Compliance and enforcement policy for the Canadian Environmental Protection Act: chapter 5

Measures to Promote Compliance

• Education and Information
• Technical Information
• Consultation on Regulation Development and Review
• Environmental Codes of Practice and Guidelines
• Promotion of Environmental Audits

Environment Canada believes that promotion of compliance through information, education and other means is an effective tool in securing conformity with the law. Accordingly, Environment Canada will undertake public education and information transfer measures, as described in this chapter.

In addition, the department will meet as required with other federal departments and agencies, provinces, territories, aboriginal governments and aboriginal people, industry, environmental groups and other interested parties, so that information and concerns can be exchanged about the Canadian Environmental Protection Act, 1999, enforcement practices and compliance.

One of the roles of Environment Canada engineers, biologists, chemists, geologists and experts in environmental sciences is to promote compliance through various means that are described below. However, due to the nature of their responsibilities to verify compliance with CEPA, 1999 and to investigate suspected violations, enforcement officers and CEPA analysts will limit their compliance promotion activities to providing copies of CEPA, 1999, its regulations and this policy. For further information, scientific personnel and enforcement officers and analysts may also refer the public to Environment Canada's website.

Among the icons they will find at that site are the following: one with the title "CEPA Environmental Registry" and one with the title "Environmental Law Enforcement". The Registry, which CEPA, 1999 requires the Minister of Environment to create, contains the text of the Act itself, plus information about all aspects of the legislation, including environmental quality guidelines and objectives, release guidelines and codes of practice, existing and proposed regulations, assessments of substances indicating whether or not they are toxic under CEPA, 1999 and many other matters. The "Environmental Law Enforcement" icon provides access to information on enforcement under the Act, including any charges laid for CEPA violations.

Education and Information

As stated above, under CEPA, 1999, the Minister of Environment is required to create an Environmental Registry. The registry is not a listing of document titles; it is rather a collection of all documents that are required to be published under the Act and its regulations, as well as those that the Minister, in his or her discretion, decides to publish even in the absence of an obligation to do so.

CEPA, 1999 also allows the Minister to give notice of the availability of a document. In cases where a document is very lengthy or has complicated drawings, industrial plans or specifications, it is possible that the registry will contain only notice of the availability of the document, as well as a contact name or address from which the document may be obtained.

Through the Registry, Environment Canada will either provide or give notice of the availability of the following materials:

• copies of the Canadian Environmental Protection Act, 1999 and its regulations;
• environmental quality guidelines and objectives, release guidelines, and environmental codes of practice, developed under the Act;
• the Compliance and Enforcement Policy for the Act;
• a list of court actions arising from enforcement of theCanadian Environmental Protection Act, 1999, such as:
  • injunctions, indicating the name of the individual, company or government agency, who is the subject of the injunction, the action required under the injunction, and the time schedule to complete the action,
  • convictions under the Act, indicating the identity of the offender, the nature of the offence, and the sentence imposed by the court,
  • court orders following conviction for an offence under the Act, indicating the identity of the offender and a summary of the contents of the order,
  • civil suits instituted by the Crown, such as those to recover reasonable costs of clean-up or those incurred to remedy damage to the environment, and
  • forfeitures of items seized under the Act;
• information on precedent-setting cases under the Act.

In addition, the department may use media releases distributed to newspapers, radio and television stations, to publicize situations where charges have been laid and/or prosecutions have been successful. Law enforcement agencies in Canada and throughout the world recognize that publicizing the laying of charges and the results of prosecutions is an effective means of deterring potential offenders.

Technical Information

As explained above, enforcement officers and CEPA analysts will not be involved in providing technical information to other federal departments, agencies and federal Crown corporations, the private sector, provinces, territories, aboriginal governments and municipalities. This will be an area of endeavour reserved for Environment Canada personnel who may be engineers, biologists, chemists, geologists or experts in environmental sciences. They may provide technical information on:

• pollution prevention, as well as pollution control;
• measures to prevent releases of substances into the environment; and
• methods for analysis and monitoring.

The department will also use other means to communicate technical information, including:

• publications, such as technical reports and newsletters intended to promote exchange of information between governments and industry nation-wide;
• seminars and conferences;
• training materials; and
• licensing of research developments by Environment Canada to the private sector.

Consultation on Regulation Development and Review

Environment Canada believes that consultation on regulation development and amendment with both the parties to be regulated as well as the beneficiaries of regulation, results in better and more effective regulations for protection of the environment. Environment Canada also recognizes that compliance with regulations is more likely when there has been involvement by those parties in their development or amendment.

