Canadian Environmental Protection Act annual report 2017 to 2018: chapter 4

4 Compliance promotion and enforcement

The goal of compliance promotion is to increase awareness and contribute to the understanding of risk management instruments to help ensure these instruments are effective in achieving desired environmental results. Compliance promotion officers across Canada provide information to regulated communities on what is required to comply with the Canadian Environmental Protection Act, 1999 (CEPA), the benefits of compliance, and the consequences of non-compliance.

Compliance promotion activities focused on reducing pollution, including the release of toxic substances to air, water or land, and the import and export of hazardous waste that presents a risk to the environment and/or human health. These activities aimed to increase voluntary compliance with regulatory and non-regulatory instruments, thereby mitigating 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 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. Resources are aligned with these identified compliance promotion priorities.

In 2017–2018, compliance promotion activities were carried out on 14 priority regulatory and non-regulatory CEPA instruments, namely:

  • Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
  • Code of Practice for the End-of-Life Management of Mercury Containing Lamps
  • Code of Practice for the Environmental Management of Road Salts
  • Code of Practice for the Reduction of Volatile Organic Compound (VOC) Emissions from the use of Cutback and Emulsified Asphalt
  • Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
  • Federal Halocarbon Regulations, 2003
  • Microbeads in Toiletries Regulations
  • Multi-Sector Air Pollutants Regulations
  • Products Containing Mercury Regulations
  • Prohibition of Certain Toxic Substances Regulations
  • Renewable Fuels Regulations
  • Storage Tank Systems Regulations for Petroleum Products and Allied Petroleum
  • Sulphur in Gasoline Fuel Regulations
  • Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations

ECCC also worked on planning the implementation for 41 new or amended regulatory and non-regulatory instruments published in the Canada Gazette, Parts I and II.

4.2 Compliance 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.

ECCC was particularly successful with:

  • a digital advertisement viewed 1.3 million times over a two-month period for the Microbeads in Toiletries Regulations, which lead to over 5000 people searching the ECCC website
  • a 68% increase in laboratory reporting for the Prohibition of Certain Toxic Substances Regulations
  • a 99% submission of expected compliance reports for the Code of Practice for the Environmental Management of Road Salt
  • twice as many companies responding to ECCC as a result of Behavioural Insights techniques used on the business reply form for the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations

In 2017-2018, 23,766 known or potential regulatees received compliance promotion awareness materials; and 4,772 stakeholders contacted compliance promotion officers for clarification of regulatory requirements and/or additional information. Most inquiries and feedback were received by email, while the remainder came by fax, letter and telephone.

Recognizing that communication efficiency and accuracy is important when reaching the regulated community, extra efforts were made this fiscal year to improve the quality of the Department’s compliance promotion activity data. In 2017–2018 alone, the Department identified over 2,200 new facilities and their contacts, as well as updated information related to an additional 53,860 facilities.

Promoting compliance to Indigenous people and within the federal government

In 2017–2018, 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 were delivered to Indigenous peoples throughout Canada and with other federal government departments to increase awareness of their obligations to comply with instruments under CEPA. These activities focused on compliance promotion priority instruments including the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations and Federal Halocarbon Regulations, 2003.

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 2017–2018, the NEP gave priority to the following CEPA instruments:

  • Off-Road Compression-Ignition Engine Emission Regulations
  • Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
  • Sulphur in Gasoline Regulations, Benzene in Gasoline Regulations, Sulphur in Diesel Fuel Regulations
  • Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations

In addition to the planned inspections carried out under the NEP, enforcement activities under CEPA also include a large number of 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, 2017, and March 31, 2018 are summarized in the following four tables.

  • Table 17 provides the number of on-site and off-site inspections for each regulation
  • Table 18 provides the breakdown of investigations for each regulation for which at least one investigation occurred and/or closed
  • Table 19 provides the total number of enforcement measures resulting from inspections and investigations that were imposed for each regulation
  • Table 20 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, such as 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. 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 17 details the 1832 inspections under CEPA for fiscal year 2017–2018. The number of inspections relates to the number of times the regulation was inspected for compliance using the start date of the inspection for the reference period.

