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Risk Management

Risk Management Advisories

ENVIRONMENTAL ISSUES

DUTIES AND RESPONSIBILITIES OF SCHOOL BOARD TRUSTEES AND DIRECTORS
SUMMARY OF ENVIRONMENTAL STATUTES, REGULATIONS AND BY-LAWS

The movement towards a cleaner environment continues to gain strength in all aspects of our society. Various environmental protection acts and regulations are now in place and stricter enforcement of their provisions and terms is evident.

The purpose of this bulletin is to briefly point out the duties and responsibilities of school board trustees and to provide a summary of many of the environmental statutes, regulations and by-laws.

DUTIES AND RESPONSIBILITIES OF SCHOOL BOARD TRUSTEES AND DIRECTORS

With respect to environmental concerns, one may feel that a school board has little exposure. However, since 1987, some of the largest claims OSBIE has paid out have involved environmental damage, and one claim alone exceeded $10 Million.

In 2002, OSBIE released the Underground Storage Tank (UST) risk management program that identified tanks that had reached the end of their life span and either required removal or upgrade to current regulations. As the result of this program, which was supported by regulations under the Technical Standards and Safety Authority (TSSA), a large number of tanks were removed or upgraded to code, and all remaining tanks are being managed according to TSSA regulations. This has reduced the number of active tanks (exposures) by approximately 71% to date, with the remaining tanks being better managed and monitored for leakage.

Even with this reduction in loss profile, the risk of a large environmental claim still prevails, and boards should continue to take steps to manage this risk.

Here are some steps that school boards might use to develop management systems to reduce their liability risk. It is important that trustees and board officials support a sound risk management policy in these and other areas. The school board's risk manager is a vital element in the entire process.

An environmental management program should include the following:

The trustees and directors should develop and approve a written environmental policy stating the commitment of the school board to ensure that its activities do not result in unacceptable effects on the environment.
It is preferable to have an environmental committee of the board of trustees with a specific mandate (developed by the committee in conjunction with management and approved by the full board) to monitor environmental protection. The policies and procedures (including continuing education and training and an environmental chart which sets out who is responsible for what) developed as part of that mandate should be brought to the attention of all employees.
An environmental manager should be appointed. The environmental manager is the key person in ensuring that the operations people do what they are supposed to do. It is essential, therefore, that this person report directly to the Director of Education.
One of the environmental manager's jobs should be to report, at least semi-annually, to all trustees on the principal areas of concern.
Discussions relating to environmental matters should take place regularly not only in the environmental committee, but also at the board level. Minutes of the meetings should reflect these discussions.

Acting as a trustee or director of education will always involve some risk. If steps such as these are followed, that risk will be lessened. There must be an awareness of environmental activities at the board of trustees level, not just at management level.

Sound risk management is the answer. While insurance may play a part in a risk management program, it may provide only a partial solution. For example, insurance does not pay fines or provide protection against legal proceedings through which a trustee or school board employee is found to be in violation of an environmental statute, regulation or by-law.

A good starting point is to recognize that the objective is to protect the environment, not some bare legal minimum.

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SUMMARY OF ENVIRONMENTAL STATUTES, REGULATIONS AND BY-LAWS

Presented here is a summary of most of the important provisions of the environmental legislation in Ontario at the provincial and municipal levels, as it applies to facilities owned and operated by school boards.

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1. ENVIRONMENTAL PROTECTION ACT (EPA)

(a) Certificates of Approval

Section 8.1 addresses the requirements with respect to obtaining approval from the Ministry of the Environment for facilities which discharge contaminants such as air emissions from ventilation systems and stacks, etc. Reference should also be made to Regulation 308 under the EPA dealing with air pollution, and prescribing the allowable limits for airborne contaminants at prescribed points of impingement.

b) WASTE MANAGEMENT

Most schools are generators of waste which are solids such as garbage, or liquids such as spent solvents, chemicals and waste oils, etc. Reference should be made to the following sections of the EPA:

Section 40
This Section states:
No person shall use any facilities or equipment for the storage, handling, treatment, collection, transportation, processing or disposal of waste that is not part of a waste management system for which a certificate of approval or a provisional certificate of approval has been issued and except in accordance with the terms and conditions of such certificate.

