Canadian Environmental Protection Act annual report 2016 to 2017: chapter 4

4 Compliance promotion and enforcement

Compliance promotion relates to the planned activities that are undertaken to increase awareness, understanding and compliance with the law and its regulations. Through these activities, compliance promotion officers provide information to regulated communities on what is required to comply with the law, the benefits of compliance and the consequences of non-compliance. The goal is to achieve desired environmental results more efficiently through education and awareness-building, which helps mitigate consequential enforcement actions.

CEPA provides enforcement officers with a wide range of powers to enforce the act, including the powers of a peace officer. Enforcement officers can carry out inspections to verify compliance with the act; enter premises, open containers, examine contents and take samples; conduct tests and measurements; obtain access to information (including data stored on computers); stop and detain conveyances; search, seize and detain items related to the enforcement of the act; secure inspection warrants to enter and inspect premises that are locked and/or abandoned or where entry has been refused; seek search warrants; and arrest offenders.

Various enforcement measures are available to respond to alleged violations. Many are designed to achieve compliance without resorting to a formalized judicial process such as prosecutions or seeking an injunction. These measures include directions, tickets, prohibition orders, recall orders, detention orders for ships, and environmental protection compliance orders. In addition, administrative monetary penalties (AMPs) under the Environmental Violations Administrative Monetary Penalties Act are now available for enforcement officers to respond to designated violations of Parts 7 and 9 of CEPA. AMPs are designed to create a financial disincentive to non-compliance with designated legislative requirements and to provide an alternative to other enforcement measures, which may not be effective or available in all situations. The Environmental Violations Administrative Monetary Penalties Regulations which came into force on June 2, 2017, complete the AMPs regime by establishing key details of this regime.

Measures to compel a return to compliance through court action include injunctions to stop or prevent a violation and prosecutions. In addition, once charges have been laid, environmental protection alternative measures agreements may be negotiated with the alleged offender in lieu of prosecuting the charge.

Enforcement activities are conducted in accordance with the compliance and enforcement policy for CEPA (1999).

4.1 Compliance promotion priorities

Each year, ECCC develops an annual list of priorities for delivery of compliance promotion activities on issues such as chemical management, air pollutants, and greenhouse gas emissions. Factors that influence the identification of priority activities include the recent publication of new or amended regulatory and non-regulatory instruments, new requirements coming into force, level of compliance, and need to maintain awareness, understanding, or compliance for specific requirements. The Department continues to focus compliance promotion efforts on regulatory and non-regulatory instruments that target geographically dispersed, hard-to-reach, small and medium-sized enterprises, Indigenous peoples, and federal departments. Resources are aligned with these identified compliance promotion priorities.

In 2016–2017, compliance promotion activities were carried out for the following regulatory and non-regulatory CEPA instruments:

ECCC also worked on planning the implementation for 20 new or amended regulatory and non-regulatory instruments published in the Canada Gazette, Parts I and II.

4.2 Promotion activities

Multiple approaches were used to reach the regulated communities, including workshops, information sessions, presentations, information package emails/mail-outs, articles, phone calls, and social media platforms. Many of these activities were carried out in collaboration with provincial and territorial governments, as well as non-governmental organizations and associations.

For instance, the Quebec region developed a strong working relationship with the Association pour le développement et l’innovation en chimie au Québec which provides an opportunity for each party to focus efforts on areas of strength and expertise. An article regarding the Prohibition of Certain Toxic Substances Regulations, 2012 was published in the November 2016 issue of The Canadian Journal of Chemical Engineering as a first step in the development and implementation of guidance for the regulated community. These, and many other successful activities, have helped to increase the awareness and contribute to the understanding of and compliance with ECCC’s regulatory and non-regulatory instruments.

In addition, as communication efficiency and accuracy is important when reaching the regulated community, extra efforts were made this fiscal year to improve the data quality of the Department’s compliance promotion activity database. In 2016–2017 alone, the Department added over 4000 facilities and their contacts as well as updated an additional 120,000 facilities and their contacts in the database.

Responding to inquiries

Compliance promotion officers continued to raise awareness and understanding of the Department’s regulatory and non-regulatory instruments by responding to over 3200 inquiries and feedback on the 13 compliance promotion priority regulatory and non-regulatory instruments listed in section 4.1. Most inquiries and feedback were received by email, while the remainder came by fax, letter and telephone.

