Ontario Environment Ministry Argues Records about Algoma Steel Pollution Not about 'Public Health or Safety'
It’s been more than two years since I requested more information from Ontario’s Ministry of the Environment, Conservation and Parks (MECP).
They’re the environmental regulator that monitors industry, assesses compliance, and enforces regulations.
In April of 2022, I submitted this freedom of information request:
Any and all data, analysis, and/or research related to the human health and environmental effects (cumulative or otherwise) as a result of the exceedances of province-wide pollutant limits (i.e., site specific standards) at Essar / Algoma Steel [2000-2022].
The request is an effort to answer some questions that arose in my previous research and writing.
Image Credit: Wikimedia Commons (Pawel Wozniak)
In order to keep Ontarians safe, the government has established general standards for pollutants that are linked to negative health outcomes.
Those standards are based on risk-based assessments, which calculate an acceptable level of exposure to individual pollutants.
If a facility can’t meet those standards for financial or technical reasons, they can apply for a regulatory exemption.
Ontario’s regulatory regime raises an important question: If the government has risk-based data and analysis to set general pollution standards, does it also have risk-based data and analysis about facilities that exceed those limits?
For example, Algoma Steel previously applied for a regulatory exemption that’s 530 times the Ontario standard for benzo(a)pyrene, a well-known carcinogen, and it routinely violates provincial air quality standards.
The more I kept digging to find out what type of health effects these emissions have on our local population, the more I realized that this type of information was incredibly difficult to get (and sometimes low quality).
Even if exposure to Algoma Steel’s air pollution raises your cancer risk, neither the company nor the ministry will easily provide you with information quantifying that risk.
The MECP and I subsequently narrowed the scope of my request, to expedite the search for responsive records.
The amended request reads:
Toxicological and epidemiological research that buttresses the previous MECP approvals of site specific standards at Algoma Steel, namely 1) benzene, 2) benzo(a)pyrene, 3) particulate.
Data, evidence, analysis etc. from MECP related to exceedances
Please note: I am not seeking records related to the applications/approvals that are still pending.
Clarified Time Frame: January 1, 2015 to April 8, 2022.
The MECP located records in response to the request.
FOI legislation is based on a ‘user pay’ principle, which means that institutions subject to the legislation can ask for fees to cover the time and resources required to respond to requests.
Although fees are sometimes prohibitive, it’s possible that requests can have a significant burden on the operation of an institution.
To make things fair, institutions can ask requesters to pay $30 an hour for the work required to respond to requests.
The MECP asked me for approximately $1,800 to release the requested records.
A requester is typically asked to submit a deposit (50%) before an institution will begin their processing.
However, requesters can ask for a ‘fee waiver’ if they’re experiencing financial hardship and/or the records are related to a public health or safety concern.
Since the records are clearly related to public health or safety, I requested a fee waiver.
The MECP conducts risk-based assessments of industrial air pollution for the obvious objective of protecting the public.
Nonetheless, the MECP denied my request for a fee waiver.
I then decided to appeal that denial to Ontario’s Information and Privacy Commissioner (IPC).
In December of 2022, the MECP revised its fee estimate, asking instead for just under $1,000 in total (and a 50% deposit to get the ball rolling).
Both the MECP and I had the opportunity to submit representations to the IPC to assist the IPC Tribunal adjudicator in making their decision.
Astonishingly, the MECP argued that the requested records are not related to public health or safety.
In its words: “The Ministry does not acknowledge that there is any public health or safety issue present in relation to the requester/appellant’s request for these records.”
The MECP says that it’s identified around 8,830 pages of responsive records, and the revised fee underestimates (by 25%) the time required for the review and preparation of the records before release.
So, the fulcrum of the dispute is whether it’s fair and equitable to waive the fees (some or all), if there’s a strong enough connection to public health or safety.
The MECP says I should pay up.
I say that the records should already be publicly available due to their importance and relation to public health or safety.
It gets better though.
The MECP also argues that the fee waiver shouldn’t be granted because I’ve *gasp* allegedly been mean to Algoma Steel:
[T]he Ministry is wary of the requester’s publicized opinion of the company of Algoma Steel. The requester is known to be and/or directly employed by Canadian universities as an academic, however, the Ministry has also found numerous articles authored by the requester, (as a freelance journalist and/or editorialist), that are markedly either critical of and/or biased against Algoma Steel. The Ministry is highly skeptical that the waiving of any fees for this request are in the public interest and are more likely to be in the personal interest of the requester.
The ministry specifically cites two things that I’ve written about local air pollution.
To summarize, a government ministry is arguing (with a straight face) that records related to air pollution should be expensive if it doesn’t like the questions that you ask and the things that you write.
But should the government pick and choose to whom it releases information based on alignment with its own preferences?
And exactly whose interests are the MECP supposed to be representing?
Are they working to protect the human health and environment of Ontarians?
Or are they working to protect Algoma Steel from public scrutiny?
The past few years have seen spills to the St. Mary’s River, collapsing infrastructure, concerns about deteriorating safety, and a deceased worker.
Some of these incidents have led to formal charges.
The arguments from the MECP aren’t just a poor attempt at trolling me.
They’re an insult to all Ontarians, who deserve to know that their government is protecting them.
A decision from the IPC Tribunal is expected this spring.