10. Compliance including enforcement

The Canadian Environmental Protection Act, 1999 (CEPA 1999) provides enforcement officers with a wide range of powers to enforce the Act, including the powers of a peace officer.

These officers can carry out inspections to verify compliance with the act; conduct investigations of suspected violations; 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; enter, 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.

Officers responsible for responding to environmental emergencies have limited enforcement powers. They can receive notifications of and written reports on environmental emergency incidents, access the site of an environmental emergency, and conduct inspections. They can also give direction to take remedial or preventive measures and collect relevant information regarding the emergency. Relevant information can include examining substances, collecting samples, and preserving other physical evidence.

CEPA analysts can enter premises when accompanied by an enforcement officer. They can exercise the following inspection powers: open containers, examine contents and take samples, conduct tests and measurements, and secure access to information. Although CEPA analysts have no authority to issue warnings, directions, tickets, or orders, they may be called as expert witnesses for the purpose of securing an injunction or conducting prosecutions.

The Act provides a wide range of responses to alleged violations, including warnings, directions, tickets, prohibition orders, recall orders, detention orders for ships, injunctions to stop or prevent a violation, prosecutions, Environmental Protection Alternative Measures, and Environmental Protection Compliance Orders. Enforcement activities include measures to compel compliance without resorting to formal court action and measures to compel compliance through court action.

In 2004-05, the total number of designated CEPA enforcement officers was 105, including 6 officers from the Emergencies Program. In addition, there are 31 officers within the department whose main responsibility is to respond to environmental emergencies and who have limited enforcement powers.

In 2004-05, basic enforcement training was delivered to 27 enforcement officers who received designation under CEPA 1999 and the Fisheries Act. Environment Canada delivered the eight-week training program in partnership with a law enforcement training facility. Based on this delivery model, Environment Canada developed a three-year redesign and delivery plan and contracted with a law enforcement training facility to provide the required services.

In addition, Environment Canada completed a new online course on the Solvent Degreasing Regulations followed by a classroom portion. It also developed a design plan for a seminar, an online course, and a classroom portion for the revised Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.

In 2004-05, Environment Canada took steps to reinforce the linkages among the complementary segments of the "compliance continuum," which includes compliance promotion, enforcement, and compliance monitoring. A compliance assurance function was developed in order, in the longer term, to conduct research and evaluation on regulatory activities using a life cycle approach. In the shorter term, the intent is to provide functional guidance so that the department makes better priority-setting, targeting, and resource allocation decisions relating to compliance promotion and enforcement activities. Activities in 2004-05 involved standardizing and reconciling data on organizations subject to regulations under CEPA 1999 and developing software tools for storing, manipulating, and displaying related data.

An important component of the compliance assurance function is the development of performance management software for use by officials to enhance compliance efforts. Performance measures help the department to focus on those tools that best support the achievement of environmental results. To this end, test projects to measure the performance of compliance promotion and enforcement activities continue to be implemented. One example is the CEPA Track initiative led by the Prairie and Northern Region. As part of this project, a performance measurement document was prepared for the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations. This project aims to measure the effectiveness of our compliance program in terms of success of compliance promotion and enforcement activities in securing compliance with the regulations. Other test projects are being developed for the Environmental Emergency Regulations and the Pollution Prevention Planning Notice for Dichloromethane. Lessons learned from these projects will demonstrate practical means of measuring performance within the compliance continuum.

Compliance promotion activities are designed to help those subject to CEPA 1999 understand and achieve compliance with the law. In 2004-05, several new approaches to compliance promotion were initiated. Some examples follow:

• The Prairie and Northern Region conducted information sessions aimed at the "federal house." These included officials responsible for environmental programs and compliance within federal departments and agencies. Sessions included general information on the act and its related control instruments. Sessions were held in each of the three Prairie provinces and were attended by over 250 people.
• In January 2005, the Ontario Region hosted a multistakeholder Compliance Promotion Workshop. Approximately 200 participants attended from over 10 industrial sectors from Ontario, Nova Scotia, Alberta, Quebec, and the United States. The workshop included sessions on the Fisheries Act, section 36(3), and CEPA 1999 and its related control instruments. Examples of sessions included New Substances Notification Regulations, Domestic Substances List Categorization and Screening Program, Pollution Prevention Planning Notices for Inorganic Chloramines and Chlorinated Wastewater Effluents, Nonylphenol and its Ethoxylates in Textile Mills, Nonylphenol and its Ethoxylates in Products, Guideline for the Release of Ammonia Dissolved in Water Found in Wastewater Effluents, and Waste Regulations.
• The Quebec Region organized a federal seminar on environmental compliance. The objective of this biannual activity is to provide environmental managers in federal departments and agencies with the information and tools they need to achieve compliance with the laws and regulations to which they are subject. The first seminar took place in February 2005 and dealt with obligations regarding federal environmental management with respect to Part 9 of CEPA 1999 and its regulations, the Fisheries Act, and the Canadian Environmental Assessment Act.
• The Atlantic Region participated in the enforcement exercise targeting aquaculture operations. This exercise included participants from other federal departments and provincial jurisdictions. The exercise has led to broader cooperation within the various regulatory agencies and may lead to additional innovative compliance promotion opportunities.
• The Pacific and Yukon Region partnered with the BC Water and Waste Association to deliver two half-day workshops on the Pollution Prevention Planning Notice for Inorganic Chloramines and Chlorinated Wastewater Effluents and the Guideline for the Release of Ammonia Dissolved in Water Found in Wastewater Effluents. Approximately 40 participants attended the workshops, including wastewater treatment plant operators, equipment suppliers, municipal engineering consultants, and municipal/regional district administrative staff.
• Environment Canada continued to develop a national compliance promotion information system, which is designed to track and report on compliance promotion activities carried out by compliance promotion officers across the department.
• The Prairie and Northern Region completed an analysis to determine if mailing compliance promotion material was an efficient and effective method of communicating to a regulated community. It was determined that a significant number of returns were from a sector of industry that has a history of frequent changes to ownership, company name, and address. The analysis, detailed in the Section 200 Project Review Report, identified that the turnover/change rates of industry sector mail lists will determine the expected return rates for other mailouts.

