be updated every 5 years, it took them 12 years to do the first two updates, although I seem to recall one of those was not really a formal update - perhaps I am incorrect on that. Later on in the document, will we find them asking to have this requirement waived or changed, giving them less public scrutiny and obligation to respond to how the world changes? I wonder.... I mean, who wants to be held accountable every 5 years!!
The current Act states it's purpose very clearly, and it has long been my opinion that the Department has been abdicating part of its responsibilities under it. Here is what the Act is supposed to be all about:
Purpose of Act
2 The purpose of this Act is to support and promote the protection, enhancement and prudent use of the environment while recognizing the following goals:
(a) maintaining environmental protection as essential to the integrity of ecosystems, human health and the socio-economic well-being of society;
(b) maintaining the principles of sustainable development, including
(i) the principle of ecological value, ensuring the maintenance and restoration of essential ecological processes and the preservation and prevention of loss of biological diversity,
(ii) the precautionary principle will be used in decision-making so that where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation,
(iii) the principle of pollution prevention and waste reduction as the foundation for long-term environmental protection, including
(A) the conservation and efficient use of resources,
(B) the promotion of the development and use of sustainable, scientific and technological innovations and management systems, and
(C) the importance of reducing, reusing, recycling and recovering the products of our society,
(iv) the principle of shared responsibility of all Nova Scotians to sustain the environment and the economy, both locally and globally, through individual and government actions,
(v) the stewardship principle, which recognizes the responsibility of a producer for a product from the point of manufacturing to the point of final disposal,
(vi) the linkage between economic and environmental issues, recognizing that long-term economic prosperity depends upon sound environmental management and that effective environmental protection depends on a strong economy, and
(vii) the comprehensive integration of sustainable development principles in public policy making in the Province;
(c) the polluter-pay principle confirming the responsibility of anyone who creates an adverse effect on the environment that is not de minimis to take remedial action and pay for the costs of that action;
(d) taking remedial action and providing for rehabilitation to restore an adversely affected area to a beneficial use;
(e) Government having a catalyst role in the areas of environmental education, environmental management, environmental emergencies, environmental research and the development of policies, standards, objectives and guidelines and other measures to protect the environment;
(f) encouraging the development and use of environmental technologies, innovations and industries;
(g) the Province being responsible for working co-operatively and building partnerships with other provinces, the Government of Canada, other governments and other persons respecting transboundary matters and the co-ordination of legislative and regulatory initiatives;
(h) providing access to information and facilitating effective public participation in the formulation of decisions affecting the environment, including opportunities to participate in the review of legislation, regulations and policies and the provision of access to information affecting the environment;
(i) providing a responsive, effective, fair, timely and efficient administrative and regulatory system, recognizing that wherever practical, it is essential to promote the purpose of this Act primarily through non-regulatory means such as co-operation, communication, education, incentives and partnerships, instead of punitive measures. 1994-95, c. 1, s. 2; 2006, c. 30, s. 1.
I always like to point out the inclusion of the phrases "socio-economic well-being"; "sustain the environment and the economy", "linkage between economic and environmental issues", "encouraging the development and use of environmental technologies, innovations and industries", and, of course, the final clause: "providing a responsive, effective, fair, timely and efficient administrative and regulatory system, recognizing that wherever practical, it is essential to promote the purpose of this Act primarily through non-regulatory means such as co-operation, communication, education, incentives and partnerships, instead of punitive measures. "
I like to look at these, because these are the parts the Department has basically chosen to ignore over the past 10 or more years. They have completely turned their administrative backs on any care for the public's "socio-economic health". A repeated and common mantra we hear regularly from NSE officials is "the cost is not my problem". To find anyone in that Department who can grasp any issue related to linkages between economic and environmental issues is rare. Maybe they are closeted away on Terminal Road somewhere, but we never see them. The only linkage to the economy with NSE we can demonstrate is how they damage it, without a commensurate benefit to the environment.
