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Canadian Environmental Protection Act, 1999 (CEPA) Annual Report for April 2015 to March 2016

4. Compliance Promotion and Enforcement

Compliance promotion relates to the planned activities that are undertaken to increase awareness, understanding and compliance with the law and its regulations. Through these activities, compliance promotion officers provide information to regulated communities on what is required to comply with the law, the benefits of compliance and the consequences of non-compliance. The goal is to achieve desired environmental results more efficiently.

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; 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; 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. CEPA analysts can enter premises when accompanied by an enforcement officer and can exercise certain inspection powers.

A wide range of enforcement measures are available to respond to alleged violations. Many are designed to achieve compliance without resorting to a formalized legal 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. 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 pleading guilty.

4.1 Compliance Promotion Priorities

In 2015–2016, ECCC worked on compliance strategies and compliance promotion plans for 28 risk management instruments going through the Canada Gazette Parts I and II, including the federal government’s priority sector approach to the proposed Multi-Sector Air Pollutants Regulations (MSAPR). The Department continued to focus compliance promotion efforts on geographically dispersed, hard to reach, small and medium-sized enterprises (MSE) (less than 500 employees), Indigenous peoples, and federal departments.

The Department added over 11,000 facilities and their contacts to the national compliance promotion database during this fiscal year, improving knowledge of the regulated community. Information for additional 50,000 facilities and contacts were updated, ensuring high efficiency and accuracy when reaching the regulated community.

4.2 Compliance Promotion Activities

ECCC delivered compliance promotion activities for new and existing regulations and codes of practice under CEPA.

Table 13: High and medium priority instruments for which compliance promotion was provided
High Priority InstrumentsMedium Priority Instruments
PCB RegulationsCode of Practice for the Environmental Management of Road Salts
Products Containing Mercury RegulationsExport and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
Prohibition of Certain Toxic Substances Regulations, 2012Federal Halocarbon Regulations, 2003
Storage Tank Systems for Petroleum Products and Allied Petroleum Products RegulationsBenzene in Gasoline Regulations
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) RegulationsSulphur in Diesel Fuel Regulations
Volatile Organic Compound Concentration Limits for Architectural Coatings RegulationsGasoline and Gasoline Blend Dispensing Flow Rate Regulations
Renewable Fuels Regulations 
Sulphur in Gasoline Regulations 

Multiple approaches were used to reach the regulated communities, including workshops, information sessions, presentations, information package emails/mail-outs and through technology such as videos, Twitter and Web banner advertising. Many of these activities were carried out in collaboration with provincial and territorial governments, as well as non-governmental organizations.

Responding to Inquiries

Compliance promotion officers continued to raise awareness and understanding of the Department’s regulatees by responding to over 3,400 inquiries on 14 compliance promotion priority risk management instruments. Two thirds of inquiries came in via email or fax, while the remainder came in via letter and telephone.

Promoting Compliance to Indigenous People and within the Federal Government

In 2015–2016, ECCC continued to work closely with Indigenous people. Workshops, information sessions and compliance promotion materials were delivered to Indigenous peoples throughout Canada to increase awareness of their obligations to comply with instruments under CEPA as well as their responsibilities under the Fisheries Act. The instruments promoted included the Environmental Emergency Regulations, the PCB Regulations; the Renewable Fuels Regulations; the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations; the Gasoline and Gasoline Blend Dispensing Flow Rate Regulations; and Fisheries Act [subsection 36(3)].

Compliance promotion to federal government department and agency regulatees included individual communications, campaigns and multi-instrument activities on the Federal Halocarbon Regulations, the Petroleum and Allied Petroleum Products Storage Tank Regulations, the Environmental Emergencies Regulations; the PCB Regulations; the Volatile Organic Compound Concentration Limits for Architectural Coatings Regulations; the Code of Practice for the Environmental Management of Road Salts; the Gasoline and Gasoline Blend Dispensing Flow Rate Regulations; the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations; and the Wastewater Systems Effluent Regulations, and Fisheries Act subsection 36(3).

Promoting compliance with transportation sector emission regulations

Imported “Yamma” engines are being destroyed after failing to meet Canadian emission standards. Photo: Allison Grant © Environment and Climate Change Canada
Imported “Yamma” engines are being destroyed after failing to meet Canadian emission standards.
Photo: Allison Grant © Environment and Climate Change Canada

There are six RegulationsFootnote3 covering on-and off-road vehicles and engines that apply to manufacturers in Canada and to persons importing prescribed products into Canada. During 2015–2016, regulatory program officers received over 750 technical inquiries from regulatees and prospective regulatees seeking clarifications related to the transportation sector regulations.  Additionally, mail outs are regularly used to remind regulatees of forthcoming reporting deadlines. Supplemental guidance was posted to inform regulatees of the process related to informing the Department and owners of an emissions-related defect / recall.

