The New Wastewater Systems Effluent Regulations under the federal Fisheries Act

October 2013

Each year, Canadian waters receive billions of litres of untreated wastewater. After a number of high profile prosecutions of a number of municipalities under the Fisheries Act for depositing these “deleterious substances”, and after three years of consultation on national wastewater standards, the new Wastewater Systems Effluent Regulations (“Regulations”) under the federal Fisheries Act have come into operation.

The Regulations set the national baseline quality standards for effluent discharged from wastewater facilities and compliance will be phased in over a number of years.  Operators of so called “high risk” facilities will have to achieve compliance (and upgrade their plants) by the end of 2020, while lower risk facilities by the end of 2030 and 2040, depending on the level of risk.

The phase in of the Regulations starts with effluent monitoring requirements.  Some of the key requirements include:

  • January 1, 2013:  Effluent monitoring requirements, certain record-keeping and reporting requirements, as well as the provisions allowing for transitional or temporary authorizations to be applied for and issued come into force.
  • May 15, 2013:  An identification report must be submitted to the authorization officer.
  • January 1, 2015:  The requirement to meet either the national effluent quality standards for carbonaceous biochemical oxygen demanding matter (“CBOD”), the concentrations of suspended solids, and un-ionized ammonia, or the limits for those substances as authorized through transitional authorizations, come into force on January 1, 2015.
  • 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 m3 or more of influent, or January 1, 2021, for all other wastewater systems.[1]

THE REGULATIONS

Introduction

The management of wastewater in Canada is subject to shared jurisdiction, which has produced regulatory regimes that are inconsistent, resulting in varying levels of treatment across the country. To address this situation, the Regulations were developed to harmonize the approach to managing wastewater effluent and set national baseline effluent quality standards. The Regulations specify the conditions necessary to be authorized to deposit effluent containing deleterious substances, such as toxicity, monitoring, record-keeping, and reporting requirements. Bilateral administrative agreements between the federal government and each of the provinces and Yukon will be established to define the primary interface for administration of the Regulations.[2]

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. A significant portion of large wastewater systems not currently meeting the standards are considered to be high risk, requiring them 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.[3] There are currently 2 facilities in the Yukon requiring upgrades, one high risk and the other medium risk; however, these characterizations are not determinative.[4]

The Regulations allow certain “deleterious substances” to be deposited in water (contrary to s. 36(3) of the Fisheries Act) by authorizing them if the deposits meet the discharge parameters set out in the Regulations.  Apart from this automatic authorization, the Regulations also provide for transitional, temporary and other authorizations to allow systems time to achieve compliance with the discharge parameters.

Application:  which wastewater systems are covered?

The Regulations apply to a wastewater system that is designed to collect (or actually collects) an average daily volume of 100 m3 or more of influent and that deposits a deleterious substance when it discharges effluent from its final discharge point.[5]

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.[6]

Authorization to Deposit[7]

The Regulations (automatically) authorize the deposit of deleterious substances for the following substances, subject to certain conditions:

(a)  CBOD;
(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:

ParameterCondition 

CBOD

Average concentration does not exceed 25 mg/L

Suspended Solids

Average concentration does not exceed 25 mg/L

Total   Residual Chlorine

Average   concentration does not exceed 0.02 mg/L
 (if chlorine was used in the treatment of wastewater)

Un-ionized   NH3

Maximum   concentration is less than 1.25 mg/L
 (as expressed as nitrogen (N) at 15°C ± 1°C)

“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

Effluent monitoring and reporting requirements are specified under the Regulations. These requirements vary slightly depending if the average daily volume of effluent discharged in a calendar year is greater or less than 2,500 m3.

Volume of Effluent[8]

Beginning January 1, 2013[9], all owners/operators of wastewater systems must calculate, for each calendar year, the average daily volume of effluent deposited at the final discharge point.

Monitoring and Composition of Effluent[10]

By January 1, 2013[11], all owners/operators of a continuous wastewater system must 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%.