Regulation 309
This Regulation addresses the requirements with respect to waste management. This Regulation and the Registration Guidance Manual for Generators of Liquid, Industrial and Hazardous Waste are important reference materials for school boards to use with respect to the disposal of their wastes.

Section 40a(1)
This important poison with respect to the ownership of waste states:
The ownership of waste that is accepted at a waste disposal site by the operator of the site is transferred to the operator upon acceptance.

c) PRIVATE SEWAGE SYSTEMS

For school boards which are not serviced by a municipal sewage system but utilize their own "private" system such as a septic tank, Part VII of the EPA will apply. Under Section 64 of the Act, there are provisions with respect to obtaining a certificate of approval for such systems, and Section 65 identifies the information to be provided in order to obtain a certificate.

d) SPILLS

Part IX of the EPA, commonly referred to as the Spills Bill, prescribes the actions required of "an owner of the pollutant" in the event of a spill. Particular reference should be made to Sections 80 and 81 of the Act which address requirements with respect to notification and duty to act.

e) BOILERS REGULATION

Under Regulation 16/86, there are restrictions with respect to discharges from stacks and the sulphur content of fuel oil, or coal where the sulphur content should not exceed one per cent.

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2. ONTARIO WATER RESOURCES (OWRA)

a) WATER SUPPLIES

If a school board has the facility which has its own independent water supply system, i.e. not connected to a municipal system, a permit under Section 20 of the OWRA is required. Further, under Section 22, a permit to construct a well is also required.

If a school board has or wishes to build a water treatment plant, then approval under Section 23 of the OWRA would be required, since the plant and any associated piping systems would be deemed to be a "water works".

b) SEWAGE DISPOSAL

In the event that a Board has or wishes to build a sewage disposal system which is not a private system as defined under Part VII of the EPA, or if the school board did not have access to a municipal sewage system, then approval under Section 24 of the OWRA would be required for the sewage works system which the school board wishes to undertake, and a certificate of approval for the works would be required.

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3. GASOLINE HANDLING ACT AND GASOLINE HANDLING CODE

For school boards which have above ground or underground storage tanks to store their vehicle fuels, the Gasoline Handling Act and the Gasoline Handling Code will apply. It is not expected that there will be many instances of above ground gasoline storage tanks, but any such installations would require compliance with Section 6 of the Code. For underground gasoline storage tanks, Section 5 of the Code will apply. Particular attention should be given to Subsections on Acceptable Tanks, Upgrading of Tanks, Installation, Testing and Certification and Used Oil Tanks.

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4. ENERGY ACT

For school boards which have tanks used to store fuels for heating purposes, the Energy Act and Regulation 288 (Fuel OilCode) will apply. Usually these storage tanks are underground facilities. Reference should be made to Section 3.(1) of the Code with respect to actions to be taken in the event of a suspected leak and to Section 5 which requires removal of the tank and any soil contaminated by leaking oil, in the event that the tank will not be used, or where it has not been used for a period of two years.

Any tank not in use needs to be emptied of any fuels. If not emptied and not regularly tested, it is just a matter of time before a spill occurs.

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5. PESTICIDES ACT

School boards which store and apply pesticides will be required to comply with Pesticides Act and Regulation 751 made under the Act.

Under Sections 5 and 7 of the Act, there are provisions which relate to the obtaining of a permit or licences for users of pesticides. Sections 5, 6 and 7 of the Regulation prescribe the requirements with respect to obtaining licences. Section 72 (1) of the Regulation provides for certain exemptions from Section 5 (1) of the Act with respect to certain classes of pesticides.

Sections 98 and 99 of the Regulation identify the requirements with respect to storage of pesticides, and the control of entry of people into storage areas.