Promoting Compliance with Small and Medium-sized Enterprises

Multi-instrument compliance-promotion activities provide an opportunity for stakeholders to obtain information regarding Acts and risk management instruments affecting their activities, in an efficient and effective way. Regulatees also benefit from the knowledge and experience of the on‑site compliance promotion officers, the distribution of printed materials on the legislation, and the identification of contacts for further inquiries. In 2015–2016, ECCC reached small and medium-sized enterprises through over 45 campaigns on the 14 compliance promotion priority regulations, through multi-instrument activities, and on a per regulation basis.

In order to bring awareness to importers of products containing mercury, the Department provided an information package developed to provide specific information and present the benefits of engaging with ECCC, to around 2,000 potential importers in the regulated community.  Additional efforts undertaken in British Columbia and Yukon to provide personalised information in the packages resulted in a 50% response rate from importers. The information garnered from the responses received and follow-up conversations has enabled ECCC to further its understanding of this community and will enable the Department to provide tailored information for the importer sector, when promoting compliance with the Products Containing Mercury Regulations. This importer engagement work also resulted in some reaction in the Twittersphere, leading some customs brokers and freight companies to tweet some of the Department’s information to their clients.

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, suspected non-compliance issues, recent publication of new and amended regulations, operational complexity and capacity, and domestic and international commitments and obligations.

 In 2015–2016, the NEP projects and priorities were carried out under the following CEPA instruments:

  • Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations;
  • Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations;
  • PCB Regulations; and
  • Off-road Compression-Ignition Engines Emission Regulations

The number of planned inspections carried out under the NEP is supplemented by a large number of unplanned 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, region specific issues or concerns, and provincial and territorial environmental sensitivities.

4.4 Enforcement Activities

Enforcement activities undertaken during 2015–2016 are summarized in the following four tables.

  • Table 14 provides the number of on-site and off-site inspections for each regulation from April 1, 2015, to March 31, 2016.
  • Table 15 provides the breakdown of investigations for each regulation for which at least one investigation occurred and/or closed from April 1, 2015, to March 31, 2016.
  • Table 16 provides the total number of enforcement measures resulting from inspections and investigations that were imposed between April 1, 2015, and March 31, 2016, for each regulation.
  • Table 17 provides the number of prosecutions from April 1, 2015, to March 31, 2016, 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-siteinspection involves visiting a site, 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 or permit. 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 14 outlines the number of inspections under CEPA for fiscal year 2015–2016. The total number of inspections relate to the number of regulatees inspected for compliance using the end date of the inspection for the reference period.

Table 14: Number of inspectionstablenotei under CEPA from April 1, 2015, to March 31, 2016
InstrumentTotalOff-siteOn-Site
Canadian Environment Protection Act, 1999 - Total
3,898
1,165
2,733
2-Butoxyethanol Regulations
1
-
1
Benzene in Gasoline  Regulations
136
110
26
CEPA - Sections
112
52
60
CEPA Section 56 Notices – Pollution Prevention Plans
4
-
4
CEPA Section 71 Notices – Toxics
1
1
-
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
60
24
36
Concentration of Phosphorus in Certain Cleaning Products Regulations
7
-
7
Disposal at Sea Regulations
90
35
55
Environmental Emergency Regulations
319
88
231
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
340
29
311
Federal Halocarbon Regulations, 2003
293
182
111
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations
194
-
194
Interprovincial Movement of Hazardous Waste Regulations
17
1
16
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations
21
-
21
National Pollutant Release Inventory
24
6
18
New Substances Notification Regulations (Chemicals and Polymers)
9
1
8
New Substances Notification Regulations (Organisms)
3
1
2
Off-Road Compression-Ignition Engine Emission Regulations
22
1
21
Off-Road Small Spark-Ignition Engine Emission Regulations
50
4
46
On-Road Vehicle and Engine Emission Regulations
3
-
3
Ozone-depleting Substances Regulations, 1998
81
9
72
PCB Regulations
614
108
506
PCB Waste Export Regulations, 1996
1
-
1
Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations
2
1
1
Pulp and Paper Mill Defoamer and Wood Chip Regulations
14
12
2
Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations
15
7
8
Renewable Fuels Regulations
11
2
9
Solvent Degreasing Regulations
11
1
10
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
397
25
372
Sulphur in Diesel Fuel Regulations
117
90
27
Sulphur in Gasoline Regulations
27
1
26
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations
894
373
521
Volatile Organic Compound Concentration Limits for Architectural Coatings Regulations
7
1
6
Volatile Organic Compound Concentration Limits for Automotive Refinishing Products Regulations
1
-
1

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 authorities have determined that prosecution may be the appropriate enforcement action.