In addition, numerous compliance promotion activities were delivered for individual control instruments under CEPA 1999. Some examples follow:

• Notice Requiring the Preparation and Implementation of Pollution Prevention Plans for Inorganic Chloramines and Chlorinated Wastewater Effluents and Guideline for the Release of Ammonia Dissolved in Water Found in Wastewater Effluents -- All Environment Canada regions, including the National Capital Region, developed compliance promotion materials. Workshops, meetings, and information sessions were held across Canada after publication of the instruments in December 2004. Information packages were sent out to 1200 stakeholders.
• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations -- All regions participated in compliance promotion activities, including mailing out reminders to nearly 3000 regulatees to submit 2004 annual reports by April 30, 2005; holding information sessions across the country; answering queries regarding the reporting requirements; and providing support to Enforcement Officers on the first round of inspection activities on these regulations. The Prairie and Northern Region prepared a performance measurement document (CEPA Track) to track rates of compliance over time. Data will be available in 2005-06.
• Federal Halocarbon Regulations, 2003 -- Collectively, the Prairie and Northern Region, Pacific and Yukon Region, and Quebec Region delivered seven information sessions. Fact sheets tailored to service contractors working in the heating, refrigeration, and air-conditioning industry and the fire-extinguishing equipment industry were developed in the Pacific and Yukon Region and Quebec Region.
• Environmental Emergency Regulations -- Collectively, nine information sessions were delivered in the Pacific and Yukon Region and Prairie and Northern Region. Several sessions were held in conjunction with National Pollutant Release Inventory (NPRI) information sessions. The Quebec Region held approximately 30 information meetings across Quebec for specific associations, such as the Canadian Chemical Producers Association, the Quebec Association of Fertilizer Manufacturers, the Quebec Business Council on the Environment, and others. The Quebec Region made a sustained effort with the municipalities in order to ensure compliance with the regulations. The compliance rate in that region was about 85% at the end of April 2005. The department is currently analyzing environmental emergency reporting trends to more effectively target and deliver future compliance promotion.
• Sulphur in Gasoline Regulations -- All regions sent a reminder letter to the regulated community in order to notify them of the entry into force of the new standard of 30 parts per million for sulphur in gasoline as of January 1, 2005.
• Textile Industry Pollution Prevention Plans -- The Quebec Region held two information sessions for textile factories in Quebec. Close to 40 participants from about 30 different factories participated in these sessions. The Quebec Region developed a Guide to Technical Resources in order to help the factories prepare and implement pollution prevention plans.
• Road Salts Code of Practice -- Activities to promote compliance included two meetings of the Road Salt Working Group, workshops in Montreal and Toronto, a presentation to the Ontario Good Road Association, and a promotional booth at the Transportation Association of Canada Congress. In addition, promotional materials such as success stories, brochures, promotional posters and postcards, and a Code of Practice Implementation Guide were prepared and distributed.
• Code of Practice for the Safe Handling, Use and Storage of Dichloromethane-based Paint Strippers in Commercial Furniture Refinishing and Other Stripping Applications -- An information note highlighting the existence of this code of practice was sent to the thousand regulators working in the industry.

Each year, Environment Canada prepares a national inspection plan that describes the inspection activities that will be carried out that fiscal year for CEPA 1999 and for the pollution prevention provisions of the Fisheries Act. To maximize the effectiveness of these activities, priority may be given to specific regulations. In 2004-05, priority regulations were identified on the basis of Environment Canada's Compliance and Enforcement Policy and included factors such as the risk to the environment and human health, compliance rates, new and amended regulations, nature of the regulatory provisions, operational complexity and capacity, and domestic and international commitments and obligations. The number of inspections carried out under the plan is supplemented by a large number of inspections resulting from response to spills, complaints, intelligence, or other information.

In 2004-05, the national inspection plan identified the following as national priorities:

• Gasoline Regulations;
• Fuels Information Regulation, No. 1;
• Sulphur in Diesel Fuel Regulations;
• Sulphur in Gasoline Regulations;
• Benzene in Gasoline Regulations;
• Export and Import of Hazardous Wastes Regulations;
• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations;
• Metal Mining Effluent Regulations under the Fisheries Act; and
• General Prohibition Provisions under the Fisheries Act (section 36(3)).

