Holding polluters accountable by expanding the use of administrative monetary penalties for environmental contraventions

ERO number
019-0750
Notice type
Act
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Notice stage
Decision
Decision posted
Comment period
October 28, 2019 - November 27, 2019 (30 days) Closed
Last updated

This consultation was open from:
October 28, 2019
to November 27, 2019

Decision summary

We are delivering on our Made-in-Ontario Environment Plan commitment to hold polluters accountable by moving forward with the use of administrative monetary penalties to create more efficient, effective and fair environmental enforcement. Funds collected will be used to support environmental improvement activities.

Decision details

The changes will introduce, expand and/or clarify the government’s authority to issue penalties for environmental contraventions under key environmental statutes, including:

  • Nutrient Management Act, 2002
  • Ontario Water Resources Act
  • Pesticides Act
  • Safe Drinking Water Act, 2002

These changes will:

  • address gaps in the ministry’s compliance and enforcement toolkit, and enable us to expand the use of administrative monetary penalties that could be issued for environmental contraventions, if and when they occur
  • provide us with one consistent approach to administrative monetary penalties across statutes, including the Environmental Protection Act as recently amended under Bill 108 (More Homes, More Choices Act, 2019)
  • better protect our communities, and keep our air, land and water clean and healthy

To ensure a seamless transition from the existing administrative monetary penalties (i.e. environmental penalties) to the new framework, changes to the Environmental Protection Act and the Ontario Water Resources Act will be proclaimed at a later date when regulations are proposed and finalized.

We expect consultation and stakeholder engagement on a proposal to implement administrative monetary penalties, including draft regulations, to occur in 2020.

The funding program modeled on the Ontario Community Environment Fund program will be launched in 2020 and will better support activities that implement the Made-in-Ontario Environment Plan (e.g. litter clean up, tree planting, habitat restoration, and flood prevention).

Comments received

Through the registry

47

By email

18

By mail

0
View comments submitted through the registry

Effects of consultation

We received a total of 65 comments from a wide range of stakeholders including:

  • members of the public (44 submissions)
  • industry associations (5 submissions)
  • agricultural sector (6 submissions)
  • environmental non-governmental organizations (3 submissions)
  • first Nations (1 submission)
  • municipal sector (4 submissions)
  • conservation authorities (2 submissions)

Below is a summary of the comments received and how we considered them in our decision.

  • Stakeholders and the public generally support the concept of administrative monetary penalties, but had concerns with regards to its implementation. There was also support using the funds collected from the penalties to support environmental improvement activities.

Stakeholders raised the following six concerns, to which responses are provided below:

  1. There was insufficient consultation before the release of the proposal
  2. Maximum penalty amounts should be per day, not per contravention
  3. Government should retain and expand the “reverse onus” provisions
  4. Concerns with the ability of Provincial Officers to issue penalties without Director sign-off
  5. Does not support the use of administrative monetary penalties for lower risk contraventions
  6. Government should retain and expand the five-year review of

administrative monetary penalties

1. Insufficient consultation before the release of the proposal

Stakeholders were critical of the lack of consultations before the proposal was released.

Response

We initially consulted with Ontarians on strengthening the ministry’s compliance and enforcement toolkit via the Made-in-Ontario Environment Plan. We heard that Ontarians supported stronger measures to protect our communities and our environment. There was also stakeholder support for broadening the enabling authority for administrative monetary penalties under the Environmental Protection Act, as recently amended by Bill 108 (More Homes, More Choices Act, 2019).

We will engage with stakeholders in 2020 on the development and implementation of these administrative monetary penalties, before releasing draft regulations.

2. Maximum penalty amounts should be per day, not per contravention

Some stakeholders and members of the public were concerned that the legislative amendments that were proposed will lower the maximum penalty amounts by using maximum amounts that are per contravention instead of a per day maximum.

Response

We are not lowering any penalties. Currently, the ministry is not permitted to issue existing administrative monetary penalties (i.e. environmental penalties) for many contraventions and can only issue them to 140 facilities in certain industrial sectors. This was a gap in the ministry’s compliance and enforcement toolkit, which is why we are making changes to expand the suite of contraventions these penalties could be applied to and who they could be issued to, via regulation.

Unlike the current administrative monetary penalties, if the economic benefit associated with the contravention exceeds the statutory maximum penalty amount – the penalty can exceed this maximum in order to recover the full economic benefit the violator incurred.

However, if the ministry determines the contravention warrants prosecution, the ministry reserves the right to take offenders to court, even if a penalty has been issued. If a contravention warrants a prosecution and an entity is convicted, it can face a fine and other consequences, e.g. court order, in addition to any penalty that is issued.

The new administrative monetary penalty regime would be an added tool in our compliance and enforcement toolkit to be used alongside orders and prosecution. We are increasing the options for the ministry’s compliance officers to get violators into compliance.

3. Government should retain and expand the “reverse onus” provisions

Some stakeholders were concerned that the administrative monetary penalties framework that was proposed did not include “reverse onus” provisions, where the onus is on the violator to prove the contravention did not occur.

