Implementation of British Columbia’s Pollution Control Act, 1967, in the lower Fraser River

Over the past two decades, pollution in the lower Fraser River of British Columbia has become an increasing concern of Lower Mainland residents. The Fraser is B.C.'s largest and most historic river, and supports Pacific salmon runs of some international significance and much local interest. The public generally believes that the river is already or soon will be badly polluted, and there is widespread suspicion that the government's lack of enforcement of its own anti-pollution laws is to blame. B.C.'s “Pollution Control Act”, 1967, forms the basis of the province's institutional arrangements for regulating the discharge of pollutants into provincial waters. The Act and regulations pursuant to it outline a permit system and a set of related procedures that together are the administrative framework of B.C.'s pollution control process. The Act also appoints a chief administrator—the Director of Pollution Control—and a semi-autonomous policy-setting and appeal body--the Pollution Control Board. The Board, the Director, and the Director's staff (the Waste Management Branch) have largely been responsible for implementing the provisions of the Act and Cabinet directives relating to it. The purpose of this study was to conduct an indepenent evaluation of how the province's pollution control process has operated in the Lower Fraser. The evaluation has several stages: 1) Outlining what I have termed B.C.'s "official" or "formal" pollution control process; that is, the one formally set up by the Act and further fashioned by high-level officials. Three stages were identified: setting pollution control objectives, issuing pollution control permits, and monitoring and enforcement; 2) Sketching the basic steps of a model for controlling point-source pollution in the Lower Fraser. B.C.'s formal process is then compared with this model process; 3) Describing how B.C.'s pollution control process actually has worked in the case of the Lower Fraser. This is accomplished primarily by referring to 13 examples that were chosen from Waste Management Branch files and to information presented in a number of Fraser River Estuary Study water quality reports; 4) Evaluation of the actual process according to three criteria. The first measures how closely practice is adhering to formal policy. The second assesses the generation and use of information by the actual process, while the third evaluates how well it has accommodated affected interests. Objectives for pollution control were set by the Board on the basis of "technical" information assembled during public inquiries. The Objectives serve as targets, not binding standards, and heavily emphasize the control of effluent quality over the maintenance of receiving water quality. Inquiries only partially generated the information necessary to fully understand the consequences of alternative levels of pollution control. The intended flexibility in applying the Objectives to specific cases and the stated intent to review them at periodic intervals are appropriate responses given this ignorance. The narrow terms of reference of inquiries and their formal settings discouraged effective participation by the public. Several possible means of improving information, accountability, and public participation are suggested. All waste dischargers in B.C. require permits signed by the Director. The permit stipulates a number of conditions to which the discharger must conform. Objectives are to be used as "minimum objectives" in setting permit conditions, and this was in part true. The Act's stipulations for circulating a permit application to other agencies for comment and advertising it publicly were well followed. In cases where another agency objected to an application, more often than not the objection was considered "unreasonable" by the Branch. The applicant and the Branch engaged in sometimes protracted negotiation in the setting of permit terms. Some but not all of the information needed to meaningfully assess an application came to light in the course of its evaluation by the Branch. The information typically made available to the public was poor in this regard. Monitoring is to be carried on both by the Branch and permittees. Roughly half of the effluent monitoring required of permittees is actually being conducted, and some permittees need to constantly be "reminded" of this responsibility. Neither zone of influence monitoring conducted in the vicinity of outfalls, or general water quality monitoring conducted at selected stations in the river, both of which are the Branch's responsibility, are being carried out as frequently as they should be, probably because of funding limitations. The Branch's philosophy towards enforcement over the past decade has been to negotiate compliance is as cooperative a manner as possible rather than to threaten or use prosecution frequently. This approach is regarded as more realistic and even ultimately more successful at reducing pollution over the long term by experienced Branch engineers. On one hand, the widespread presence of violations tends to discredit this view, but on the other, recognizable progress has been made in reducing some discharges with the cooperative approach. Two practical considerations probably also account for the minimal use of prosecution: a desire to maintain tolerable working relationships between Branch personnel and permittees, and the fact that ligitation is so time-consuming and uncertain. The record of prosecutions that have been brought under the Act is not an impressive one, but experience from the United States indicates that this is not atypical. The fact that recent policy changes within the Ministry of Environment have led to a renewed interest in the use of prosecution as a deterrent makes this observation timely. A number of recommendations are made that would strengthen the pollution control process in B.C.

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