Did Hamilton’s latest sewage spill break the law?

The province is once again investigating whether Hamilton broke the law with a sewage spill - this time, after a repair mixup allowed 50 homes to flush directly in the harbour for 26 years.

The new investigation - and the theoretical threat of pricey fines - comes as the city tries to settle charges laid in 2020 related to the infamous 24-billion-litre Sewergate' spill into Chedoke Creek.

Hamilton announced the latest spill Nov. 22 after finding a hole in a sanitary sewer thought to have been made in error in 1996. The punctured pipe under Wentworth Street North allowed sewage to flow directly into the industrial harbour via a storm drain.

The city fixed the pipe - but not before 337 million litres of sewage escaped over a quarter-century.

Hamilton already faced a provincially ordered audit" of its sewer system.

Separately, the spill has now been referred to the investigations and enforcement branch of the Ministry of Environment, Conservation and Parks, said spokesperson Lindsay Davidson this week.

The new legal investigation, which is separate from any ordered audits or cleanups, will probe the cause of the spill and whether it breached the Environmental Protection Act or Ontario Water Resources Act.

The city is aware of the investigation and will participate and co-operate in any way we are asked," said spokesperson Matthew Grant.

The investigation could take up to two years and there is no guarantee charges will be laid.

But Hamilton was previously charged under both acts for discharging raw sewage into a waterway" during the four-year leak into Chedoke Creek between 2014 and 2018.

We don't yet know what kind of penalty - if any - city taxpayers face over Sewergate, because those charges remain before the courts two years later.

Ontario pollution laws allow for very significant penalties" in theory, said veteran environmental lawyer Eric Gillespie.

In some cases fines can be levied for each date an offence occurs, with a range between $25,000 and $6 million for serious charges against corporations. The courts can also take into account the impact and seriousness of the pollution and whether such violations have happened before.

That raises the theoretical prospect of millions of dollars in fines against Hamilton for a four-year spill - never mind a quarter-century leak.

But in practice, penalties rarely approach the ranges that could be applied," said Gillespie, who also added prosecutors have very broad discretion" to negotiate plea deals.

Former environmental commissioner and prosecutor Dianne Saxe once told The Spectator up to 85 per centd via such settlements.

In 2008, the City of Ottawa agreed to a plea deal that resulted in a $565,000 fine for a serious and initially unreported sewage spill - at the time, the largest fine ever slapped on a municipality for such pollution.

That spill dumped 764-million litres of sewage into the Ottawa River - more than Hamilton's latest long-term leak, but far less than the massive Chedoke spill. At the time, Ottawa also agreed to spend millions - alongside the province and federal government - improving its ability to capture sewage overflows.

Hamilton is actually trying to negotiate a resolution for charges related to two separate environmental incidents: the Sewergate spill and a memorably stinky compost plant in 2018.

Matthew Van Dongen is a transportation and environment reporter at The Spectator. mvandongen@thespec.com