The 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 than those with smaller volumes. The owner/operator must determine each sample’s composition of the CBOD and the concentration of suspended solids.[12]

From January 1, 2013 until July 1, 2014, the owner/operator must also determine each sample’s concentration of un-ionized ammonia.[13]

Acute Lethality Testing[14]

Commencing January 1, 2015, all owners/operators must take samples in the minimum frequency prescribed by the table in subsection 11(1) and determine whether or not it is acutely lethal. Additional requirements apply under subsection 11(3) if a sample is determined to be acutely lethal; however, the minimum sampling frequency is reduced if consecutive samples are determined not to be.

Record Keeping[15]

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[16]

The requirements for submitting identification, monitoring, and combined sewer overflow reports come 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[17] must be sent annually or quarterly, depending on the size and type of wastewater facility.

Transitional and Temporary Authorizations

Transitional Authorizations[18]

An owner/operator of a wastewater system depositing effluent not meeting the national effluent quality standards for CBOD and/or the concentration of suspended solids (i.e. exceeding 25 mg/L) may apply for a transitional authorization before June 30, 2014. This application will be reviewed by the authorization officer and, if accepted, the authorization will be issued to align with the coming into force of the regulatory provisions that set limits for deleterious substances deposited in effluent (i.e. January 1, 2015).[19]

Transitional authorizations establish the conditions under which such a system may continue to operate and set the risk-based timeline to meet the national effluent quality standards.

The duration of a transitional authorization varies depending on the risk, which in turn, is based on the allocation of points related to the final discharge point as set out in the table to Schedule 2 and, if applicable, related to the system’s combined sewer overflow points as set out in Schedule 3[20]. The allocation of points considers the characteristics of the system’s effluent, the receiving environment, and, if applicable, the characteristics of overflow locations from combined sewers.

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. If, for any applicant allocated 50 or more points under Schedule 2, there is at least one combined sewer overflow location that is allocated the same or a greater number of points under Schedule 3, the transitional authorization will be granted until December 31, 2040.

Temporary Authorization to Deposit Un-ionized Ammonia[21]

One type of temporary authorization permits the deposit of an effluent that is acutely lethal solely because of the concentration of un-ionized ammonia under specific circumstances, including receiving environment considerations.

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[22]

The other temporary authorization permits the bypass of effluent without or with partial treatment under certain circumstances, such as planned maintenance or construction activities. The requirements are similar to the other authorizations described above. 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.[23]

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 regulatory reporting, data exchange, compliance promotion, and enforcement activities.[24] All reporting requirements must be filed with the appropriate authorization officer as set out in Schedule 1 to the Regulations.[25]

Conclusion

While these new Regulations provide some greater clarity and consistency to the regulation of wastewater under the Fisheries Act, and provides some time to ensure compliance, considerable capital funding will be required to upgrade existing facilities to these requirements.  The question remains – How will these upgrades be funded?


[1] Regulatory Impact Analysis Statement, (2012) C Gaz II, 1695 (vol 146, no 15, 18 July 2012) [Impact Statement].

[2] Impact Statement at 1690-92.

[3] Ibid at 1692-94.

[4] Ibid at 1702 (Table 1 – National ranking of wastewater facilities in Canada).

[5] Regulations, s 2.

[6] Canadian Council of Ministers of the Environment, “Canada-wide Strategy for the Management of Municipal Wastewater Effluent” (17 February 2009) at 5; Impact Statement at 1702 (Table 1 – National ranking of wastewater facilities in Canada).

[7] Ibid, ss 5-6.

[8] Regulations, ss 7-8.

[9] Ibid, s 7(1).

[10] Ibid, ss 9-10.

[11] Ibid, s 9(1).

[12] Ibid, s 10(4).

[13] Ibid, s 10(5).

[14] Ibid, s 11.

[15] Ibid, ss 17, 21-22.

[16] Ibid, ss 18-20.

[17] Ibid, s 19.

[18] Ibid, ss 24-33.

[19] Impact Statement at 1726.

[20] Regulations, s 26(2)

[21] Ibid., ss 34-42.

[22] Ibid., ss 43-47.

[23] Impact Statement at 1726.

[24] Ibid at 1695, 1725.

[25] Regulations, s 1, Schedule 1.

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