Promoting compliance to Indigenous people and within the federal government

In 2016–2017, ECCC continued to work closely with Indigenous peoples and the federal government by delivering individual communications and individual-instrument and multi-instrument awareness activities for compliance promotion priority regulatory and non-regulatory instruments. Workshops, tradeshows, and conferences were delivered to Indigenous Peoples throughout Canada and federal government departments to increase awareness of their obligations to comply with instruments under CEPA. These activities were delivered for compliance promotion priority instruments including the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, Gasoline and Gasoline Blend Dispensing Flow Rate Regulations, PCB Regulations, and Federal Halocarbon Regulations, 2003.

Promoting compliance with transportation sector emission regulations

There are six emission regulations covering on-and off-road vehicles and engines that apply to manufacturers in Canada and to persons importing prescribed products into Canada. There are also nine regulations related to fuels that apply to the manufacture, importation and sale of fuel in Canada. During 2016–2017, ECCC responded to almost 1000 inquiries regarding the vehicles and engines regulations and almost 400 regarding the fuels regulations. Additionally, mail outs are regularly used to remind regulatees of forthcoming reporting deadlines. Supplemental guidance was posted to inform regulatees of the process related to informing the Department and owners of an emissions-related defect / recall. An annual compliance promotion information package was distributed to all regulated parties regarding the fuels regulations.

Promoting compliance with small and medium-sized enterprises

Multi-instrument compliance-promotion activities provide an opportunity for regulatees to obtain information regarding legislation and regulatory and non-regulatory instruments to enable them to act environmentally responsible and avoid enforcement actions. Regulatees also benefit from the knowledge and experience of compliance promotion officers who visit their operations. In 2016–2017, ECCC conducted a total of seven mail out campaigns and reached small and medium-sized enterprises through numerous individual and multi-instrument awareness activities for the 13 compliance promotion priority regulatory and non-regulatory instruments listed in section 4.1.

4.3 Enforcement priorities

Each year, ECCC develops a national enforcement plan (NEP) that sets out the enforcement activities to be carried out in that fiscal year, including activities to address non-compliance with CEPA. Factors that influence the identification of priority activities include the risk to the environment and human health represented by the regulated substance or activity, governmental and departmental priorities, suspected non-compliance, recent publication of new and amended regulations and domestic and international commitments and obligations.

In 2016–2017, the NEP gave priority to the following CEPA instruments:

In addition to the planned inspections carried out under the NEP, enforcement activities under CEPA also include a large number of unplanned inspections resulting from responses to complaints, notifications from partners, intelligence or departmental referrals, reported spills and incidents, or other information. In addition, a number of regulations are identified for focus by specific regions. The focus placed on regulations in each region is influenced by a number of factors, including geography, the prevalence of the regulated sectors, regional issues or concerns, and provincial and territorial environmental sensitivities.  

4.4 Enforcement activities

Enforcement activities undertaken between April 1, 2016, and March 31, 2017 are summarized in the following four tables.

• Table 19 provides the number of on-site and off-site inspections for each regulation
• Table 20 provides the breakdown of investigations for each regulation for which at least one investigation occurred and/or closed
• Table 21 provides the total number of enforcement measures resulting from inspections and investigations that were imposed for each regulation
• Table 22 provides the number of prosecutions for each regulation

4.4.1 Inspections

Inspections are defined as the active process of gathering information to verify compliance with legislation. This may include site visits, examining substances, products or containers, taking samples, and analyzing records. An on-site inspection involves visiting a site, a border crossing, an airport or a port of entry, to conduct any activity/operation/analysis required to verify the regulatee’s compliance with a regulation or permit. An off-site inspection is normally undertaken at the officer’s place of work or in another location that is not at the regulated site and is usually limited to documentation verification.

Table 19 outlines the number of inspections under CEPA for fiscal year 2016–2017. The total number of inspections relates to the number of regulatees inspected for compliance using the end date of the inspection for the reference period.

^l Only those regulations under which an inspection occurred during the time period are listed in this table.

