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 whose main responsibility is responding to environmental emergencies 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 (EPAM), and Environmental Protection Compliance Orders (EPCOs). Enforcement activities include measures to compel compliance without resorting to formal court action and measures to compel compliance through court action.

In June 2005, Environment Canada took steps to reorganize its enforcement functions by creating the Enforcement Branch, headed by a Chief Enforcement Officer.

By bringing all enforcement responsibilities and accountability under one leader, the Department has enhanced its ability to react quickly to issues and re-align processes and resources to improve efficiency and effectiveness with the resources available.

Under the new structure of the Enforcement Branch, the National Capital Region is responsible for the direction, guidance and general administration of all enforcement operations. The National Capital Region is also responsible for the creation of national policies, training programs, strategic intelligence, inspection and priority planning. The five regions (Atlantic, Quebec, Ontario, Prairie and Northern, and Pacific and Yukon) are responsible for operational program implementation, including conducting inspections based on the planning process, investigations, preparation for court action, cooperation and coordination of enforcement activities with federal/provincial/territorial counterparts, and operational and tactical intelligence.

The following sections highlight achievements of the newly formed Enforcement Branch during the 2005-06 fiscal year.

In 2005-06, there were a total of 153 designated Canadian Environmental Protection Act, 1999 enforcement officers. There are another 31 officers with the Emergencies Program who are mainly responsible for responding to environmental emergencies and who have only limited enforcement powers.

Environment Canada also developed a training program for compliance-promotion staff to ensure that they understand the impacts of their work and adopt best practices to ensure the integrity and enhance the quality of the compliance-promotion services offered by the Department. The training will be delivered to compliance-promotion officers in all regions in 2006-07.

In 2005-06, Environment Canada began a three-year project to redesign the basic enforcement training program in cooperation with a contracted law-enforcement training facility. This course was not delivered during the fiscal year, and therefore no new officers were designated with full enforcement officer powers.

During this period, the Limited Powers/Analyst Designation course was redesigned and delivered. Following the course, 13 officers received designation with limited powers and 22 analysts were designated as CEPA analysts. Other learning projects carried out included:

• development and delivery of a seminar and development of an online course for the revised Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations;
• preparation of a professional development and apprenticeship program for enforcement officers;
• learning needs analysis and design of training in Bill C-15, Birds Oiled at Sea legislation; and
• learning needs analysis and planning for the design of a training course in advanced investigation techniques.

Compliance promotion activities include the planning, development and delivery of information to persons subject to enforceable and non-enforceable risk management instruments in order to promote compliance/adherence voluntarily. An important planning tool for compliance promotion is the Compliance Analysis and Planning program, and in 2005-06, Environment Canada continued its activities to further develop and implement the program. This includes developing a Web-based mapping, planning and reporting tool that integrates facility, program and environmental data. It will allow Environment Canada to better identify compliance promotion and inspection priorities and estimate compliance rates within the regulated community by facility, sector, and regulation.

Also in 2005-06, a number of effective compliance promotion approaches were used for instruments under the Canadian Environmental Protection Act, 1999. Only a few of the many compliance promotion activities conducted in 2005-06 are presented hereunder.

Collaboration with other government departments and non-governmental organizations

• "Operation Clean Feather," an education program for the prevention of marine pollution, was undertaken again in 2005-06. A total of 230 ocean-going vessels were visited at 12 East Coast ports in Atlantic Canada. As part of this initiative a new brochure, in 10 languages, and a calendar were developed and distributed during ship visits. Clean Feather is undertaken in cooperation with Transport Canada and the shipping industry. As part of 2005-06 activities, Environment Canada initiated contact with the United States Coast Guard. As a result, the United States Coast Guard agreed to disseminate Operation Clean Feather compliance promotion material at five major ports along the Eastern Seaboard.
• Environment Canada's Quebec Region collaborated with the École nationale du meuble et de l'ébénisterie du Cégep de Victoriaville to develop a course on the good practices recommended in the Code of Practice for the Safe Handling, Use and Storage of Dichloromethane-based Paint Strippers in Commercial Furniture Refinishing and Other Stripping Applications. A trainer's guide and a learner's guide were developed. To date, the course has been given twice by École nationale du meuble et de l'ébénisterie du Cégep de Victoriaville to very positive feedback. The next step will be to promote these documents at the other woodworking schools in Quebec. There is also interest in translating them for use in other parts of Canada.

