Canadian Environmental Protection Act annual report 2018 to 2019: chapter 5

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• 5. Compliance promotion and enforcement
  • 5.1 Compliance promotion priorities
  • 5.2 Compliance promotion priorities
  • 5.3 Enforcement priorities
  • 5.4 Enforcement activities
    • 5.4.1 Inspections
    • 5.4.2 Investigations
    • 5.4.3 Enforcement measures
  • 5.5 Prosecutions, tickets and EPAMs
  • 5.6 Enforcement highlights
  • 5.7 International enforcement cooperation

5. Compliance promotion and enforcement

To achieve greater compliance with the act and its risk management tools, both compliance promotion activities and enforcement measures are used. 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 focus on reducing pollution, including the release of toxic substances to air, water or land, and the import and export of hazardous waste that present a risk to the environment and/or human health. These activities aim to increase voluntary compliance with regulatory and non-regulatory instruments, thereby mitigating consequential enforcement actions.

Enforcement of the act is done in a fair, predictable and consistent manner. 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.

Enforcement activities are conducted in accordance with the Compliance and Enforcement Policy for CEPA and it is available online.

5.1 Compliance promotion priorities

Each year, Environment and Climate Change Canada (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 the identified compliance promotion priorities.

In 2018-2019, compliance promotion activities were carried out on 15 priority regulatory and non-regulatory CEPA instruments, namely:

• 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
• Concentration of Phosphorus in Certain Cleaning Products Regulations
• Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
• Federal Halocarbon Regulations, 2003
• Microbeads in Toiletries Regulations
• Multi-Sector Air Pollutants Regulations
• New Substances Notification Regulations (Organisms)
• Products Containing Mercury Regulations
• Prohibition of Asbestos and Asbestos Products Regulations
• Prohibition of Certain Toxic Substances Regulations
• Renewable Fuels Regulations
• Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements Regulations)
• Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations

ECCC also worked on planning the implementation for 39 new or amended regulatory and non-regulatory instruments published in the Canada Gazette, Parts I and II.

5.2 Compliance promotion priorities

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:

• developing and implementing many shortened and distinct URLs (vanity URL), which were used in targeted and personalized communication and contributed to a better engagement of the regulated communities:
  • a 50% increase in website visits for the Prohibition of Certain Toxic Substances Regulation, with 33% of those associated with the vanity URL
  • advertisement in professional magazines addressed at the retail community had a positive impact on consultation of the webpage related to the Microbeads in Toiletries Regulations
• gathering valuable information on industry practices and compliance barriers through many approaches such as surveying municipalities on the Code of Practice for the Reduction of Volatile Organic Compound (VOC) Emissions from the use of Cutback and Emulsified Asphalt and site visits with informal interviews for the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
• reporting under the Products Containing Mercury Regulations was increased following a blitz to reach importers of lamps that may contain mercury

In 2018-2019, 31 822 known or potential regulatees received compliance promotion awareness materials; and 4 860 stakeholders contacted compliance promotion officers for clarification of regulatory requirements 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 compliance promotion activity data. In 2018-2019 alone, ECCC identified over 3 144 new facilities and their contacts, as well as updated information related to an additional 100 793 facilities.

Promoting compliance to Indigenous people and within the federal government

In 2018-2019, 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 of 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.

5.3 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 2018-2019, the NEP gave priority to the following CEPA instruments:

• Off-Road Compression-Ignition Engine Emission Regulations
• Benzene in Gasoline Regulations, Sulphur in Gasoline Regulations, Sulphur in Diesel Fuel Regulations and Renewable Fuels Regulations
• Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations
• Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations

In addition to the planned inspections carried out under the NEP, enforcement activities 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. Additionally, 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.

In 2018-2019, ECCC initiated a risk assessment to assess and determine the risk of non‑compliance with its laws and regulations - including those under CEPA. This work will inform decision making processes and help better aligning enforcement actions and resources to protect the environment and human health.

5.4 Enforcement activities

Enforcement activities undertaken between April 1, 2018 and March 31, 2019, are summarized in the following 4 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 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

5.4.1 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 reviewing 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, or 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 1608 inspections under CEPA for fiscal year 2018-2019. 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.

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

5.4.2 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 2018-2019.

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

5.4.3 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 aim to return an alleged violator to compliance by way of a negotiated agreement
• administrative monetary penalties (AMP), which provide a financial disincentive to non‑compliance

The measures used in 2018 and 2019 are listed in tables 19 and 20.

Table 19 sets out the number of written warnings, EPCOs, and AMPs issued under CEPA for fiscal year 2018-2019.

* Enforcement measures that were issued between April 1 2018 and March 31 2019. Therefore it is possible that the initial inspection was conducted in a different fiscal year then when the measure was issued.
** Written warnings, EPCOs, and AMPs are tabulated by number of measures issued at the regulation level. For example, if one warning was issued for 2 different regulations the number of warnings would be 2. This is different than previous years where enforcement measures were calculated at the infraction level (that is, if the outcome of an inspection is the issuance of a written warning that relates to 3 sections of a given regulation, the number of written warnings is 3, even if a single letter was sent to the regulatee and may therefore give the impression that less enforcement has occurred).
*** 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 3 sections of the PCB Regulations, the number of subjects involved is one.

5.5 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 their 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 2018-2019.

* 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. As well, prosecuted subjects are counted by the number of parties charged. This means that if one case resulted in the prosecution of 2 different subjects, the number reported would be 2. 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.
** 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 2 counts under CEPA, this is considered one charge laid against the subject and 2 counts.
*** Convicted subjects are the number of subjects convicted during the reporting period and are based on date sentenced.
**** EPAMs are counted by the number of charges laid before entering the alternative measures agreement.