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6. ENVIRONMENTAL ASSESSMENT ACT

Under Section 5 (2) (6) of Regulation 205 made under the Environmental Assessment Act, school boards are exempt from the Act for "an undertaking by a school board within the meaning of the Education Act". This exemption can be expected to apply to schools, but whether facilities, such as service centres, would qualify for the exemption would require a review of the Education Act and the intent of the exemption provision under Regulation 205. As a precautionary measure, school boards should obtain a legal opinion on this question prior to proceeding with any facility which is not a school.

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7. MUNICIPAL BY-LAWS

a) Sanitary and Storm Sewage

Schools and board facilities which discharge sanitary sewage to a municipal sanitary sewage system will be required to comply with the requirements of the local municipal by-law which will regulate the quality, i.e. concentrations of various contaminants of the sewage, being discharged into the municipal system. Most municipalities also will have a by-law which regulates the quality of storm water discharged into the storm drainage systems. In some cases, the two by-laws may be in a common document, while in others, such as some of the two tier regional municipalities, by-laws may be made and enforced by different municipalities. Each school board should be familiar with the by-law(s) which apply and take whatever measures are needed for compliance.

b) Solid Waste Disposal

Municipalities will have a by-law which will regulate the materials that can be accepted as disposal of garbage. Most by-laws contain prohibitions such as liquid industrial waste, or wastes, for which there is a recycling program in place in the municipality. Each school board should be familiar with the by-law(s) which apply and take whatever measures are needed for compliance. In fact, it behooves a school board to be a leader in recycling programs.

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8. ASBESTOS MANAGEMENT PROGRAMS

These programs are couched in Ontario Regulation 838 entitled:

Regulations Respecting Asbestos on Construction Projects and in Buildings and Repair Operations

School boards are subject to the requirements of this regulation and compliance is most important in view of the potential injuries that could result from exposure to asbestos.

The "Guide to Asbestos on Constructions Regulations" provides a plain language interpretation of the Regulation.

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9. FULE OIL CODE ADOPTION DOCUMENT (TSSA – effective October, 2001) and Ontario regulation 213/01

The Fuel Oil Code Adoption Document enacts regulation to comply with the provisions of CSA B139 Standard (Installation Code for Oil Burning Equipment) as they apply to the operation of Underground Storage Tanks. It also requires compliance with Ontario Regulation 213/01 which defines approved Underground Storage Tank equipment, licensing requirements, servicing and fuel supply regulations. (NOTE: These documents are included as Appendices to the OSBIE Underground Storage Tank Risk Management Manual)

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10. REFERENCE MATERIALS

Here is a list of useful reference materials for environmental co-ordinators which are obtainable from either a Government Book Store or via internet.

Ontario Environmental Protection Act

Regulation 308 - Air Pollution

Regulation 309

- General
- Waste Management
- Registration Guidance Manual for Generators Liquid Industrial & Hazardous Waste

Spills Response Program

Ontario Water Resources Act

Pesticides Act

- Regulation 751 and Schedules
- Pesticides Safety Handbook

Occupational Health & Safety Act

- Industrial Establishment Regulation 692

Gasoline Handling Act

- Gasoline Handling Code, Regulation 439

Energy Act

- Fuel Oil Code, Regulation 288

Asbestos Management

- Regulations Respecting Asbestos on Construction

Projects and in Buildings and Repair Operations - Guide to Asbestos on Construction Regulations.

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11. ENVIRONMENTAL CO-ORDINATOR

Because of the broad scope and complexity of legislation relating to environmental controls of school board facilities with respect to their construction and operation, the responsibility and management of environmental issues should ideally be in the hands of one person who would be responsible for all environmental affairs of the school board. It is becoming increasingly common for organizations to appoint an Environmental Co-ordinator whose duties are to advise and oversee proper environmental management, and statutory compliance of the facilities owned and operated by the school board.

In summary, the above is just a sample of the many Acts, Regulations, Codes and By-laws to which a school board is subject. The purpose here is to highlight many of those pertaining to environmental protection in particular.

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(REVISED 2010) E&OB

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