Table 17: Number of inspectionsh under CEPA from April 1, 2017, to March 31, 2018
Instrument On-site Off-site Total
Canadian Environment Protection Act, 1999 - Total 1466 366
1832
2-Butoxyethanol Regulations 4 0 4
Benzene in Gasoline Regulations 21 0 21
CEPA - Section(s) 40 33 73
CEPA Section 46 Notices - Greenhouse Gases 2 1 3
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations 19 2 21
Concentration of Phosphorus in Certain Cleaning Products Regulations 1 0 1
Disposal at Sea Regulations 24 2 26
Environmental Emergency Regulations 157 33 190
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations 201 0 201
Export of Substances on the Export Control List Regulations 1 0 1
Federal Halocarbon Regulations, 2003  72 123 195
Fuels Information Regulations, No. 1 12 1 13
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations 55 0 55
Interprovincial Movement of Hazardous Waste Regulations 15 0 15
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations 5 0 5
National Pollutant Release Inventory 2 1 3
New Substances Notification Regulations (Organisms) 6 0 6
Off-Road Compression-Ignition Engine Emission Regulations 24 1 25
Off-Road Small Spark-Ignition Engine Emission Regulations 11 0 11
On-Road Vehicle and Engine Emission Regulations 2 0 2
Ozone-depleting Substances and Halocarbon Alternatives Regulations 30 0
30
Ozone-depleting Substances Regulations, 1998 1 0 1
PCB Regulations 162 19 181
PCB Waste Export Regulations, 1996 9 0 9
Products Containing Mercury Regulations 3 0 3
Prohibition of Certain Toxic Substances Regulations, 2012 9 1 10
Pulp and Paper Mill Defoamer and Wood Chip Regulations 3 7 10
Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations 3 5 8
Regulations Respecting Applications for Permits for Disposal at Sea 0 1 1
Release and Environmental Emergency Notification Regulations 0 1 1
Renewable Fuels Regulations 7 0 7
Solvent Degreasing Regulations 6 0 6
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations 226 7 233
Sulphur in Diesel Fuel Regulations 25 1 26
Sulphur in Gasoline Regulations 18 0 18
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations 215 127 342
Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations 74 0 74
Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations 1 1 1

h 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 it has been determined that a prosecution is the appropriate enforcement action.

Table 18 describes the number of investigations under CEPA for fiscal year 2017–2018.

Table 18: Breakdown of investigationsi from April 1, 2017, to March 31, 2018
Instrumentj Started before fiscal year 2017–2018 and ongoing at the start of the year Started in fiscal year 2017–2018 Ended in fiscal year 2017‒2018
Canadian Environment Protection Act, 1999 - Total 109 28 65
CEPA - Section(s) 41 9 19
Concentration of Phosphorus in Certain Cleaning Products Regulations 0 1 1
Disposal at Sea Regulations 8 0 2
Environmental Emergency Regulations 4 1 1
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations 3 1
1
Federal Halocarbon Regulations, 2003 1 2 1
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations 0
0 3
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations 1 1 0
Off-Road Compression-Ignition Engine Emission Regulations 1 1 3
Off-Road Small Spark-Ignition Engine Emission Regulations 3 0 3
Oil Pollution Prevention Regulations 2 0 0
On-Road Vehicle and Engine Emission Regulations 2 1 0
Ozone-depleting Substances Regulations, 1998 0 0 4
PCB Regulations 14 6 7
PCB Waste Export Regulations, 1996 1 0 0
Renewable Fuels Regulations 2 0 0
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations 11 2
7
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations 14 4 12
Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations 1 1 1

i 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.

j Only those regulations under which an investigation occurred during the time period are listed in this table.

4.4.3 Enforcement measures

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

  • warnings to bring an alleged violation to the attention of an alleged offender, and if applicable, return to compliance
  • directions generally to prevent or eliminate releases of regulated substances
  • tickets for certain designated offences, such as failure to submit written reports
  • various types of orders, including
    • environmental protection compliance orders (EPCOs) – generally to require action to be taken to stop an ongoing violation from continuing, or to prevent a violation from occurring
    • 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

The measures used in 2017 and 2018 are listed in Tables 19 and 20.

Table 19 sets out the number of enforcement measures under CEPA for fiscal year 2017–2018.

Table 19: Number of enforcement measures from inspections and invetigations from April 1, 2017, to March 31, 2018
Instrument Written warningsk Number of subjects involved in EPCOsl EPCOsk
Canadian Environment Protection Act, 1999  - Total 1895 44 202
2-Butoxyethanol Regulations 4 0 0
Benzene in Gasoline Regulations 2 0 0
CEPA - Section(s) 46 4 4
CEPA Section 46 Notices - Greenhouse Gases 3 0 0
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations 140 0 0
Disposal at Sea Regulations 4 0 0
Environmental Emergency Regulations 413 1 5
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations 31 0 0
Federal Halocarbon Regulations, 2003 32 0 0
Fuels Information Regulations, No. 1 2 0 0
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations 18 1 1
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations 11 0 0
New Substances Notification Regulations (Organisms) 0 1 1
Off-Road Compression-Ignition Engine Emission Regulations 26 0 0
Off-Road Small Spark-Ignition Engine Emission Regulations 1 0 0
Ozone-depleting Substances and Halocarbon Alternatives Regulations 10 2 4
PCB Regulations 48 7 19
Prohibition of Certain Toxic Substances Regulations, 2012 1 0 0
Regulations Respecting Applications for Permits for Disposal at Sea 1 0 0
Release and Environmental Emergency Notification Regulations 1 0 0
Renewable Fuels Regulations 18 0 0
Solvent Degreasing Regulations 6
0 0
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations 931 21 153
Sulphur in Diesel Fuel Regulations 5 0 0
Sulphur in Gasoline Regulations 4 0 0
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations 127 5 12
Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations 10 0 0
Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations 0 2 3

k 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.

l 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, corporation, 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 for offences under CEPA can be issued under the Contraventions Act, usually where there is minimal or no threat to the environment or human health. Where an offence has taken place and this 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 CEPA, another enforcement measure is the appropriate response.