The mandate to encourage environment technologies is, in my experience, laughable. Or sad. If anything, the opposite occurs, as it is pretty well impossible to establish a new idea here. When I, and my partners, attempted to do so years ago, this same Department funded another company to copycat our product and attempt to patent-break it!
Currently, there are three "approved" technologies using peat to filter on-site sewage disposal effluent. Department policy has resulted in each of them having their own different siting, construction and approval requirements. One of the systems is so restricted by how NSE allows it to be used, that its practical application is essentially non-existent, and probably completely non feasible for its owner.
As for a fair and timely process, well, consider this: When one engineer went on vacation last summer in Bridgewater (and again this year), just from the files of my company alone, about 50 homeowners had to wait at least one extra month for an approval to install an on-site sewage disposal system, which they needed first, to get a building permit. This effectively halted all new home construction on the South Shore for over a month.
When we made this apparent to the MLA, and to the administrators in Halifax (none of whom know anything about septic system design) the response we got was to have NSE send one of their inspectors out on what seemed to be every one of our jobs, to try to find things we might have done wrong at one time, and to audit our old files looking for retribution. They then sought to actually charge us for making paperwork typos or engineering judgements that differed from their technicians' interpretation of their rules or policies (more on policies later), but had not even come close to causing any adverse effects. This is the kind of organization that is attempting to change their own legislation. This is how they work, with a totally self insulating, vindictive and often arrogant lack of concern for their primary mandate. They need to be obligated to greater responsibility towards the people of Nova Scotia, not less.
Their own staff recognize this problem - in their own recent employee survey, staff morale has dropped off the table since 2009, with the main cause being cited as a lack of clear direction and communication from their head office with respect to personnel issues, and direction on enforcement.
Embedded in this current discussion paper, albeit in nice words, is the removal of their obligations to act in an economic and socially responsible manner. Of course they want to be relieved of this obligation - they already consider it superfluous and demonstrate their disdain for the public on a regular basis.
So, to summarize. If you see anything in this discussion paper that involves giving this Department any more power or authority, or reduces their obligation to respect the socio-economic welfare of Nova Scotians, you will see something that should not be allowed to proceed. They have simply not demonstrated the maturity and good judgement to justify affording them any more trust to do the right thing than we would a large multi-national corporation. Their own people don't trust them to make good decisions, why should we?
Goal #1: Matching resource use to the level of risk to the environment and human health
Ooops!! What happened to socio-economic well being? Gone. They want to abdicate their responsibility to care about Nova Scotians.
Now in this section there are some good words, but take care - if they are no longer required to consider the economic implications of their decisions it won't make things worse, it will simply validate their current behaviour. And that is to not care a whit about what they do to a family's, or a company's, bottom line. They don't want to have to ever worry about that silly little money thing.
Understanding environmental risk requires an understanding of the science behind most of the environment features and functions that need to be protected, or enhanced. Let's take wetlands. There are many different types of wetland, each with their own environmental sensitivities, and resiliencies. Most are less sensitive to nearby development than open watercourses. Yet current regulations under the Act assign a greater importance to any type of wetland than even the most sensitive watercourse. This does not really communicate any confidence that the Department even understand what it is mandated to protect. Indeed, the focus on wetlands in Nova Scotia is like worrying about getting enough rain. We have a lot of land in Nova Scotia that currently meets the description of a wetland. The joke is that Shelburne County is now totally undevelopable.
The design of a single family home on-site sewage disposal system (septic system) is an interesting one. This is an important, Province-wide consideration, as about one half of all Nova Scotians rely on septic systems to treat their sewage. In some cases there is real risk. A badly designed or sited septic system can contaminate someone's well and make them sick.
