2.10 Part 10: enforcement

The evaluation identified four expected outcomes for Part 10:

  1. Increased awareness of enforceable Canadian Environmental Protection Act (CEPA 1999) instruments and related obligations.
  2. The rate of compliance with enforceable CEPA 1999 instruments improves.
  3. Enforcement is carried out in a fair, consistent and predictable manner.
  4. Facilities return to compliance more quickly through the use of more flexible enforcement tools.

CEPA 1999 provides enforcement officers with the authority to address cases of alleged non-compliance with the Act. CEPA enforcement officers have the following enforcement tools at their disposal:

The evaluation identified eight Ministerial obligations. All of these obligations are of a technical nature, prescribing the duties of enforcement officers and chief review officers. Evidence indicates that all but one of these obligations have been met. No evidence was available to show that the obligation requiring enforcement officers to return items seized under Section 222(2) within 30 days is being met.

Both the Compliance and Enforcement Policy for CEPA 199987 and the Compliance and Enforcement Policy for the Habitat Protection and Pollution Prevention Provisions of the Fisheries Act88 were released in 2001. These policies establish the principles for enforcing relevant sections of CEPA 1999 and the Fisheries Act. The policies identify expectations of those responsible for protection of the environment (e.g., government, industry, organized labour and individuals).

Contraventions Regulations89 were published in 2001 and identify violations under CEPA 1999 punishable by ticket.

Two Environmental Protection Alternative Measures Agreements90 have been negotiated and are posted on the CEPA Environmental Registry. Environmental protection alternative measures are an alternative to court prosecution for a violation under CEPA 1999. The Attorney General of Canada, in consultation with the Minister of the Environment, negotiates these agreements with the accused. The Environmental Protection Alternative Measure Agreements contain measures that the accused must take in order to restore compliance.

A memorandum of understanding was signed by Environment Canada and the Canadian Customs and Revenue Agency in 2000, designed to improve enforcement of environmental law at borders. Additionally, a memorandum of understanding with the Royal Canadian Mounted Police was signed in 2002 to clarify the responsibilities of both parties in enforcing pollution and wildlife laws for the protection of the environment.

Budgets were significantly increased in 2000 to strengthen the enforcement of environmental protection laws, and again in 2003 to improve the capacity within Environment Canada and Health Canada for meeting CEPA 1999 obligations (see Figure 5).

Environment Canada Environmental Protection Service Enforcement Expenditures

Annual inspection plans are prepared, and implementation is tracked and reported annually. The Department significantly increased its CEPA-related enforcement activities over the evaluation period (see Table 2 and Figure 6).

Table 2 - Annual enforcement actions under CEPA 1999
  1999-200091 2000-0192 2001-0293 2002-0394
Administrative verifications 2525 1309 3009 2870
Field/site inspections 779 1299 1628 1934
Investigations 64 14 57 36
Warnings 478 327 517 345
Prosecutions 26 3 27 4
Annual Enforcement Actions under CEPA 1999 (Excluding Investigations and Prosecutions)

Work has been initiated and/or completed on each of the following 10 identified priority actions:

  1. Department will take a more streamlined, innovative approach to making industry aware of incoming control instruments - Through the Compliance Assurance Branch and regional offices, Environment Canada's compliance promotion programming is being coordinated and delivered. The Branch leads the development of compliance strategies for each new instrument and works to integrate compliance promotion and enforcement efforts within existing programming.
  2. Compliance promotion materials will be coordinated to avoid duplication and to effect efficient distribution across regions- The National Compliance Promotion Coordinating Team establishes priorities for compliance promotion and coordinates efforts for compliance promotion activities.
  3. A national focal point for compliance promotion will be established - The Compliance Assurance Branch was established in 2003 as the departmental focal point for compliance promotion.
  4. A targeted approach to compliance promotion will be adopted by leveraging synergies between tools aimed at the same sector (as opposed to individual substances) - The use of the Compliance Analysis and Planning database is to be customized for compliance promotion. This is scheduled to begin in 2005-06 as part of stated outcomes in the work plan. The database is currently under development for use in targeting organizations for enforcement attention; after this is tested within enforcement, this technology will be used for targeting compliance promotion.
  5. More effective integration training of compliance promotion and enforcement officers - Appropriate program staff are members of enforcement training's design and delivery teams. Program staff provided information on regulatory requirements and compliance promotion activities. Service Agreements are signed between the Training and Learning Division and the regional enforcement managers to formalize this commitment to partnership.
  6. Electronic enforcement tools (integrated database information system) developed - Several electronic tools have been developed to improve enforcement capabilities. For instance:
    • The National Enforcement Management Information System and Intelligence System is used to track and manage enforcement activities and actions. This application is also used as the Department's official reporting mechanism.
    • The Regulatory Information Submission System is an electronic reporting tool that allows industry to submit required information through the Internet. The pulp and paper industry and the metal mining industry are currently using the system. Other industries that will be involved in the reporting system within the next few years include petroleum refineries and gasoline operators.
    • CAPMap is an online mapping tool that spatially represents information on Environment Canada's regulated community. Information from risk managers, compliance promotion officers and enforcement will be available through this tool. Development of the tool began in 2003 and will be completed in March 2005.
  7. Adopt a risk-based approach to enforcement - Every fiscal year, Environment Canada develops a national inspection plan for the regulations that it administers under CEPA 1999 and the Fisheries Act. The process for setting plans and priorities continues to evolve and improve; however, some of the specific considerations in setting priorities and in developing planned inspection activities include, but are not limited to, environmental significance, geographic scale, compliance history and profile, nature of the regulatory provisions, operational complexity and the capacity, number and type of targeted populations or activities.
  8. Develop a strong intelligence program that targets potential violators before infractions occur - The Department's intelligence function has grown and has been integrated into the enforcement program. Most regions are working on tactical and operational intelligence activities. However, gaps still remain.
  9. Develop a performance measurement framework for the enforcement program - One of the major functions of the Compliance Assurance Branch is to provide senior management and regional Environmental Protection Service management with the data, analyses, interpretation and reporting of compliance-related programming. Annual performance reporting of enforcement actions is provided in the CEPA 1999 Annual Reports.
  10. Integrate enforcement with pollution prevention and other environmental stewardship initiatives - Compliance strategies are being written to integrate enforcement with other related initiatives. For instance, the objectives of the Compliance Strategy for the Wet Processing Textile Industry are to ensure that the regulatees are informed of the requirements of the Pollution Prevention Planning Notice and are motivated to achieve the risk management objectives for substances specified in the Notice, preferably by using pollution prevention methods.

While resources were received in Budget 2003 to develop the enforcement program, additional work needs to be done to fully develop and strengthen the program, particularly as both the number and complexity of regulations is increasing. The evaluation identified the following issues and challenges for Part 10 implementation:

The Department significantly increased the resources available for CEPA 1999 compliance and enforcement activities during the evaluation period and undertook significantly more enforcement-related actions. It is not possible to determine whether expected outcomes with respect to Part 10 of the Act will be achieved as measurement and reporting systems capable of documenting progress towards expected outcomes in this area remain under development at the time of this evaluation. Such systems will need to be developed and implemented in order to ascertain the likelihood of progress relating to the expected outcomes:

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