EPAMs

An Environmental Protection Alternative Measure (EPAM) is an agreement that is negotiated with the accused 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 20 outlines the number of prosecutions, tickets, and EPAMs under CEPA for fiscal year 2017–2018.

Table 20: Number of prosecutions and new EPAMs from April 1, 2017, to March 31, 2018
Instrument Tickets Charges laid in fiscal year 2016–2017
prosecuted subjectsm
Charges laid in fiscal year 2016–2017
Countsn
Concluded in fiscal year 2016–2017
Convicted Subjectso
Concluded in fiscal year 2016–2017
Guilty Countsn
EPAMsp
Canadian Environment Protection Act, 1999  - Total 33 25 135 25 33 0
CEPA - Section(s) 0 10 15 9 10 0
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations 2 0 0 0 0 0
Concentration of Phosphorus in Certain Cleaning Products Regulations 0 0 0 1 1 0
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations 0 1 9 0 0 0
Off-Road Compression-Ignition Engine Emission Regulations 0 1 3 1 1  
Ozone-depleting Substances Regulations, 1998 0 0 0 1 2 0
PCB Regulations 0 4 16 3 4 0
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations 0 3 8 3 5 0
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations 31 11 78 8 9 0
Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations 0 2 6 1
1 0

m 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.

n 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.

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

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

4.6 Enforcement highlights

In 2017–2018, 21 subjects were convicted and sentenced for offences of contravening CEPA and its regulations, and $1,932,500 in fines was directed to the Environmental Damages Fund (EDF).

The Environmental Damages Fund 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 2017-2018.   

Ozone-depleting substances

On September 7, 2017, Fastenal Canada Ltd., of Kitchener, Ontario, was fined $265,000 after pleading guilty in the Ontario Court of Justice to two counts of contravening the Ozone-Depleting Substances Regulations, 1998. ECCC enforcement officers investigated Fastenal Canada Ltd., revealing that, from November 2012 to January 2015, the company imported and sold aerosol products containing hydrochlorofluorocarbons—a regulated ozone-depleting substance.

Storage tanks

On June 15, 2017, CN Railway Company pleaded guilty to violations of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations and the Fisheries Act as a result of a release of diesel fuel to the North Saskatchewan River. CN was sentenced to pay a total penalty of $2.5 million.

This stemmed from an April 9, 2015 report of an oil sheen on the North Saskatchewan River. With assistance from the City of Edmonton’s Drainage Services’ staff, ECCC officers traced the substance over eight kilometres through Edmonton’s storm drain system to an engine fueling station at CN’s Bissell Yard. A joint investigation with Alberta Environment and Parks determined that the oil-water separator and fuel storage system at Bissell Yard was not compliant with a number of requirements under the Storage Tank Systems for Petroleum and Allied Petroleum Products Regulations, which caused an estimated 90 litres of diesel to be released to the storm sewer.

On March 12, 2018, Crop Production Services (Canada) Inc. was sentenced in the Provincial Court of Saskatchewan for violations under the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.

The Court ordered the company to pay a total penalty of $150,000. An investigation conducted by ECCC enforcement officers, in 2016, revealed that Crop Production Services (Canada) Inc. had transferred petroleum products into unidentified storage-tank systems—a violation under the regulations.

Phosphorus

On November 6, 2017, Acuity Holdings, Inc. (Edmonton, Alberta) was fined $600,000 after pleading to one count of contravening the Concentration of Phosphorus in Certain Cleaning Products Regulations.

An investigation conducted by ECCC enforcement officers revealed that Acuity Holdings, Inc. manufactured and sold two commercial laundry detergents (Zeplift and Classic TKO), which contained concentrations of phosphorus in excess of the allowable limit.

Tetrachloroethylene

On August 16, 2017, Dalex Canada Inc., located in Concord, Ontario, pleaded guilty in the Ontario Court of Justice to one count of contravening the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations. Dalex Canada Inc. was fined $100,000.

ECCC enforcement officers conducted inspections in 2014 and identified instances where tetrachloroethylene was being sold to owners and operators of dry-cleaning facilities who did not meet regulatory standards. As a result of ECCC subsequent investigation, Dalex Canada Inc. pleaded guilty to selling tetrachloroethylene to an owner or operator of a dry-cleaning facility who was not in compliance with the regulations. The regulations prohibit anyone from selling tetrachloroethylene to dry cleaners unless the dry-cleaning facility is compliant with certain sections of the regulations. In addition to the fine, the court ordered Dalex Canada Inc. to publish an article in an industry publication, subject to ECCC approval. Dalex Canada Inc. is also required to notify Environment and Climate Change Canada before resuming sales of the regulated product to dry cleaners.

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. In 2017-2018, ECCC participated in INTERPOL’s 30 Days of Action which was the largest global enforcement action against waste crime and trafficking. In addition, ongoing bilateral cooperation between the U.S. Environmental Protection Agency and ECCC Enforcement supports both countries’ domestic mandates, particularly in the area of cross border environmental crime.

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