In 1997, NSE went to a lot of trouble and expense to allow people with no engineering or public heath background to assess land, size lots, select septic systems, and locate them on those lots. NSE effectively used their powers under this Act to discourage the public from accessing the services of a professional who would presumably have some expertise in surface water flow, biology, sewage treatment and hydrogeology. Instead, they created a pseudo-trade of people they called "Qualified Persons Level 2" who NSE themselves then "qualified" - not any school, university or even existing industry association. NSE then actually created and funded a new Industry Association for this new group of pseudo-designers. One has to wonder what kinds of logistic gymnastics someone went through to demonstrate that they were satisfying any of their mandates under the Act by doing all this. Had they left the work to Professional Engineers, they would not need to worry about protecting the public good at all - Engineers are already so obligated by another Provincial Act. The economic benefit to the public would become clear soon enough. To hire one of the QP2 people to take care of your septic system only costs $500~$800, to hire an Engineer costs $1200~$2000. But to build an engineer-designed system usually costs about $3000 to $5000 less. But, you see, NSE do not care about your money.
Goal #2 Using resources more efficiently and effectively
One of the more obvious problems the Department has demonstrated in dealing with sewage treatment is a total ignorance of what other legal and technical jurisdictions already govern some of the spheres of work they are attempting to regulate. Of particular note is the Engineering Act, where the work of Professional Engineers is already regulated and governed. Only recently has NSE actually assigned an engineer to look after the on-site program, their division with the most employees and one that regulates how more than half of Nova Scotians manage their domestic waste. In case you did not know, we have not had a Chief Public Health Engineer in Nova Scotia in about 20 years.
Words like "a mandatory standard or code of practice" always sound good to people who never do the actual work. It makes them feel safe, when the reverse is usually true. In real life, these sort of things, developed in advance of doing the actual work, only apply to the average, normal occurrences. Many times a prescribed solution is not the best, and often causes more harm than good, because the situation encountered in real life does not fit well with the mandated solution that someone ass-u-me-d would fix everything.
Instead of being concerned about the intent of the Act (is our environmental, public health, and socio-economic well being really protected?) it is the process, the regulation itself, that is being protected by staff and their policy, not our environment. This problem is further amplified when such codes or practices are created by people who are not actually practitioners - and exacerbated when they are administered by lawyers. The actual goal - to reduce or eliminate adverse effects, is lost in the haze of bureaucratic protection of self developed policy. That's how it is now in the part of the Environment Act that we have to wrestle with daily. One engineer I know said to me recently that he felt like his entire engineering skill set and imagination was becoming dedicated to finding ways around the rules just to be able to serve people in the best way possible, rather than designing better ways to do it with Engineering thought and advancement of technology. This is depressing, really.
So, in the spirit of contribution, here is how NSE can truly match resources efficiently and effectively in the on-site sewage disposal and small scale sewage treatment business. Get out of the way of Professional Engineers who are trying to practice professional engineering. We are already regulated once, by a Act of the Legislature. Don't waste your own personnel resources subjecting us to a double jeopardy in our work. If we figure out a new way to prevent an adverse effect from occurring that saves the public money, let us be Engineers and apply it to the public good. If we mess up and cause an adverse effect to occur, then yes, we have a liability under the Environment Act, and possibly under the Engineering Act. If we make a typo on some form or drawing, but no harm ever happens to anyone or to the Environment, just go away. Mistakes happen on engineering drawings all the time, but we fix them. We are responsible for our work, we already have an Act that makes us so much more responsible than any subsequent piece of poorly written legislation you can dream up, you are wasting your staff time and public resources trying to regulate an already regulated group of people, and you are stifling our ability to serve the public. Our job is to help people. Let us do our job.
There - I just saved Nova Scotians about $500,000 a year in personnel cost.
The discussion paper talks about redefining the concept of an "adverse effect" in a manner that will eliminate any care for our reasonable enjoyment of life or property. This sends a clear message: NSE don't really care about you, and they don't care to be mandated to care about you. They'd really rather have this review never happen, and do whatever they pleased, even if it means we can no longer enjoy our property in a reasonable manner. The interpretation of "reasonable" is something we allow the courts to decide in most every other walk of life. Noise bylaws, for example. NSE are now trying to remove even the oversight of common law and decency from their obligations to us.