4.4.2 Investigations

An investigation involves gathering, from a variety of sources, evidence and information relevant to a suspected violation. An enforcement officer will conduct an investigation when he or she has reasonable grounds to believe that an offence has been committed under the act and authorities have determined that prosecution may be the appropriate enforcement action.

Table 20 describes the number of investigations under CEPA for fiscal year 2016–2017.

^m Investigations are tabulated by the number of investigation files, based on the start or end date of the investigation. One investigation may be counted under one or more regulations, therefore the data at the regulation level may not add up to the total at the legislative level.

4.4.3 Enforcement measures

The following responses are available to address alleged violations of CEPA and its regulations:

• warnings to bring an alleged violation to the attention of an alleged offender, so that he or she can return to compliance, if applicable
• directions to address or to prevent releases of regulated substances
• tickets for certain offences, such as failure to submit written reports
• various types of orders, including
  • environmental protection compliance orders (EPCOs) – to stop an ongoing violation from continuing, to prevent a violation from occurring or to require action to be taken
  • prohibition orders – to prohibit activity involving a substance new to Canadian commerce
  • recall orders – to recall regulated substances or products from the marketplace
  • detention orders for ships
• injunctions
• prosecution at the discretion of a Crown prosecutor
• environmental protection alternative measures

Table 21 sets out the number of enforcement measures under CEPA for fiscal year 2016–2017. Enforcement measures for certain regulations are comparatively high for several reasons, including the following:

In 2016–2017, there were no injunctions or ministerial orders (recall orders and prohibition orders); therefore, these columns do not appear.

ⁿ Directions, written warnings, and EPCOs are tabulated by infractions, which are found at the section, subsection or paragraph level of a regulation. For example, if the outcome of an inspection is the issuance of a written warning that relates to three sections of a given regulation, the number of written warnings is three, even if a single letter was sent to the regulatee.

^o The number of subjects involved in EPCOs is represented by the number of regulatees issued EPCOs, regardless of the number of sections. For example, if one regulatee was issued an EPCO for three sections of the PCB Regulations, the number of subjects involved is one.

4.5 Prosecutions, tickets and EPAMs

Prosecutions

For reporting purposes, prosecutions are all instances in which charges were laid against a person (individual, company, or government department). The decision to prosecute ultimately rests with the Director of Public Prosecution (DPP) of Canada or her delegated agent. While reviewing the data, it should be noted that prosecutions often continue through multiple fiscal years, so there may be more counts tabulated during a particular year than actual charges laid.

Tickets

Tickets can be issued under CEPA, usually where there is minimal or no threat to the environment or human health. Where an offence is designated as ticketable, enforcement officers will issue a ticket, unless they have determined that, in accordance with the criteria of the Compliance and Enforcement Policy for the Canadian Environmental Protection Act, 1999, another enforcement measure is the appropriate response.

EPAMs

An Environmental Protection Alternative Measure (EPAM) is an agreement that is negotiated in order to return an alleged violator to compliance with CEPA. It can be used only after a charge has been laid and before the matter goes to trial as an alternative measure to prosecution for an alleged violation of the act.

Table 22 outlines the number of prosecutions, tickets, and EPAMs under CEPA for fiscal year 2016–2017.

^p Prosecuted subjects are the number of subjects charged, where the charge date falls within the reporting period. This means that the number of prosecutions launched is counted, not the number of prosecutions concluded in the reporting year. For example, if a prosecution resulted in a conviction in February 2017 but charges were laid in January 2016, it would not be counted in the columns relating to charges laid. As well, prosecuted subjects are counted by the number of parties charged. This means that if one case resulted in the prosecution of two different subjects, the number reported would be two. The number of prosecuted subjects does not necessarily correspond to the total at the legislative level, because one prosecution might be related to more than one instrument.

^q Counts are the number of sections of legislation or regulations, for which there was a charge or conviction during the reporting period. For example, if one person is charged with two counts under CEPA, this is considered one charge laid against the subject and two counts.

^r Convicted subjects are the number of subjects convicted during the reporting period and are based on date sentenced.

^s EPAMs are counted by the number of charges laid before entering the alternative measures agreement.