Table 15 describes the number of investigations under CEPA for fiscal year 2015–2016.

Table 15: Breakdown of investigationstablenotej from April 1, 2015, to March 31, 2016
InstrumentStarted before fiscal year 2015–2016 and
ongoing at the start of the year
Started in fiscal year
2015–2016
Ended in fiscal year
2015‒2016
Canadian Environment Protection Act, 1999 - Total
87
54
39
CEPA - Section(s)
27
17
12
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
2
-
-
Concentration of Phosphorus in Certain Cleaning Production Regulations
-
1
-
Disposal at Sea Regulations
5
4
1
Environmental Emergency Regulations
4
1
-
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
2
2
3
Federal Halocarbon Regulations, 2003
-
2
1
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations
1
-
-
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations
1
-
1
Off-Road Compression-Ignition Engine Emission Regulations
3
1
1
Off-Road Small Spark-Ignition Engine Emission Regulations
5
-
-
On-Road Vehicle and Engine Emission Regulations
1
1
-
Ozone-depleting Substances Regulations, 1998
5
1
2
PCB Regulations
8
6
4
PCB Waste Export Regulations, 1996
-
1
-
Renewal Fuels Regulations
1
1
-
Solvent Degreasing Regulations
-
-
1
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
11
5
4
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations
11
8
9
Volatile Organic Compound  Concentration Limits for Automotive Refinishing Products Regulations
-
2
-

4.4.3 Enforcement Measures

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

  • warnings to bring an alleged violation to the attention of an alleged offender, so that he or she can return to compliance, if applicable;
  • directions to address or to prevent illegal releases of regulated substances;
  • tickets for certain offences, such as failure to submit written reports;
  • various types of orders, including
    • environmental protection compliance orders (EPCOs) – to put an immediate stop to illegal activity, to prevent a violation from occurring or to require action to be taken;
    • prohibition orders – to prohibit activity involving a substance new to Canadian commerce;
    • recall orders – to recall illegal substances or products from the marketplace;
    • detention orders for ships;
  • injunctions;
  • prosecution under the authority of a Crown prosecutor; and
  • environmental protection alternative measures.

Table 16 sets out the number of enforcement measures under CEPA for fiscal year 2015–2016.

Table 16: Number of Enforcement Measures (inspections and investigations) from April 1, 2015, to March 31, 2016
InstrumentDirectionstablenotekWritten WarningstablenotekNumber of Subjects involved in EPCOstablenotelEPCOstablenotek
Canadian Environment Protection Act, 1999 - Total
2
2,757
88
560
CEPA - Section(s)
-
25
-
-
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
-
23
3
7
Disposal at Sea Regulations
-
6
-
-
Environmental Emergency Regulations
-
524
4
41
Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations
-
116
2
8
Federal Halocarbon Regulations, 2003
-
52
2
7
Gasoline and Gasoline Blend Dispensing Flow Rate Regulations
-
38
2
2
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations
-
54
-
-
National Pollutant Release Inventory
-
6
-
-
Off-Road Compression-Ignition Engine Emission Regulations
-
72
-
-
Off-Road Small Spark-Ignition Engine Emission Regulations
-
96
-
-
On-Road Vehicle and Engine Emission Regulations
-
1
-
-
Ozone-depleting Substances Regulations, 1998
-
6
1
1
PCB Regulations
1
147
20
81
Renewable Fuels Regulations
-
22
-
-
Solvent Degreasing Regulations
-
6
-
-
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
-
1,203
38
360
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations
1
360
16
53

In 2015–2016 there were no injunctions and no ministerial orders (recall orders and prohibition orders); therefore these columns do not appear.

4.5 Prosecutions, Tickets and EPAMs

Prosecutions

For reporting purposes, prosecutions are all instances in which charges were laid against a person (individual, company, or government department). The decision to prosecute is made with due consideration of the factors set out in the Compliance and Enforcement Policy for CEPA (1999) and ultimately rests with the Director of Public Prosecution (DPP) of Canada. 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 can be issued under CEPA, usually where there is minimal or no threat to the environment or human health. Where an 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 (1999), a warning is the appropriate response.