There is discussion about "round tables", "advisory committees" and the like. That's interesting... they even seem to think they may have value. My experience from having been on three of these in the past is that, with one exception, the NSE representative on the committees never showed up for a meeting. This includes one committee that had a great representation of all the industry stakeholders, and oversaw and directed much of the technical research and support that we now all use to design on-site sewage disposal systems in Nova Scotia. They stopped listening to the ideas coming from that committee so it simply disbanded. I believe it shows in the advancement of policy since then.
The next proposal is no surprise. NSE only want to have to be subjected to this horrid, distasteful public scrutiny every 10 years instead of every 5. From a technical perspective, in the past 10 years, the field in which much of my practice exists, and it is regulated by this Department, has radically changed such that they are about 6 years behind the times now. We are able to save people money and allow a much better, sustainable means of developing land, but this out of date, behind the times "authority" has not caught up to the private sector, and we cannot properly serve the public because our industry is hamstrung by an out of date, disinterested, and in many instances, unqualified bureaucracy. If NSE can't stay current with a review every 5 years, how can 10 year intervals represent an improvement?
Timelines for approvals are in some need of repair. In the part of the Act I deal with, it's random. On one application it's 2 days, then next it's 6 months. And this is sometimes just trying to get permission to fix a malfunction that is causing an ongoing adverse effect, so the bureaucratic delay actually causes that adverse effect to continue or occur.
Here's one suggestion that will fix most of this problem in the on-site business. Change to a notification process for engineering designs for single family on-site sewage disposal systems (NOT QP2 submissions, unless you rally want adverse effects). We can investigate, design, oversee and certify a system and then register it with NSE with as-built drawings, owner, PID, design notes etc. Variances would still need to be approved, but the worst case scenario would still be a working system protecting the environmental, public health and socio-economic well being of Nova Scotians, just maybe not always in exactly the same way that NSE's own (often less experienced) staff would have done the work. But there would be no adverse effects and the work would be done in a timely manner, under the supervision of a Professional. Remember, regardless of whether there is an Environment Act or not, we Engineers are still liable and obligated to do the work such that it protects all three of those things, including caring about what it costs someone (this obligation to care puts us in conflict with an otherwise uncaring NSE on a regular basis). We tend to regard any prescriptive parts of The Environment Act or regulations thereunder as unnecessary, because, when it comes to regulating Engineering Design work, they simply are. Give us the desired results, don't tell us how we achieve them. Define the problem, not the solution. The solution part is our job.
Goal #3 Strengthening protection for the environment and human health
I just noticed - the word used in the legislation is "human" health, not "public" health. I think NSE abhor the term "public". How can you argue that socio-economic well being, or "health" is no longer something to strive for in how the act is administered? This is the same ethos we now live with that has resulted in decisions by NSE that have put seniors into government homes early, when their families would have kept them in their home; threatened to take away property from families on which taxes have been paid for generations; and has been applied to pursue a dogged interpretation of regulations in a manner as punitive to people's economic well being as possible, with no care whatsoever as to a family's financial circumstance or social structure.
Much of these proposed changes around giving Inspectors more flexibility and authority sound just fine until you have to deal with some of the inspectors we now have. Not that they are not good people, they simply are under-educated and too inexperienced to make the types of decisions they are being asked to make. Many of the decisions that are made by NSE staff can easily be described as falling under the term "engineering judgement". Engineers don't allow graduates of a 5 year science based university program to make such judgements until they have been working under another Professional Engineer, and overseen by an independent mentor, for four years after they finish University. Yet we are expected to not question and accept orders from a recent graduate of a two year community college course in water resources? All too often, they know the letter of their law, but they might as well be asking water to flow uphill, they know so little about how things work and what the rules actually mean. Again good, well meaning people, but asked to do things they are not qualified or ready to do.