5.6 Enforcement highlights

In 2018-2019, 22 subjects were convicted and sentenced for offences of contravening CEPA and its regulations, and $2,829,127 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 2018-2019.

Disposal at sea

On November 7, 2018, Notre Dame Seafoods Inc. was ordered in the Provincial Court of Newfoundland and Labrador to pay $115,000 for contravening the act. The company pleaded guilty to one count of violating paragraph 124(1)(b) of the act (disposal at sea provisions). Charges resulted from a May 2017 inspection of the company’s fish-processing facility in Comfort Cove-Newstead, Newfoundland and Labrador. During the inspection, officers observed the loading of waste in a manner that was contrary to the conditions of the disposal at sea permit issued by ECCC.

Polychlorinated biphenyls (PCB)

On April 20, 2018, before the Court of Quebec, Distributions Limotrique inc. was fined $52,500 after pleading guilty to 3 counts of contravening the PCB Regulations. The company released PCBs into the environment in a concentration greater than 50 mg/kg, processed products containing PCBs in concentrations higher than 50 mg/kg, and failed to store PCBs at a storage site and send for destruction.

On July 31, 2018, before the Court of Quebec, Le Holding Sécurité CM Ltée pleaded guilty to 4 counts of contravening the PCB Regulations and one count for failing to comply with an environmental protection compliance order (EPCO), contrary to the act. The company was fined $240,000, all of which was paid to the Environmental Damages Fund. An investigation by the Department showed that Le Holding Sécurité CM Ltée failed to comply with an EPCO, discharged PCBs into the environment, failed to report to ECCC about the spill, had illegal equipment containing PCBs, illegally stored PCBs, and failed to submit annual reports within the time prescribed by the regulations.

On August 15, 2018, FortisAlberta Inc. was ordered by the Provincial Court of Alberta to pay a fine of $300,000 after pleading guilty to one count of violating the PCB Regulations and one count of violating the Canadian Environmental Protection Act, 1999. The charges stem from the company’s release of PCBs into the environment and its failure to promptly notify an enforcement officer or other designated person of the release.

On August 21, 2018, Collingwood Prime Realty Holdings Corp. and its director, Mr. Issa El‑Hinn, were sentenced in the Ontario Court of Justice for offences under the act related to contraventions of the PCB Regulations. The court sentenced Mr. El-Hinn to a 45-day jail term, to be served on weekends, for failing to comply with an environmental protection compliance order. The court also sentenced the corporation and Mr. El-Hinn to pay a combined penalty of $420,000 to be directed to the Environmental Damages Fund. The sentencing has since been appealed and the matter is currently before the courts.

Tetrachloroethylene

On December 10, 2018, GFL Environmental Inc. was sentenced after pleading guilty in the Ontario Court of Justice to violating federal environmental legislation. The company was fined $300,000. After an investigation charges were laid and GFL Environmental Inc. pleaded guilty to 2 counts of contravening the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations for selling tetrachloroethylene to owners or operators of dry‑cleaning facilities that did not meet regulatory standards.

Volatile Organic Compounds (VOCs)

On September 21, 2018, before the Court of Québec, company 9330-1208 Québec Inc. (operating as Les Produits Prodip.ca) pleaded guilty to one count of contravening the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations. Les Produits Prodip.ca was fined $25,000 to be paid in full to the Environmental Damages Fund. In addition to the fine, the company was ordered to pay $5,145 to cover the cost of destroying the non-compliant paint.

Renewable fuels

On May 14, 2018, the Canadian National Railway Company (CN) pleaded guilty to one count of violating the act for importing a fuel that does not meet the requirements of the Renewable Fuels Regulations. CN was fined $25,000 and was ordered by the court to pay a sum of $1,101,627 to promote the protection of the environment. The investigation found that between July 1, 2011 and December 31, 2012, CN imported over 224,000,000 litres of diesel fuel. Under the regulations, 2 percent of that volume should have been renewable fuel unless compliance units were acquired. Despite the compliance units acquired during that period, CN’s renewable-fuel deficit was 3 672 090 litres, below the 2 percent requirement. The fine and penalty were directed to the Environmental Damages Fund administered by Environment and Climate Change Canada.

Environmental Offenders Registry and Enforcement Notifications

The Environmental Offenders Registry contains information on convictions of corporations obtained under certain federal environmental laws including CEPA, since June 8, 2009. This tool allows the media and the public to search for corporate convictions using the name of the corporation, its home province, the province where the offence occurred, or the legislation under which the conviction was obtained.

The Enforcement notifications contain information about successful prosecutions across Canada under the acts and regulations administered by ECCC or involving ECCC enforcement officers (including CEPA).

5.7 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 October 2018, ECCC participated in INTERPOL’s Operation 30 Days at Sea, the first-ever global action aimed at combatting maritime pollution crime. During the operation, ECCC conducted numerous vessel inspections and worked closely with Transport Canada, as well as the United States Coast Guard and the United States Department of Justice. The joint Canadian efforts were also supported by Canada’s Department of Justice and the Public Prosecution Service of Canada.

In addition, ongoing bilateral cooperation between the U.S. Environmental Protection Agency and ECCC Enforcement, and trilateral cooperation with Mexico’s PROPEPA, under the auspices of the Commission for Environmental Cooperation of North America (CEC) support the 3 countries’ domestic mandates, particularly in the area of cross border environmental crime.