In addition, a number of regulations were identified as regional inspection priorities. The priority placed on regulations in each region was influenced by a number of factors, including geography, demographic factors, and provincial and territorial environmental sensitivities.

Enforcement officers appointed under CEPA 1999 carry out two categories of enforcement activity: inspections and investigations. The purpose of an inspection is to verify compliance with CEPA 1999 and its regulations. An investigation involves gathering, from a variety of sources, evidence and information relevant to an alleged violation. Any response to an alleged violation will be taken in accordance with the Compliance and Enforcement Policy for CEPA 1999.

Table 13 is a tabulation of inspections, investigations, and some of the more commonly used responses to violations for the reporting period of 2004-05.

EPCO = Environmental Protection Compliance Order, EPAM = Environmental Protection Alternative Measure
** These numbers include activities that are undertaken pursuant to enforceable provisions in CEPA 1999 rather than enforceable provisions found within CEPA 1999 regulations.

An Environmental Protection Compliance Order can be issued to prevent a violation from occurring; to stop or correct one that is occurring or continuing over a period of time; or to correct an omission where one is occurring under CEPA 1999 or one of its regulations.

As part of the Environmental Protection Compliance Order process, a Notice of Intent to issue an Environmental Protection Compliance Order is sent to the regulatee, along with a draft copy of the Environmental Protection Compliance Order. After receiving the Notice of Intent, the regulatee has the opportunity to make written or oral representations to the enforcement officer issuing the Environmental Protection Compliance Order. The enforcement officer will then consider the information provided in these representations and may choose to issue the Environmental Protection Compliance Order as is, modify it, or not issue it at all. There have been a few files for which the company involved provided information during representations that brought them into compliance or showed that they were now in compliance with CEPA 1999, and therefore the issuance of the Environmental Protection Compliance Order was deemed to be no longer necessary.

In 2004-05, 100 Environmental Protection Compliance Orders were issued, 88 to dry cleaners for violations of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirement) Regulations and the remaining 12 for violating various other regulations.

Environmental Protection Alternative Measures allow for a negotiated return to compliance without a court trial. In order to participate in an Environmental Protection Alternative Measures program, there are a number of conditions that must be met. These conditions are as follows:

• Charges for the offence(s) must be laid.
• The Crown prosecutor must be satisfied that the environment and human life and health will be protected if the Environmental Protection Alternative Measure is used.
• The accused's compliance history makes it likely that he or she will abide by the Environmental Protection Alternative Measure and return to compliance.

Also taken into account before the negotiation of an Environmental Protection Alternative Measures agreement are the accounts of the accused after the alleged violation occurred. Did the accused take any corrective action after the violation or preventive measures to ensure that the alleged offence(s) does not occur again? Was the accused cooperative, or did he or she try to conceal information?

In entering the Environmental Protection Alternative Measures program, the accused is not required to plead guilty to the alleged offence, but he or she must accept responsibility. Once the Environmental Protection Alternative Measure is negotiated, it is filed with the courts and becomes a public document. Once the conditions of the Environmental Protection Alternative Measure are fulfilled, the courts will dismiss the charges against the accused. If the accused fails to comply with the Environmental Protection Alternative Measure, this is in itself an offence under CEPA 1999, and prosecution for failure to comply will be undertaken.

In 2004-05, an Environmental Protection Alternative Measures agreement was negotiated between Environment Canada and a Quebec company. The company had been charged with contraventions of the Ozone-depleting Substances Regulations for the import, sale, and offering for sale of products containing CFCs. The company entered into the agreement, rather than proceed with court action. As part of the agreement, the company was required to modify existing procedures to prevent future contraventions of the regulations, publish the details of the event in a trade publication, and pay $100 000 to the Environmental Damages Fund.

The main prosecutions in 2004-05 included a British Columbia company that was fined $5000 ($500 fine and $4500 contribution to the Environmental Damages Fund) after being convicted under subsection 185(1) of CEPA 1999 for unlawfull importing hazardous waste into Canada.

Enforcement-related activities are carried out under various international agreements and organizations. Key international activities in 2004-05 follow:

• International Network for Environmental Compliance and Enforcement -- The network of more than 100 countries held its seventh annual conference in Marrakech, Morocco. Environment Canada's Enforcement Branch participated in the panels and workshops and supported the Marrakech Statement: Making Law Work for People, Environment, and Sustainable Development.
• North American Agreement on Environmental Cooperation -- The Enforcement Working Group under the Commission for Environmental Cooperation provides a forum to help member countries (Mexico, United States, and Canada) work together on projects and initiatives that encourage trinational environmental enforcement collaboration. In 2004, meetings focused on providing assistance and harmonizing the approaches of all three member states through the development of a learning e-tool under the auspices of the Border Training Project.
• Canada-Chile Agreement on Environmental Cooperation -- In the fall of 2004, Canada set up a workshop for visiting Chilean environmental officials in order to provide information on enforcement tools and processes as well as environmental legislation.