CEPA Part VII: general information

Part VII of the Canadian Environmental Protection Act (CEPA) is largely concerned with the enforcement of the act and its regulations. Regulations can be created under many parts of the Act but enforcement powers are consolidated here. Under Section 34(6) the federal government can enter into an equivalency agreement with a province for the enforcement of a CEPA regulation. In addition, under Section 98 the federal government can enter into administrative agreements with provinces, which include enforcement. Agreements must be reported annually in this report and are included in this section.

Regulations are based on science and encourage innovative solutions. The potential economic impact is considered, and while they are strictly enforced, they are not inflexible. As part of a government-wide review, all CEPA regulations were reviewed during 1993 for their impact on competitiveness. The Regulatory Reform Agenda includes looking at a broader range of tools that will allow more effective and efficient mechanisms for managing environmental issues. Currently, 25 regulations are in place under the act.

Diesel Fuel Regulations

On February 19, 1997, the federal government published the Diesel Fuel Regulations in the Canada Gazette Part II. The regulations require that, effective January 1, 1998, diesel fuel must contain less than 0.5 percent by weight of sulphur to used by road vehicles, such as light- and heavy-duty trucks and buses.

Federal Lands Storage Tank Registration Regulations

Registration of Storage Tank Systems for Petroleum Products and Allied Petroleum Products on Federal Lands Regulations were published on January 8, 1997. These regulations require that petroleum storage tanks located on federal lands be registered with the federal operation (department, board, agency or Crown Corporation) that administers the land. Each federal operation to which the regulations apply must maintain a registration system and report annually on the status of the storage tanks on their lands. The regulations come into effect on August 1, 1997.

PCB Waste Export Regulations

The 1995 Interim Order (Section 35) which banned the export of PCBs to the U.S. was replaced by the PCB Waste Export Regulations on February 4, 1996. These regulations include stringent controls to ensure that any PCB waste that is exported is managed in an environmentally sound manner and is consistent with our international obligations and national standards. The regulations allow PCB waste to be exported to the U.S. alone for the sole purpose of its destruction. PCB waste cannot be used as landfill.

New Substances Notification Regulations: Biotechnology

The New Substances Notification Regulations were amended to include biotechnology products in Canada Gazette Part II on March 5, 1997 (see p 11).

Equivalency of provincial regulations to those under CEPA is assessed based on three criteria:

• Equivalent standards;
• The right of citizens to require investigation of offences; and
• Equivalent penalties and enforcement provisions.

The federal government retains its authority to report annually to Parliament on the administration of the equivalency agreements.

Agreement on the Equivalency of Federal and Alberta Regulations on the Control of Toxic Substances in Alberta

This agreement, signed on June 1, 1994, continues to operate in Alberta, where four CEPA regulations do not apply:

• Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations;
• Pulp and Paper Mill Defoamer and Wood Chips Regulations;
• Secondary Lead Smelter Release Regulations; and
• Vinyl Chloride Release Regulations.

The regulated facilities continue to show a high compliance rate with their provincial operating licenses for dioxin, furan and vinyl chloride emissions.

Administrative agreements are work-sharing partnerships that allow federal, provincial and territorial governments to streamline their work in administering regulations. They cover various activities such as monitoring, inspections, and enforcement, but they do not release the governments from their respective legislative responsibilities. Under an administrative agreement, the federal government remains accountable through Parliament, and the province or territory remains accountable through its legislature. Both levels of government are accountable to the Canadian public. Therefore, information-sharing in order to prepare annual reports is part and parcel of administrative agreements.

Agreement between the Government of Quebec and the Government of Canada respecting the Application in Quebec of Federal Pulp and Paper Mill Regulations

Even though the existing agreement expired in January 1996, both levels of government have worked in partnership under the spirit of the agreement during the negotiations. Canada and Quebec have agreed in principle to renew this agreement in order to continue to harmonize the federal and provincial regulatory requirements. The agreement will provide a single window to the industry for the application of and compliance with the two CEPA pulp and paper regulations and the pulp and paper effluent regulations under the Fisheries Act. The renewed agreement, that provides for enforcement and information sharing respecting all aspects of the federal regulation of the pulp and paper industry, should be signed by all parties by the end of 1997.

Administrative Agreement for the Administration of Federal-Provincial Pulp and Paper Effluent Regulations within the Province of Ontario

This agreement is currently under negotiation. When complete, it will look at a broad base of collaboration for environmental protection issues specific to the pulp and paper regulations under CEPA and the Fisheries Act. This agreement will encompass inspections, environmental-effects monitoring, information-sharing and enforcement.

Canada-Saskatchewan Administrative Agreement for the Canadian Environmental Protection Act

Under the agreement, cooperation in such activities as inspections, monitoring and reporting, and information sharing are covered. The agreement also provides for a one-window spill reporting arrangement with all reports being received by the province.

Canada-Northwest Territories Framework Agreement for Environmental Cooperation in the Northwest Territories

The Framework Agreement continues to apply in the Northwest Territories. Work is ongoing to develop specific areas of cooperation.

The Canada-British Columbia Agreement on the Administration of Federal and Provincial Legislation for the Control of Liquids Effluents from Pulp and Paper Mills in the Province of British Columbia

This agreement expired on March 31, 1996. The spirit of the agreement was maintained between April 1 and July 31, 1996. A new agreement is being negotiated. The proposed agreement focuses on the inspection of pulp mills.