Goal #4 Correcting the errors and inconsistencies in the Environment Act
To do this properly would mean writing a totally new piece of legislation. The Regulations Respecting On-site Sewage Disposal need to be re-written, as well as the parts of the Act that prescribe specific numbers for areas. clearances etc. directly in a legislative document, such that it takes a Minister's signature to authorize even the smallest change to an otherwise arbitrary minimum lot area. Many many times a year, obvious common sense solutions that would harm no one and benefit all, are refused approval by NSE because they are very slightly under some hard and fast number that is written into the legislation and which NSE staff are too weak, or not empowered, to vary, even when it makes sense to. Common sense never gets a chance.
The biggest problems in the current legislation and policy are those that remove staff's incentive to care about the well being of the public and allow them some twisted interpretation to needlessly disenfranchise people. Some of my experiences with these decisions have felt like the Department (because it was not just one person) was acting out of pure spite and hatred toward an unsuspecting citizen. I remain appalled at some of them.
The Act clearly needs to properly allow for the inclusion of "engineering judgement" in cases where the Act or regulations made thereunder are unclear. Regulations can never anticipate every circumstance (there are ALWAYS grey areas), and in which of several directions a solution to an environmental problem can procede. That is what Engineering design and judgement is for.
Part II Should We Introduce Administrative Penalties?
And now, Part II, in which Franz Kafka and Joseph Heller are hired by Nova Scotia Environment to design a new enforcement system.
This part might bear the alternative title of "Because the charges we lay are almost never about any actual adverse effects, we never win in court, so we are going to replace the justice system with our own judgement!"
I love how this includes a point of discussion: "What are the benefits and drawbacks of this approach?" but then the drawbacks are never discussed. I guess they left that for me.
In short, this Department has not demonstrated the maturity, good judgement, and overall care for the people of Nova Scotia to be entrusted with even the level of authority they now have, let alone such an enhanced Draconian proposal as this could end up being.
Consider this. In the on-site business we work in, our current governance is as much about adhering to policies, thought up on an apparently random basis, by different staff members over the past 17 years, than it is about following the actual Regulations and the Act. This collection of policies, written up to address every little thing that has happened outside of the normal course of work over that time, is thicker than the regulations. Worse, once written and accepted by management, these policies then start to be applied broadly all over the Province to other situations where they really don't apply, were never intended to apply. To add to the inanity, they are blindly enforced if their enforcement stops something from moving forward, but never mentioned if they might enable something to happen. It's never about how to do it right, or do it better, it's about coming up with new ways to say no.
These ad hoc policies are not all in one place where you can find them, and sometimes we never know they exist until we cross some unpainted line. None of them were ever proclaimed by the legislature, yet it seems they are seen to hold the same force of law as anything that was. NSE already have the authority to make the rules up as they go! And they do. Several times over the past decade we have had an Application for Approval come back rejected because of a new policy about which we had not been informed. Just as if an RCMP officer told you you were speeding because the limit wasn't the posted 100 KM/hr, it was 80 KM/hr, but they had not yet changed the signs, and by the way, they lowered it because one little old man lost control of his car and now everyone has to slow down. With these proposed "Administrative Penalties", in addition to being able to make things up as they go, they also want the authority that would be equivalent to having that RCMP officer be authorized to take your money from you right there, by force if need be, and with no recourse!
They want to be judge, jury, and executioner. They cannot be allowed to escape the recourse of law, and access to justice for the people they want to punish.
Or wait, maybe Nova Scotia is now some third world state?
The Department simply do not have the technical and moral authority to handle that kind of responsibility. Then again, no one entity does. That is why we have Professional Engineers, and why we have a justice system. And why these proposed changes should not be allowed.
No comments:
Post a Comment