Collaboration with First Nations

• In November 2005, Environment Canada staff gave water management-themed presentations at the 4th Annual National Aboriginal Land Managers' Association meeting in Halifax, Nova Scotia. With members in each of Canada's provinces and territories, the National Aboriginal Land Managers' Association network aims to enhance technical expertise related to land management while incorporating Aboriginal values and grassroots practices. Materials presented included the First Nations Water Management Strategy (including source water protection and sustainable water use initiatives), wastewater technology, design and protocols, and upcoming opportunities for Aboriginal engagement related to the Canadian Council of Ministers of the Environment, CCME Canada-wide Strategy for the Management of Municipal Wastewater Effluents.
• Environment Canada's Prairie and Northern Region conducted a one-day, multi-instrument information session specifically for First Nations. Prairie and Northern Region partnered with the Saskatchewan Aboriginal Lands Technicians to provide regulatory compliance information to First Nations land managers, land officers, band councillors, treaty land entitlement coordinators/trustees, economic development members, and Indian and Northern Affairs Canada employees. Environment Canada provided presentations on relevant Canadian Environmental Protection Act, 1999 instruments and on the Fisheries Act. The session was a success, judging by the questions asked during the presentations and the comments received on the evaluation forms.
• Environment Canada's Ontario Region successfully concluded the administration of a four-year environmental management project with seven northern Ontario First Nations communities. The project included hiring, training and mentoring an Aboriginal environmental technician, and provision of ongoing technical support to develop a pollution prevention and environmental management plan. Activities conducted under this plan included implementing spill prevention and contingency response measures and conducting fuel storage tank inventories and assessments. Funding for the project was made available under a court order agreement directing that fines levied against those responsible for a large fuel spill in the area be used to assist the communities to meet legislated standards.

Targeting the right audience

• Environment Canada's Ontario Region held workshops on theEnvironmental Emergency Regulations and spill prevention in Ottawa, Sault Ste. Marie, and London, Ontario. Additional effort was made to contact potential regulatees in the water treatment, wastewater treatment and metal finishing sectors directly, where there was believed to be lower compliance.
• Environment Canada's Pacific and Yukon Region developed and carried out a survey for municipalities in British Columbia to engage with the target audience of the Code of Practice for the Environmental Management of Road Salts and confirm organization contact information, raise awareness of the Code, and gather information on current implementation of the Code. Using the information from the survey, an accurate list of the target community was compiled.
• In November 2005, Environment Canada's Pacific and Yukon Region hosted an information session on the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulationsfor existing regulatees. The full-day session was very well attended.
• For the Polychlorinated Biphenyl (PCB) Regulations, Environment Canada's Atlantic Region contacted federal polychlorinated biphenyl owners and managers within the Atlantic Provinces in an effort to proactively track regional progress towards achieving current and proposed domestic and international obligations for the management of polychlorinated biphenyls. Overall, the compliance promotion approach included self-certification forms, site visits and encouragement of polychlorinated biphenyl site owners and managers to identify in-use polychlorinated biphenyl items, send stored polychlorinated biphenyl items for destruction at authorized facilities, and shut down any unneeded polychlorinated biphenyl storage sites.

Ensuring regulatees are reached

• For the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations, Environment Canada developed compliance promotion materials in many different languages, including Punjabi, Korean, Chinese and Persian, to ensure regulatees understood what was required of them. In addition, Environment Canada's Pacific and Yukon Region held information sessions for dry cleaners during evenings and weekends to accommodate the working schedules of the small business owners.
• An amendment to the Sulphur in Diesel Fuel Regulationswas published October 19, 2005, in Part II of the Canada Gazette. A compliance promotion package was sent in January 2006 to all regulatees (approximately 250).
• Environment Canada's Pacific and Yukon Region and Prairie and Northern Region worked together to update a workshop on theFederal Halocarbon Regulations, 2003. The regions then held 10 one-day training sessions in six cities. Over 400 stakeholders were in attendance.
• For the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, all Environment Canada regions developed and delivered compliance promotion material, including workshops, meetings, mail-outs, and information sessions.

