Last month, I participated in The Great Lakes Chloride Forum in Toronto. Having previously worked on the road salts file more than a decade ago without seeing any meaningful change in public policy, I was cautiously optimistic about this renewed interest. And, having had a discussion about road salts anchored by WWF Canada at The People’s Great Lakes Summit in May, I was excited to see the conversation continue.
Hosted by the US Consulate General, WWF Canada, Lake Simcoe Region Conservation Authority, and Gowling WLG, in consultation with Smart About Salt Council and Ontario Good Roads Association, the Forum had two goals:
1. Understand and share best practices, encompassing of liability and environmental objectives, in application of road salt that balances public safety and healthy freshwater ecosystems
2. Establish a working group to ensure implementation of best practices and key learnings moving forward
Chloride pollution comes primarily from two sources: the application of road salts to our highways, roads, sidewalks and parking lots, and the use of water softeners. Because the intensity of water softener use is highly localized, addressing road salt use is likely to have a wider impact across the watershed. I was dismayed to learn that in one particular Ontario river chloride loadings in can peak as high as seawater. That’s 167 times the amount that is currently considered safe for freshwater aquatic life and 80 times higher than the drinking water quality objective!
Determinants of chloride pollution from winter maintenance activities are road density and impervious surfaces. As such, this is particularly a problem for southern Ontario.
High amounts of chloride pollution can be corrosive, damaging infrastructure and personal property, including road surfaces, concrete structures, vehicles, clothing, etc. As well, significant impacts on fish and aquatic life can be experienced. If sodium chlorides in particular are being used, there is also the potential create a drinking water risk to people with hypertension.
During a session entitled “The elephant in the room: Liability”, I explained how two environmental law toolboxes have been closed to us on the issue.
First, in 1972, the Ontario government made Regulation 339 which exempts any “road authority” from applying any substance “for the purpose of keeping the highway safe for traffic under conditions of snow or ice” from the Environmental Protection Act. This regulation has never been amended and it predates the Environmental Bill of Rights, 1993, thus precluding any public comment on this exemption.
Second, after road salts were found to be toxic to the environment by Environment Canada and Health Canada in 2001, they were not added to the List of Toxic Substances in Schedule 1 under the Canadian Environmental Protection Act, 1999. Without this listing, further tools that could be applied to curb road salt use are unavailable. Instead, a voluntary Code of Practice was put in place with limited application. It currently applies only to public road authorities applying road salts to public roads. As well, it only applies to those public road authorities that: (i) are using more than 500 tonnes per year or (ii) have vulnerable ecosystems in their area. Those adhering to the Code of Practice are encouraged to keep records and submit information to the federal government. However, there is no legal tool available to the federal government to enforce the Code of Practice.
With this backdrop of inadequate legal tools, the elephant in the room is the legal liability that applies to municipal, public/provincial, and private winter maintenance activities. Counsel from Gowlings described, among other things, the “reasonableness standard” that, in a nutshell, requires someone engaged in winter maintenance activities to have a system in place and to demonstrate that the system was used. It does not require the elimination of all hazards (e.g., providing continuously bare pavement).
Perceptions and expectations have got us to a place where road salts are overused; perception of what needs to be done to avoid being sued (e.g., with a slip and fall claim); and expectations that one should be able to wear dress shoes and drive on all-season tires, with bare pavements, regardless of the time of year. The consequences, enhanced by a lack of environmental protections, are falling on fish and aquatic life.
Other jurisdictions have addressed the issues at play. For example, New Hampshire has made use of their water protection laws and have introduced a limited liability regime.
There are options for solving the problem, particularly when all sectors can come together and have that difficult conversation.
The participants agreed that there’s a desire to continue working together to find solutions. Canadian Environmental Law Association is committed to working collaboratively to meet the challenge of addressing chloride pollution in the Great Lakes – St Lawrence River Basin.