4.6 Enforcement highlights

In 2016–2017, 33 subjects were convicted and sentenced for offences of contravening CEPA and its regulations, and $4,579,500 was directed to the Environmental Damages Fund (EDF).

The EDF is a specified purpose account, administered by ECCC, to provide a mechanism for directing funds received as a result of fines, court orders, and voluntary payments to priority projects that will benefit our natural environment.

Below are highlights of prosecutions that occurred under CEPA and its regulations in 2016-2017.

Disposal at sea

On December 12, 2016, a fish processing company, Barry Group Inc., was ordered to pay $200,000 in penalties for environmental violations that occurred at fish-processing facilities in Witless Bay and Port de Grave, Newfoundland and Labrador. The company was charged with contraventions of the disposal at sea provisions of CEPA. The charges stemmed from inspections carried out in June 2015 by ECCC enforcement officers, in which they observed workers dumping crab waste outside of the authorized disposal zone.

Ozone-depleting substances

On December 5, 2016, CRC Canada Co. was sentenced and ordered to pay $225,000 after pleading guilty to two counts of contravening the Ozone-depleting Substances Regulations, 1998 under CEPA. The fine was directed to the EDF. Enforcement officers conducted an investigation into the import and sale by CRC Canada Co. of aerosol products containing a prohibited ozone-depleting substance, HCFC-225. Charges were laid in February 2016. In addition to the fine, CRC Canada Co. agreed to pay all costs associated with the removal and destruction of the products seized by ECCC officers during the investigation.

On December 12, 2016, Acklands-Grainger Inc. pleaded guilty to contravening the Ozone-depleting Substances Regulations, 1998 made pursuant to CEPA. The company was fined $500,000, which was directed to the EDF. Enforcement officers conducted an investigation into Acklands-Grainger Inc.’s sale of aerosol products containing hydrochlorofluorocarbons (HCFC), a prohibited ozone-depleting substance. The investigation determined that between 2012 and 2014 the company sold HV Switchgear Lubricant and Sprayon EL2204, which contained the prohibited HCFC.

PCBs

On December 7, 2016, the Hudson Bay Company was found guilty of six charges and was fined $765 000 for violating the PCB Regulations and CEPA. The company was also ordered to establish an Environmental Management System, provide training on the legal consequences of violating environmental legislation to its Canadian managers, and publish an article on the facts surrounding their offences. The investigation, led by ECCC, showed that the Hudson Bay Company had committed several violations to the Regulations and to the act, namely releasing more than 146 kg of polychlorinated biphenyls (PCBs) into the environment, exceeding the permitted amount by 146 000 times; failing to notify as soon as possible of the release; failing to take all possible measures to prevent the release of the PCBs in the environment; and failing to submit to the minister, within the deadlines, the annual reports for 2008, 2009, and 2010. The fine will be directed to the EDF.

On December 20, 2016, Tidan Inc. and seven associated companies pleaded guilty to 52 charges and were fined $975,000 for violating CEPA and the PCB Regulations. This is the largest fine to date under CEPA. The investigation conducted by ECCC showed that Tidan Group did not follow environmental protection compliance orders issued by the Department’s enforcement officers and did not meet its obligations related to the use, storage and disposal of electrical equipment containing PCBs. Tidan Group also failed to submit reports on the use and storage of its electrical equipment to the Department. The fine that is collected will be paid into the EDF. The offenders were also ordered to publish an article on the facts surrounding their violations, to develop procedures to manage the contaminated electrical equipment for all of their buildings, and to provide training for their managers and staff.

4.7 International enforcement cooperation

Enforcement-related activities are carried out under various international and domestic agreements and organizations. ECCC actively participates in INTERPOL’s Pollution Crime Working Group, which brings together member countries to work collectively on pollution crime issues. ECCC also engages in cooperative activities with its counterparts at the U.S. Environmental Protection Agency (EPA) and Mexico's PROFEPA (Federal Attorney for Environmental Protection) and SEMARNAT (Secretariat of Environment and Natural Resources) under the umbrella of the Commission for Environmental Cooperation’s Enforcement Working Group. In addition, ongoing bilateral cooperation between the U.S. EPA and ECCC Enforcement supports both countries’ domestic mandates, particularly in the area of cross border environmental crime.