Response

When a regulatory agency or body acts to seek compliance from a violator, under general legal principles, the onus falls on the regulator to prove the elements of the contravention. It generally is seen as unfair for a law to reverse the onus and require violators to show the contravention did not occur in order to escape the consequence for a contravention.

In the existing administrative monetary penalties regime (i.e. environmental penalty) under the Environmental Protection Act, the onus was on the violator to demonstrate that the contravention did not occur, e.g. did not cause adverse effect. This is not consistent with general legal principles.

Because existing regulations and approvals require the regulated community to report certain contraventions to the ministry, such as spills and discharges in excess of standards set out in a regulation, approval or order, reverse onus was often irrelevant under the environmental penalties regime because the violator already had to report the contravention. As such, the new administrative monetary penalties framework uses general legal principles while at the same time providing a fast and efficient tool to seek compliance from violators.

4. Concerns with the ability of Provincial Officers to issue penalties without Director sign off.

Some stakeholders were concerned that the legislation that was proposed will allow Provincial Officers to issue administrative monetary penalties, in addition to Directors.

Response

The legislation provides the enabling authority for Provincial Officers to issue administrative monetary penalties in circumstances to be prescribed in regulation. Implementation of this aspect of the administrative monetary penalties framework would be laid out in regulations and in supporting documents (e.g. the ministry’s Compliance Policy, guidance on the use of administrative monetary penalties) which will identify if, where and how Provincial Officers may issue a penalty.

The ministry plans to update its Compliance Policy according to best practices and to reflect the expansion of administrative monetary penalties. The Compliance Policy provides guidance to front-line provincial officers on how to respond to incidents of varying degrees of risk. The Compliance Policy helps the officer select a compliance tool (education, ticket, administrative monetary penalty, etc.) based on their assessment of the incident, the violator’s compliance history, and the potential for, or real harm caused to the environment.

Training for compliance staff will also be implemented on the updated administrative monetary penalty tool, including how and when to use it. Monitoring of how the tool is being used will also be conducted to promote consistent application across the province.

5. Does not support the use of administrative monetary penalties for lower risk contraventions.

Some stakeholders indicated that they do not support the use of administrative monetary penalties for lower risk contraventions (e.g. administrative).

Response

We will engage with stakeholders in 2020 on the development of administrative monetary penalties for environmental contraventions, before releasing draft regulations.

6. Government should retain and expand the five-year review of administrative monetary penalties

Some stakeholders were concerned that the administrative monetary penalties framework that was proposed did not include a five-year review, which is included in the existing administrative monetary penalties regime (i.e. environmental penalties).

Response

We will publish an annual report detailing administrative monetary penalties issued in the previous calendar year. These reports provide information about the penalties issued to violators, including the corporation or individual’s name, where the contravention occurred, the amount of the penalty, and a description of the contravention.

This annual report will be posted on the province’s open data website to ensure the transparency and integrity of the new regime. This approach puts the people first by adopting a digital first approach to deliver simpler, faster and better services to Ontarians. The five-year review was deemed not essential in light of the annual report.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Compliance, Planning and Spills Action Centre
Address

135 St. Clair Ave. West
8th Floor
Toronto , ON
M4V 1P5
Canada

Office phone number

Connect with us

Contact

André Martin

Phone number
Email address
Office
Compliance, Planning and Spills Action Centre
Address

135 St. Clair Ave. West
8th Floor
Toronto , ON
M4V 1P5
Canada

Office phone number

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Original proposal

ERO number
019-0750
Notice type
Act
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Proposal posted

Comment period

October 28, 2019 - November 27, 2019 (30 days)

Proposal details

This proposal notice is part of the proposal for the Better for People, Smarter for Business Act.

The Ministry of the Environment, Conservation and Parks needs changes to its compliance and enforcement toolkit to strengthen enforcement and compliance with laws that protect our:

  • air
  • drinking water
  • water resources
  • land

The ministry is responsible for ensuring compliance with Ontario’s environmental laws and enforcing them when needed.

The Made-in-Ontario Environment Plan includes a commitment to holding polluters accountable with real consequences and penalties. This proposal aims to deliver on this commitment and allow us to take strong action against those who break environmental laws.

We are also working to remove regulatory overlap and develop regulations that are focused and streamlined – maintaining the high standards Ontario is known for.

We are about doing things better, safer and stronger.

Administrative monetary penalties in Ontario

An administrative monetary penalty is a financial penalty for non-compliance that provides an incentive to the violator to:

  • return to compliance
  • deter future non-compliance

Administrative penalties are used across the Government of Ontario in regulated program areas such as:

  • forestry
  • consumer protection
  • energy
  • private colleges
  • waste diversion
  • retirement homes

Administrative monetary penalties are regularly used in other jurisdictions, particularly Canada and the United States, to support the enforcement of environmental laws (e.g. British Columbia, Alberta, Canada, Quebec, Ohio, Vermont and Minnesota).

