Violations of a municipal sewer by-law are normally punished by prosecution. This requires a municipality to prove, beyond a reasonable doubt, that a violation has occurred. In addition, the defendant has an opportunity to escape punishment by proving that it used due diligence. The maximum fines are set by by-law, and are often relatively modest; the judge or justice of the peace has to temper the potential fine to the circumstances of the offence and of the offender.
None of this applies to the new rules now being enforced in the City of Toronto. Last year, the City established a two-tier water rate, in the hope of keeping some industrial employment in the city. The new system provides industrial water users with a 20% discount, as long as they comply with the sewer by-law. However, to the surprise of many industries, the city has decided to interpret “compliance” as no exceedence of any discharge limit in any grab sample in a calendar year.
In this approach, due diligence is irrelevant. Knowledge or means of knowledge of any problem is irrelevant. The reason for any problem is irrelevant. There is no appeal. And the consequence of being found out of “compliance”, even once, for any parameter, is loss of the water rebate for the entire year.
At its meeting number 27, December 1-3, 2008, Toronto City Council adopted a motion that:
The General Manager, Toronto Water review all participants in the reduced water rate
program to ensure that they met, as at January 1, 2008, and continue to meet, conditions
required to receive the reduced water rate. In circumstances where there is
non-compliance, immediate action be taken including the retroactive billing of
previously reduced rates.
This is a huge financial penalty for water- dependent industries, sometimes $100,000 or more, and Council has directed that it be imposed retroactively. On the other hand, there is no further financial penalty after the first exceedence; good industries with a single minor problem are punished to exactly the same extent as persistent defiant polluters.
The rebate is so large that it provides a powerful incentive for many industries to attempt compliance. Response to the new policy has been immediate, and includes an upsurge in demands to enter into compliance agreements while problems are resolved.
However, zero tolerance is rarely an effective enforcement strategy in the long run. How many industries will be able to achieve “compliance” as defined in this way, particularly if their effluent is frequently sampled? How much effort will they put into trying for perfect compliance and is it economically rational to do so? How will a zero-tolerance policy affect the City’s goal of keeping industrial employment, especially in these extraordinarily difficult economic times?