Environment Canada scientists and engineers who are responsible for the development of regulations will consult with affected parties at the stage of determining whether a problem exists that requires resolution, as well as during the development of any eventual regulation. In addition, CEPA, 1999 requires the Minister to seek advice or offer to consult on specific regulations. Under CEPA, 1999, the Minister must set up a National Advisory Committee, composed of one representative for each of the federal Ministers of Environment and Health, one representative from each province and territory, and one representative of aboriginal governments for each of the following regions: Atlantic (Newfoundland, Prince Edward Island, Nova Scotia, New Brunswick); Quebec; Ontario; Prairie and Northern (Manitoba, Saskatchewan, Alberta, Northwest Territories and Nunavut); Pacific and Yukon (British Columbia and the Yukon Territory).

Proposed regulations will also be published in the Canada Gazette as well as in the CEPA Environmental Registry, at which time affected parties and members of the public have a minimum time of 60 days to comment on the text.

Environmental Codes of Practice and Guidelines

While codes of practice and guidelines are not regulations and do not have the force of law, they can help achieve the objective of the Canadian Environmental Protection Act, 1999, namely the protection of the environment. The statute requires the Minister of the Environment to create environmental codes of practice, environmental quality guidelines and release guidelines. Environment Canada will develop these in consultation with interested parties, including provinces, territories, aboriginal governments and aboriginal people, industry and environmental groups. The personnel involved in the development of these guidance documents may be engineers, biologists, chemists, geologists or experts in environmental sciences.

Codes of practice as well as environmental quality and release guidelines can assist the putting in place of management practices that will result in better protection for the environment. Codes focus on substances and the processes and techniques related to their production and use, including activities such as handling, packaging, distribution, transport, and disposal. Environment Canada will base codes of practice on available and practicable technology.

Codes will contain technological information on alternatives to achieve protection of the environment. They may detail procedures, practices or release limits relating to works and undertakings during any phase of development or operation, including siting, design, construction, start-up, closure, and dismantling.

Environmental quality guidelines and release guidelines focus on the ambient environment. Environmental quality guidelines recommend acceptable levels of a particular substance in air, water or soil, to protect a specific use of that component of the environment. These guidelines will serve as:

• "yardsticks" to determine whether the environment and human health are being sufficiently protected; and
• targets for pollution prevention or pollution control programs by industry and government agencies.

Release guidelines will recommend limits for the release of substances into the environment. These guidelines, like codes of practice, will be based on what is acceptable environmental practice, founded on available and practicable technology.

As is the case with proposed regulations, the Minister of Environment is required by CEPA, 1999 to offer to consult on proposed environmental quality guidelines and objectives, release guidelines, and codes of practice. Comments from provincial, territorial and aboriginal governments, those who may use the objectives, guidelines and codes of practice in their manufacturing, commercial or other operations, environmental and labour groups and the public at large help Environment Canada produce useful information. In addition, under the Canadian Environmental Protection Act, 1999, the Minister of Environment is required to publish, in the Canada Gazette and in the Environmental Registry, either notice of the availability of codes and guidelines developed under the Act, or the texts themselves.

Promotion of Environmental Audits

Environmental audits are internal evaluations by companies and government agencies, to verify their compliance with legal requirements as well as their own internal policies and standards. They are conducted by companies, government agencies and others on a voluntary basis, and are carried out by either outside consultants or employees of the company or facility from outside the work unit being audited. Audits can identify compliance problems, weaknesses in management systems, or areas of risk. The findings are documented in a written report.

Environment Canada recognizes the power and effectiveness of environmental audits as a management tool for companies and government agencies, and intends to promote their use by industry and others.

To encourage the practice of environmental auditing, inspections and investigations under the Canadian Environmental Protection Act, 1999 will be conducted in a manner which will not inhibit the practice or quality of auditing. Enforcement officers and CEPA analysts will not request environmental audit reports during routine inspections to verify compliance with the Act.

Access to environmental audit reports may be required when enforcement officers have reasonable grounds to believe that:

• an offence has been committed;
• the audit's findings will be relevant to the particular violation, necessary to its investigation and required as evidence;
• the information being sought through the audit cannot be obtained from other sources through the exercise of the enforcement officer's powers.

In particular reference to the latter criterion, environmental audit reports must not be used to shelter monitoring, compliance or other information that would otherwise be accessible to enforcement officers or analysts under the Canadian Environmental Protection Act, 1999.

Any demand for access to environmental audit reports during investigations will be made under the authority of a search warrant. The only exception to the use of a search warrant is exigent circumstances, that is, when the delay necessary to obtain a warrant would likely result in danger to the environment or human life, or the loss or destruction of evidence.