Administrative monetary penalties, as a compliance and enforcement tool (i.e. environmental penalties), are currently available to the ministry for some land, water and air violations, but are limited in scope. This gap leaves many program areas with limited enforcement tools and affects the ministry’s ability to effectively hold polluters accountable.

In addition, some of the acts proposed to be amended that are enforced by the ministry do not have the enabling authority to issue administrative monetary penalties (e.g. Safe Drinking Water Act, Pesticides Act), while others are out of step with best practice (e.g. Nutrient Management Act, 2002).

To address these issues, the proposal aims to:

  • address gaps in the ministry’s compliance and enforcement toolkit
  • create one consistent approach to administrative monetary penalties for environmental violations
  • better protect our communities
  • improve environmental conservation
  • keep our air, land and water clean and healthy

Proposed legislative amendments

We are proposing legislative amendments to introduce, expand and/or clarify enabling authority to issue administrative monetary penalties for environmental violations under key environmental statutes, including:

  • Nutrient Management Act, 2002
  • Ontario Water Resources Act
  • Pesticides Act
  • Safe Drinking Water Act, 2002

The enabling authority to issue administrative monetary penalties would be similar to that of the Environmental Protection Act as recently amended under Bill 108 (More Homes, More Choices Act, 2019).

The proposed amendments would enable administrative monetary penalties to be issued for a broad range of environmental violations under the acts mentioned above. To take effect, violations that may be subject to an administrative monetary penalty would be prescribed in regulation.

The proposal, along with recent amendments to the Environmental Protection Act, would replace existing monetary penalties (i.e. environmental penalties) under the Environmental Protection Act and Ontario Water Resources Act.

Key provisions under the proposed administrative monetary penalty approach are set out under each act and include:

  • set maximum penalty amounts or higher if the economic benefit achieved via the violation was higher (penalty amounts would be set by a regulation). The maximum penalty amounts set in the acts are as follows:
    1. Ontario Water Resources Act - $200,000 per contravention (same as the Environmental Protection Act)
    2. Pesticides Act - $100,000 per contravention
    3. Safe Drinking Water Act, 2002 - $100,000 per contravention
    4. Nutrient Management Act, 2002 - $10,000 per contravention
  • ability to review and/or appeal the administrative penalty
  • an annual report listing the administrative penalties issued in the last calendar year
  • provisions to enable the implementation of administrative monetary penalties in regulation (e.g. how to set administrative monetary penalty amounts, who they can apply to, and how violators can seek reductions in penalty amounts for taking action to prevent or mitigate the contravention

The broader use of administrative monetary penalties would help us:

  • take strong action against illegal activity
  • ensure that polluters are accountable for their actions with a system that is tough but fair, cost-effective and flexible to the needs and circumstances of our province
  • deal with environmental violations that do occur, more efficiently and appropriately

Prosecution would continue to be used as an enforcement tool but may be limited to serious violations.

The proposed amendments, if enacted, would not impose any new regulatory burden or costs on Ontarians who follow the province’s environmental laws. If implemented, the proposal would provide:

  • increased efficiency of enforcement and compliance activities
  • improved ability to hold polluters responsible

The intended outcomes of the proposal include:

  • leveling the playing field between those acting responsibly and violators by removing potential economic benefits associated with breaking Ontario’s environmental laws
  • increasing overall compliance with Ontario’s environmental laws
  • reducing illegal activity that may pose environmental or health risks to Ontarians

If passed, these proposed legislative amendments would allow for future regulations to implement administrative monetary penalties to more violations, such as, but not limited to:

  • illegal sewage discharges into waterways
  • selling pesticides without a license
  • failing to have a certified drinking water operator
  • violating terms of a permit to take water

Funding program

As part of the proposal, funds collected from the payment of administrative monetary penalties under the Environmental Protection Act, the Nutrient Management Act, 2002, the Ontario Water Resources Act, the Pesticides Act, and the Safe Drinking Water Act, 2002 would be directed to an existing dedicated account under the Environmental Protection Act that currently collects funds from environmental penalty violations.

If implemented, the proposal would revise the account to allow the funds to be used for activities that implement the Made-in-Ontario Environment Plan (e.g. clean up, tree planting, habitat restoration, and flood prevention).If the changes are enacted the funds would be made available to eligible organizations under a relaunched Ontario Community Environment Fund program, with a broader focus to support local communities in conducting environmental improvement activities.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Compliance, Planning and Spills Action Centre
Address

135 St. Clair Ave. West
8th Floor
Toronto , ON
M4V 1P5
Canada

Office phone number

Comment

Commenting is now closed.

This consultation was open from October 28, 2019
to November 27, 2019

Connect with us

Contact

André Martin

Phone number
Email address
Office
Compliance, Planning and Spills Action Centre
Address

135 St. Clair Ave. West
8th Floor
Toronto , ON
M4V 1P5
Canada

Office phone number