Using new and different tools to deliver the message

• Many regions tested video conferencing to deliver information sessions to the regulated community. Use of video technology for this purpose can save resources by eliminating the need for travel by the regulated community.
• Environment Canada's Ontario Region developed and distributed three issues of a regional compliance newsletter, Compro Update, to federal facilities and First Nations. The newsletter's circulation surpassed 500.
• When appropriate, the regions delivered multi-instrument information sessions to the regulated community whereby an overview of a few instruments under the Fisheries Act and the Canadian Environmental Protection Act, 1999 were covered during an information session. These sessions are efficient as many members of the regulated community may be subject to more than one risk management instrument.
• Quebec Region produced a bilingual environmental compliance guide aimed at all federal government departments, agencies and boards, Crown corporations, federal enterprises, Aboriginal lands, federal lands, and persons whose activities involve those lands and who are located in Quebec. Almost 200 copies of the guide were distributed. The guide summarizes the laws, regulations, guidelines and other reference documents dealing with the protection of the environment on the territory of the province of Quebec.

Success of compliance promotion activities

• Fact sheets were mailed out for the New Substances Notification Regulations (Organisms) and the New Substances Notification Regulations (Chemicals and Polymers). This mail-out was coordinated with other Environment Canada programs because the 10,000 potentially affected facilities included the regulated communities of the National Pollutant Release Inventory, the Ozone-depleting Substances Regulations, the Environmental Emergency Regulationsand the Metal Mining Effluent Regulations. A telephone survey was used to solicit information on the effectiveness of the mail-out. It was determined that the mail-out was successful as most respondents considered themselves more knowledgeable about theNew Substances Notification Regulations.
• Quebec Region contributed to promoting environmental compliance in the "federal house" by organizing two federal seminars on environmental compliance. These seminars inform the federal community about Environment Canada's intentions relative to risk management tools for polychlorinated biphenyls, fuel storage tanks, hazardous waste, and municipal wastewater. Close to 100 people from agencies and enterprises of the Government of Canada attended alongside environmental service providers. More than 70% of participants surveyed reported that the subject matter covered in the seminars was interesting or very interesting.
• The Code of Practice for the Environmental Management of Road Salts asks organizations using 500 tonnes or more of road salts to voluntarily develop and report on a management plan. Many types of compliance promotion activities were developed and delivered, including presentations, workshops, a promotional booth, success stories, brochures, promotional posters and an Implementation Guide. Ontario Region contacted over 125 individual road authorities by e-mail, identified their specific level of code implementation, and reminded them to complete the elements missing from their letters of intent, salt management plans, and 2005 annual reports. Following this exercise, salt management planning increased by 36% among Ontario road authorities.
• The compliance promotion activities for the Notice with respect to Reporting of Greenhouse Gases consisted of the publication and distribution of a technical guidance manual, a direct-mail campaign and information sessions held across Canada. In 2005, EC received 324 reports from facilities representing approximately 37% of Canada's total emissions.

In addition, numerous compliance promotion activities were delivered for individual control instruments under the Canadian Environmental Protection Act, 1999. Some examples follow hereunder.

• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations. All regions participated in compliance promotion activities: mail-outs were sent to nearly 3,000 regulatees reminding them to submit 2004 annual reports by April 30, 2005; information sessions were held across the country; and queries regarding the reporting requirements were answered.
• Federal Halocarbon Regulations, 2003. Collectively, Prairie and Northern Region, Pacific and Yukon Region, and Quebec Region held seven information sessions. Fact sheets tailored to service contractors working in the heating, refrigeration and air-conditioning industries as well as the fire-extinguishing equipment industry were developed in Pacific and Yukon Region and Quebec Region.
• Environmental Emergency Regulations. Ontario Region held three information sessions and delivered compliance promotion to potential regulatees in the water treatment, wastewater treatment and metal finishing sectors. Two information sessions were held in the Atlantic Region and an information mail-out was sent to 100 facilities. Atlantic Region also participated in nine site visits, reviewed five plans, and evaluated two exercises. Prairie and Northern Region held several sessions in conjunction with the National Pollutant Release Inventory and delivered compliance promotion information sessions. Prairie and Northern Region also sent out compliance promotion materials to regulatees. Quebec Region held approximately 13 information sessions across Quebec for industry, municipalities, governments, and others. The compliance rate across Canada was about 80% at the end of March 2006. The Department is currently analyzing environmental emergency reporting trends to more effectively target and deliver future compliance promotion.
• Notice requiring the preparation and implementation of pollution prevention plans in respect of effluents from textile mills that use wet processing and nonylphenol and its ethoxylates. Quebec Region held two information sessions for textile factories in the province. Close to 40 people from about 30 different factories attended. Quebec Region developed a technical resource guide to help these factories prepare and implement pollution prevention plans.

Every year, a national inspection plan is developed that describes the inspection activities that will be carried out in that fiscal year for the Canadian Environmental Protection Act, 1999 and the pollution prevention provisions of the Fisheries Act. To maximize the effectiveness of these activities, priority is given to specific regulations.

In 2005-06, priority regulations were identified on the basis of a comprehensive internal consultation process involving all Environment Canada enforcement partners. Factors that influence the identification of the priority regulations include the risk to the environment and human health represented by the regulated substance or activity, 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 responses to spills, complaints, intelligence or other information.

In 2005-06, the national inspection plan identified the following as national priorities:

• Gasoline Regulations;
• Fuels Information Regulations, 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;
• Federal Halocarbon Regulations, 2003;
• Metal Mining Effluent Regulations under the Fisheries Act;
• Pulp and Paper 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 the Canadian Environmental Protection Act, 1999 carry out two categories of enforcement activity: inspections and investigations.

The purpose of an inspection is to verify compliance with the Canadian Environmental Protection Act, 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 the Canadian Environmental Protection Act, 1999.

An Environmental Protection Compliance Order (EPCO) 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 the Canadian Environmental Protection Act, 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 alleged offender, who 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 the Canadian Environmental Protection Act, 1999, and therefore the issuance of the Environmental Protection Compliance Order was no longer deemed to be necessary.

In 2005-06, 76 Environmental Protection Compliance Orders were issued, 67 to dry cleaners for violations of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirement) Regulations and the remaining nine for violating various other regulations.

Environmental Protection Alternative Measures (EPAM) 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 measure to ensure that the alleged offence(s) does not recur? 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 Measures is negotiated, it is filed with the courts and becomes a public document. Once the conditions of the Environmental Protection Alternative Measures are fulfilled, the courts will dismiss the charges against the accused.
• If the accused fails to comply with the Environmental Protection Alternative Measures, this is in itself an offence under the Canadian Environmental Protection Act, 1999, and prosecution for failure to comply will be undertaken.

In 2005-06, 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 hydrochlorofluorocarbons. The company entered into the agreement rather than proceed with court action. As part of the agreement, the company was required to implement operational procedures to prevent contraventions of the Regulations, publish an article in an information bulletin, and pay $15,000 to the Environmental Damages Fund.

A significant prosecution took place in 2005-06 in Ontario when the owner of a company pleaded guilty to two charges under the Export and Import of Hazardous Waste Regulations made pursuant to the Canadian Environmental Protection Act, 1999. He received a sentence of 30 days on each count, to be served concurrently. All charges against the company were withdrawn and a diversion agreement was negotiated with the company. The company agreed to pay $5,000 to the Niagara Peninsula Conservation Authority for environmental projects in the Niagara region.

Enforcement-related activities are carried out under various international and domestic agreements and organizations. Key international and domestic activities in 2005-06 are presented hereunder.

• International Network for Environmental Compliance and Enforcement - The network of more than 100 countries held its 7th 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 tri-national environmental enforcement collaboration.