Canada/Yukon Environmental Protection Agreement

Progress on the development of standards for contaminated sites, spill reporting and special wastes has been made. Training was provided for the Yukon Renewable Resources Protection Officers in areas of technical and legal aspects of water/soil sampling as related to pollution incidents. Extensive cooperation has occurred in areas of information-sharing on enforcement and compliance, inspections, training, and logistic support. The Yukon Government Department of Renewable Resources has developed a regulatory role for spill-reporting and is now an active participant in responding to spills within its area of jurisdiction.

The public may file a notice of objection respecting actions or regulations taken under the act. The procedures set out in Part VII of the act allow a Board of review to be established to examine this notice of objection. During 1996-97, notices of objection were received on the proposed amendments to the gasoline regulations, but a Board of review was not established.

Part VII provides for enforcement powers, including powers to inspect, search for and seize evidence, issue inspector’s directions, and prosecute for offenses with penalties that include fines up to $1,000,000, jail sentences up to five years, or both, or court orders.

The Enforcement and Compliance Policy establishes principles for fair, predictable and consistent enforcement. It informs all parties who share responsibility for protecting the environment - governments, industry, organized labor and individuals - about what is expected of them and what to expect from the officials who promote compliance and enforce CEPA and its regulations.

• It is perceived that most of the regulated community wants to be and is in compliance with environmental legislation. It needs to know the law and its requirements in order to be in compliance. This is achieved through broad-based compliance promotion activities.
• The behavior of the regulated community can be depicted as a distribution curve as shown in Figure 1. The vast majority of the regulatees maintain a level of compliance that puts them in the central portion of the curve. This group is willing, with some incentive, to comply with the legislation.
• The performance leaders category, on the right side of the curve is a small portion of the regulated community that has moved beyond simply complying with the legislation (a regulatee can be a performance leader in some areas and generally in compliance in others).
• The heavily shaded area located at the left of the curve represents the group that is out of compliance and is the focus of the enforcement program’s attention. It is a generally accepted rule of thumb that 80 percent of violations are caused by 20 percent of the regulatees.
• The lightly shaded area represents that portion of the regulated community that is in compliance but which will become non-compliant if there is no deterrent. This group is influenced by the results of our enforcement activities in the "offenders" group, and by our compliance promotion activities.

Compliance means the state of conformity with the law. CEPA provides for a variety of mechanisms to verify compliance, including inspection, taking of samples, auditing of reports, responding to tips, self-reporting and investigations.

Inspection programs verify compliance with the laws and their regulations. Regular inspections are carried out according to an annual National Inspection Plan, which identifies the quantity and types of inspections and monitoring activities to be carried out each year. Inspections are also conducted in response to spills, tips and complaints. When violations occur, detailed investigations are undertaken to gather evidence and information in order to make a decision on the appropriate enforcement action. Action is necessary in situations where there is non-compliance with the legislation and may include:

• Oral and/or written warnings;
• Inspector’s directions or orders from the Minister;
• Additional reporting requirements and inspections;
• Injunctions;
• Criminal prosecutions; and
• Civil suits by the Crown to recover costs.

Training continues to be of major importance in maintaining and enhancing the continuing enforcement program. It is linked to the designation, the appointment and the competency of enforcement staff and their ability to perform various skills at expected levels. The National Training Program comprises a wide range of courses developed and delivered through the collaborative efforts of headquarters and regional staff. Participants include inspectors, investigators and analysts. Subjects range from those dealing with general skills, for example the Basic Inspectors Course, to very specialized regulation-specific responsibilities.

In 1996-97, the following courses relating to the enforcement of regulations were given:

• Surveillance and Intelligence Analysis Exercise;
• New Substance Notification Regulations - Mock Inspection;
• Contaminated Sites Course - Wastewater Technology International Corporation;
• National Special Investigations Operator/Cover Team Course;
• Expert Witness Course;
• Forensic Accounting Course;
• Basic Inspectors Course;
• Advanced Pollution Investigators Course;
• Forensic Interviewing Course;
• Multi-media Ozone-Depleting Substances Sampling Course;
• Ocean Dumping Regulations Course;
• National Pollutant Release Inventory Course.

Approximately 335 individuals received training in the above courses during the reporting period.

A catalogue of training courses offered by Environment Canada is available upon request. It also includes references to training courses offered by other recognized agencies and organizations.

International activities include coordinating transboundary enforcement activities as well as several international conventions and agreements which Canada has signed that are related to compliance with CEPA.

The North American Agreement for Environmental Cooperation, a side-agreement to NAFTA, obliges Mexico, the U.S. and Canada to report annually to the North American Commission on Environmental Cooperation on their respective environmental enforcement activities. The second report was conveyed to the Commission in 1997. The Report covers three themes:

• The transboundary movement of hazardous wastes;
• Air issues; and
• The international trafficking of flora and fauna.

The North American Working Group on Environmental Enforcement and Compliance Cooperation was formed during in 1996. The Group attempts to monitor current developments and innovations in the field of enforcement and compliance promotion and facilitate information exchange and review of these matters - for example, the development of an enhanced North America-wide tracking system for the transboundary movement of hazardous substances.

Coordination of transboundary enforcement continued, including compliance with international conventions and agreements that Canada has signed. Canada continues to strengthen its working relationship with the U.S. Environmental Protection Agency and U.S. Customs to curtail the trafficking in chlorofluorocarbons (CFCs).

An assessment of the Enforcement Activity Tracking System to increase the quality of the system and to increase user satisfaction was conducted and completed in August 1996. In response to the study recommendations, a new version of the tracking system was prepared in order to upgrade its technology and update the user interface. The development of this updated system also took into consideration links with other Environment Canada computer systems and common user interface guidelines. The new system will be deployed during the summer of 1997.