EPAMs

An Environmental Protection Alternative Measure (EPAM) is an agreement that is negotiated 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 17 outlines the number of prosecutions, tickets, and EPAMs under CEPA for fiscal year 2015–2016.

Table 17: Number of Prosecutions and new EPAMs from April 1, 2015, to March 31, 2016
InstrumentTicketsCharges laid in fiscal year 2015–2016
Prosecuted Subjectstablenotem
Charges laid in fiscal year 2015–2016
Countstablenoten
Concluded in fiscal year 2015–2016
Convicted Subjectstablenoteo
Concluded in fiscal year 2015–2016
Guilty Countstablenoten
EPAMstablenotep
Canadian Environment Protection Act, 1999 - Total
53
16
28
24
46
6
CEPA - Section(s)
1
7
11
9
16
1
Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
5
-
-
-
-
3
Disposal at Sea Regulations
-
1
1
-
-
-
Environmental Emergency Regulations
-
1
1
1
1
-
Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations
-
-
-
1
2
-
Ozone-depleting Substances Regulations, 1998
2
-
-
-
-
-
PCB Regulations
4
2
4
1
2
2
Solvent Degreasing Regulations
-
-
-
1
2
-
Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations
-
1
1
1
1
-
Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations
41
3
9
8
21
-
Volatile Organic Compound Concentration Limits for Automotive Refinishing Products Regulations
-
1
1
1
1
-

4.6 Enforcement Highlights

Storage Tank Systems for Petroleum Products

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations establish technical standards for the design and installation of storage tank systems in order to reduce the risk of contaminating soil and groundwater as a result of spills and leaks of petroleum products and allied petroleum products from storage tank systems.

In 2014, 331 petroleum products storage tank systems were identified as being at high risk of leaking and contaminating soil and groundwater. A project was launched to address the issue. At the end of March 2016, 86% (283 systems of 331) had been inspected. Of those, 60% (169 of 283) were either in compliance with the regulations, or had returned to compliance. During the reporting period, 40 written warnings and 33 environmental protection compliance orders were delivered under this project. The work continues to ensure the remaining systems will be inspected and returned to compliance by the end of 2017.

Polychlorinated Biphenyls (PCBs)

PCBs are persistent, toxic substances that pose a risk to human health and the environment; and are therefore on the List of Toxic Substances in Schedule 1 of CEPA. The PCB Regulationsset specific deadlines for ending the use of PCBs in concentrations at or above 50 mg/kg, eliminating all PCBs and equipment containing PCBs currently in storage, and limiting the period of time PCBs can be stored before being destroyed.

Equipment with PCB concentrations greater than 500 mg/kg, were set to be removed from service and sent to be destroyed by December 31, 2014. In 2015–2016, inspections were conducted at 44 companies to ensure that this equipment had been removed and destroyed or on its way to being destroyed. By March 2016, confirmation had been received regarding the removal and destruction of equipment at 89% of the facilities. Follow up will occur in fiscal year 2016–2017 to ensure compliance with the regulations at the remaining facilities.

Dry Cleaning

Tetrachloroethylene, also known as perchloroethylene and commonly called PERC or PCE, is a chemical used in Canadian dry cleaning. PERC is on the List of Toxic Substances in Schedule 1 of the Act as it poses a risk to environmental and human health. ECCC has developed the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations (“PERC Regulations”) to reduce the release of PERC to the environment from dry cleaning facilities.

Since 2012–2013, ECCC has been working on a compliance rate project for tetrachloroethylene. In 2012–2013, inspections were conducted at 216 facilities, and the compliance rate with the environmental provisions of the regulations was found to be 51%. The project’s objective was a ten percent increase from 2012–2013 levels. In 2013–2014 and 2014–2015, the Department conducted an intensive campaign to increase regulatees’ awareness of the regulations.

In 2015–2016, 325 facilities were inspected. The result was a 63% compliance rate with the environmental provisions of the Regulations, yielding an increase of 11%.

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. ECCC also engages in cooperative activities with its counterparts at the U.S. Environmental Protection Agency (EPA) and Mexico's PROFEPA (Federal Attorney for Environmental Protection) and SEMARNAT (Secretariat of Environment and Natural Resources) under the umbrella of the Commission for Environmental Cooperation’s Enforcement Working Group (EWG). In addition, ongoing bilateral cooperation between the U.S. EPA and ECCC Enforcement supports both countries’ domestic mandates, particularly in the area of cross border environmental crime.

 
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