Vol. 145, No. 27 — July 2, 2011

ARCHIVED — Regulations Concerning the Designation of Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999)

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Environmental Enforcement Act (EEA), which received Royal Assent on June 18, 2009, introduces a new penalty scheme to be applied by courts following a successful prosecution under any of the nine environmental statutes (see footnote 1) it amends. Under the scheme, offences involving direct harm or risk of harm to the environment or obstruction of authority are subject to a new, higher fine range.

While the EEA explicitly identifies the statutory provisions that, if contravened, would attract the highest fines, it does not identify which provisions of regulations made under those statutes would, if contravened, attract the highest fines. Instead, the EEA amends the environmental statutes to provide authority to identify such provisions by regulation. The proposed Regulations Concerning the Designation of Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) [the proposed Regulations] have been developed pursuant to those authorities. The proposed Regulations complete the new penalty scheme established by the EEA for the Canadian Environmental Protection Act, 1999 (CEPA 1999) and ensure that successful prosecution of offences involving harm or risk of harm to the environment or obstruction of authority would result in the highest fines — regardless of whether they stem from statutory or regulatory provisions.

Description and rationale

Historically, fines imposed by courts following successful prosecutions for offences under several federal environmental acts tend to be much lower than the maximum fines available. In some cases, fines are lower than associated costs of compliance and therefore have not provided the necessary incentive to comply. The penalty scheme introduced by the EEA is meant to address this issue by introducing the fine scheme outlined in Table 1 for the most serious offences. The fine scheme includes, for the first time, minimum fines for offences that involve direct harm or risk of harm to the environment or obstruction of authority.

Table 1: Fines for designated offences

offender	Summary Conviction		Indictment
OFFENDER	Min	Max	Min	Max
Individual	$5,000	$300,000	$15,000	$1,000,000
Small corporation, ship under 7 500 tonnes	$25,000	$2,000,000	$75,000	$4,000,000
Corporation, ship over 7 500 tonnes	$100,000	$4,000,000	$500,000	$6,000,000

A contravention of a regulatory provision designated under the proposed Regulations would not necessarily lead to a prosecution. Rather, the enforcement tools to be applied to a given contravention would continue to be determined by the enforcement officer (and the prosecutor in some cases) based on a consideration of what is most appropriate in the circumstances of the contravention. In cases involving minor situations of non-compliance, a warning, compliance order, ticket or administrative monetary penalty (see footnote 2) may be appropriate and, in those cases, the fine scheme outlined above would not apply. In cases involving a serious level of non-compliance, however, prosecution may be the proper avenue for enforcement purposes. In such cases, the penalty scheme outlined above would apply in the event of a conviction.

The proposed Regulations

The policy test used to identify the provisions of CEPA 1999 that, if contravened, would attract the fine range outlined in Table 1 was also used to identify which regulatory provisions would be designated by the proposed Regulations; those provisions that, if contravened, would involve direct harm or risk of harm to the environment or obstruction of authority.

Several regulatory provisions made under CEPA 1999 have been identified as meeting the policy test. These provisions will be designated and listed in the proposed Regulations. For example, the proposed Regulations designate subsection 2(1) of the 2-Butoxyethanol Regulations, which prohibits, except in specified circumstances, a person from manufacturing or importing specified products if their concentration of 2-butoxyethanol exceeds specified limits.

The proposed Regulations neither amend any existing obligations nor impose any new obligations on a regulated person. As a result, no incremental costs are expected for regulatees or government. The proposed Regulations are expected to yield greater compliance by completing the penalty scheme introduced by the EEA for CEPA 1999.

Consultation

The proposed Regulations would implement authorities provided for by the EEA. Because the proposed Regulations involve the same principles applied by the EEA and would not result in any incremental compliance costs for interested parties, no formal consultations on the proposed Regulations were held.

Notification of the publication of the proposed Regulations in the Canada Gazette, Part I, will be sent to key stakeholders to ensure they are aware of the publication and of the 60-day period within which to make comments on the proposed Regulations. Notification will also be sent to the CEPA National Advisory Committee.

Implementation, enforcement and service standards

The proposed Regulations would complete the application of the penalty scheme for CEPA 1999 which was introduced by the EEA. The proposed Regulations ensure that the court-imposed fines for offences involving direct harm or risk of harm to the environment or obstruction of authority act as strong deterrents. Given that the proposed Regulations would not impose any additional obligation or requirements on interested parties, they would not result in the development of any new program or service. Therefore, the development of an implementation plan, an enforcement strategy and service standards is not necessary.

Contacts

Sarah Cosgrove
Manager
Legislative Advice Unit
Legislative Governance Division
Environment Canada
351 Saint-Joseph Boulevard, 21st Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-5786
Fax: 819-997-9806
Email: sarah.cosgrove@ec.gc.ca

Markes Cormier
Senior Economist
Regulatory Analysis and Instrument Choice Division
Environment Canada
10 Wellington Street, 24th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-5236
Fax: 819-997-2769
Email: Markes.cormier@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Governor in Council proposes to make the annexed Regulations Concerning the Designation of Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) pursuant to section 286.1 (see footnote c) of that Act.

Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent by mail to the Executive Director, Legislative Governance, Department of the Environment, Gatineau, Quebec K1A 0H3, by fax to 819-997-9806 or by email to legis.gov@ec.gc.ca. A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, June 23, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS CONCERNING THE DESIGNATION OF REGULATORY PROVISIONS FOR PURPOSES OF ENFORCEMENT (CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999)

2-Butoxyethanol Regulations

1. (1) The following provisions of the 2-Butoxyethanol Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) subsection 2(1);
  
• (b) section 3; and
  
• (c) subsection 4(1).
  

Asbestos Mines and Mills Release Regulations

(2) Subsection 3(1) of the Asbestos Mines and Mills Release Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Benzene in Gasoline Regulations

(3) The following provisions of the Benzene in Gasoline Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) sections 3 and 4;
  
• (b) subsection 13(5);
  
• (c) subsections 16(1) and (7); and
  
• (d) subsection 17(1).
  

Chlor-Alkali Mercury Release Regulations

(4) Subsections 3(1) and (3) of the Chlor-Alkali Mercury Release Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations

(5) Subsection 3(1) of the Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Contaminated Fuel Regulations

(6) Section 3 of the Contaminated Fuel Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Federal Halocarbon Regulations, 2003

(7) Section 3 of the Federal Halocarbon Regulations, 2003 is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Federal Mobile PCB Treatment and Destruction Regulations

(8) The following provisions of the Federal Mobile PCB Treatment and Destruction Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) sections 5 and 6;
  
• (b) subsection 7(1); and
  
• (c) sections 8 and 9.
  

Gasoline and Gasoline Blend Dispensing Flow Rate Regulations

(9) Section 3 of the Gasoline and Gasoline Blend Dispensing Flow Rate Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Ozone-depleting Substances Regulations, 1998

(10) The following provisions of the Ozone-depleting Substances Regulations, 1998 are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) sections 4 and 5;
  
• (b) subsection 6(1);
  
• (c) subsection 7(1);
  
• (d) subsections 8(1), (2) and (3.1);
  
• (e) section 9;
  
• (f) sections 18 and 19;
  
• (g) subsection 21(1);
  
• (h) section 22;
  
• (i) subsections 23(1) and (2);
  
• (j) subsection 24(1);
  
• (k) sections 25 and 26;
  
• (l) subsection 27(1);
  
• (m) section 28;
  
• (n) subsection 29(1); and
  
• (o) section 30.
  

PCB Regulations

(11) Sections 5 and 6 of the PCB Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

PCB Waste Export Regulations, 1996

(12) The following provisions of the PCB Waste Export Regulations, 1996 are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) section 3; and
  
• (b) section 11.
  

Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations

(13) Section 4 of the Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Polybrominated Diphenyl Ethers Regulations

(14) The following provisions of the Polybrominated Diphenyl Ethers Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) section 6; and
  
• (b) subsection 7(1).
  

Prohibition of Certain Toxic Substances Regulations, 2005

(15) Sections 4 and 5 of the Prohibition of Certain Toxic Substances Regulations, 2005 are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Pulp and Paper Mill Defoamer and Wood Chip Regulations

(16) Section 4 of the Pulp and Paper Mill Defoamer and Wood Chip Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations

(17) Subsection 4(1) of the Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Secondary Lead Smelter Release Regulations

(18) Sections 3 and 4 of the Secondary Lead Smelter Release Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Solvent Degreasing Regulations

(19) Subsection 3(1) of the Solvent Degreasing Regulations is designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations

(20) The following provisions of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) section 3;
  
• (b) sections 5 to 8;
  
• (c) subsection 9(1);
  
• (d) subsection 10(1);
  
• (e) sections 11 and 12;
  
• (f) subsection 15(1); and
  
• (g) subsection 40(1).
  

Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations

(21) The following provisions of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) sections 3 to 5;
  
• (b) section 7; and
  
• (c) section 10.
  

Tributyltetradecylphosphonium Chloride Regulations

(22) Sections 3 and 4 of the Tributyltetradecylphosphonium Chloride Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Vinyl Chloride Release Regulations, 1992

(23) Subsections 4(1) to (4) of the Vinyl Chloride Release Regulations, 1992 are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999.

Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations

(24) The following provisions of the Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) subsection 3(1);
  
• (b) subsection 4(1);
  
• (c) subsection 5(1); and
  
• (d) subsection 9(1).
  

Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations

(25) The following provisions of the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations are designated for the purposes of paragraph 272(1)(h) of the Canadian Environmental Protection Act, 1999:

• (a) subsections 3(1) and (2); and
  
• (b) subsection 4(1).
  

COMING INTO FORCE

Section 80 of the Environmental Enforcement Act

2. These Regulations come into force on the day on which section 80 of the Environmental Enforcement Act, chapter 14 of the Statutes of Canada 2009, comes into force, but if these Regulations are registered after that day, they come into force on the day on which they are registered.

[27-1-o]

Footnote 1
Canadian Environmental Protection Act, 1999, Antarctic Environmental Protection Act, Canada Wildlife Act, International River Improvements Act, Migratory Birds Convention Act, 1994, Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, Canada National Parks Act, Canada National Marine Conservation Areas Act, Saguenay-St. Lawrence Marine Park Act.

Footnote 2
It is expected that proposed regulations pursuant to the Environmental Violations Administrative Monetary Penalties Act (EVAMPA) will be developed at a later stage to implement an administrative monetary penalty scheme.

Footnote a
S.C. 2004, c. 15, s. 31

Footnote b
S.C. 1999, c. 33

Footnote c
S.C. 2009, c. 14, s. 80