Expanding administrative penalties for environmental contraventions

Update - November 9, 2023

As a result of the serious compliance concerns arising with certain landfills in the landfill sector, we are moving forward with expanding the existing environmental penalties framework to open and closed landfilling sites with an approved capacity of 40,000 m³ or more, so that this important compliance tool can be used to resolve incidents swiftly in that sector. However, this is just a first step in MECP’s plan to continue to implement the Winter 2022 proposal to expand administrative monetary penalties as a compliance tool.

See our Bulletin on Amendments to O. Reg. 222/07: Environmental Penalties for details.

Previous Updates (March 11, 2023):

We updated the notice to incorporate amendments to the contraventions for which an administrative penalty order may be issued. Specifically, this update incorporates amendments to the contravention classification details for O. Reg. 530/18 and provides contravention classification details for a new regulation, O. Reg. 88/22.

“Classification of Contraventions for Administrative Penalties” changes:

• O. Reg. 530/18 table under the Environmental Protection Act has been updated
• New table for O. Reg. 88/22 under the Environmental Protection Act has been added.

“Consultation Guide on Proposed Regulations for the Expansion of Administrative Penalties” changes:

• The description for Table 4 in Appendix 1 has been modified
• The last row in Column 2 of Table 4, 6, and 7 in Appendix 1 has been modified
• The description for Table 5 in Appendix 1 has been modified
• Table 8, Table 9, and Table 10 have been added to Appendix 1 for specific Type LE air-related contraventions

The updated documents are available in the ‘Supporting materials’ section of the notice.

Ontario’s top priorities include ensuring the protection of human health and the natural environment. We take environmental violations very seriously and we are committed to holding heavy polluters accountable. We are strengthening our enforcement tools which will allow us to continue holding polluters accountable and ensure compliance with environmental laws that help protect and preserve our air, land and water.

We are proposing changes that will expand the use of administrative penalties to a broader range of environmental violations, which will help us take stronger action against illegal activity and create a more effective enforcement system

Overview

In 2019, legislative amendments were made as part of Bill 108 (More Homes, More Choices Act, 2019) and Bill 132 (Better for People, Smarter for Business Act, 2019) so that administrative penalties could be issued for contraventions for the following listed acts (“listed MECP acts”):

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

We’re now proposing that a regulation be made under each of these MECP acts. The regulation would set out the contraventions for which an administrative penalty order may be issued as well as the rules for how a penalty will be determined for a contravention. Our proposal for this regulation would:

• expand our ability to issue administrative penalties for a broader range of contraventions
• provide our front-line staff with stronger tools to better enforce Ontario’s environmental laws

We consulted with stakeholders through virtual engagement sessions in spring 2021 on implementing the expanded administrative penalty framework and considered their feedback in developing the current proposal. You can read details on the proposed regulations by accessing the “Consultation Guide on proposed regulations for the expansion of Administrative penalties”.

Money collected from penalties goes to support the Ontario Community Environment Fund. This grant program redirects penalties paid by polluters to important, community-based activities like:

• environmental restoration and remediation projects
• projects that build resilient communities and provide local solutions to environmental issues

Proposed regulations to expand administrative penalties

We are proposing five regulations (one under each act below) so that administrative penalties can be issued for environmental contraventions:

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

The proposed regulations have been presented in a plain language format to make the content more accessible for stakeholders and the public. The plain language format includes all the components of the technical regulations, as well as general guidance on how the components work together. The proposed regulations have been combined into one (1) document due to similarities between the regulations.

The proposed penalty regulations under the Environmental Protection Act and the Ontario Water Resources Act would revoke and replace existing penalty regulations under these acts.

We are also proposing to develop an administrative penalty guidance document to provide more clarity and consistency on applying the administrative penalty framework.

A ministry Director or provincial officer may issue an administrative penalty as guided by the compliance policy.

The proposed regulations and guidance document will provide information about:

• the circumstances when a provincial officer can issue an administrative penalty
• the process and rules for determining a penalty, including how the gravity component of a penalty (to reflect the seriousness of the contravention) and the economic benefit component (to remove any economic gain from non-compliance) would be determined
• the circumstances when a person who pays a penalty cannot be prosecuted for the same contravention
• penalty amounts for corporations and individuals who commit a contravention
• circumstances when an employee, Director, officer or agent of a corporation may be issued a penalty where the contravention is committed by the corporation
• the process for issuing an administrative penalty order, including the requirement to issue a notice of intention and the circumstances where such a notice is not required before issuing an administrative penalty order advanced notice (notice of intention)
• payment procedures

You can read more information about the processes for issuing administrative penalty orders, the broad range of environmental contraventions that will be subject to penalties and how penalties will be determined for a contravention in the “Consultation Guide on proposed regulations for the expansion of Administrative penalties” attached to the Supporting Materials section of this notice.

The new administrative penalty framework:

• provides a single consistent approach to administrative penalties across the ministry’s compliance and enforcement activities
• incorporates feedback from engagement sessions

Updates to the ministry’s compliance policy

We are proposing to update the ministry’s compliance policy, specifically the compliance approach and compliance tools section, to incorporate the proposed administrative penalties. Updates to the compliance policy were recently posted on the Environmental Registry (Modernizing environmental compliance practices of the Ministry of the Environment, Conservation and Parks).

The proposed changes to the compliance policy include:

• adding a description of Director and provincial officer administrative penalties and appeal provisions to the compliance tools
• replacing references to environmental penalties with administrative penalties throughout the document

Details are in the “Consultation Guide on proposed regulations for the expansion of Administrative penalties” attached to the Supporting Materials section of this notice.

Summary of stakeholder engagement findings

In May 2021, we conducted four virtual engagement sessions to support the development of the new administrative penalties. There were 165 registrants for the sessions, including:

• industry representatives
• the agricultural sector
• environmental groups
• municipalities
• others (some individuals and consultants)

There was general support for expanding administrative penalties to more contraventions and to the entire regulated community. For more information see “Stakeholder engagement summary” attached to the Supporting Materials section of this notice.

Consequential amendments

We are proposing the following consequential amendments under the Environmental Protection Act:

• O. Reg. 675/98 - CLASSIFICATION AND EXEMPTION OF SPILLS AND REPORTING OF DISCHARGES will be updated to provide for electronic reporting regarding certain spills. At the moment the regulation requires that all reports regarding spills be made by phoning the Spills Action Centre. The reporting will also be amended to require all persons reporting spills to indicate if the pollutant spilled contains a toxic substance.

• O. Reg. 224/07 - SPILL PREVENTION AND CONTINGENCY PLANS will be amended to ensure the regulation continues to apply to those persons who own or operate plants that meet or met the criteria for environmental penalties as the environmental penalty regulations are being revoked. These are plants in nine industrial sectors – which are currently subject to the environmental penalty regulations.

We are also proposing consequential amendments to under the Safe Drinking Water Act, 2002:

• O. Reg. 242/05 - COMPLIANCE AND ENFORCEMENT will be amended by adding an administrative penalty as a type of mandatory action provincial officers can take in response to finding a deficiency during an inspection of a municipal residential drinking water system or finding an infraction at a licensed or eligible laboratory.

Analysis of regulatory impact

A key commitment is to hold polluters accountable with tougher penalties. Our objective for developing administrative penalties is to deter illegal behaviour (e.g. spills to land or waterways, exceeding discharging limits for pollutants to the air or waterways, failing to obtain a permit or approval as required), improve environmental outcomes, and hold polluters accountable in a cost-effective manner, so there is less burden on the courts and taxpayers. The broader use of administrative penalties will also help level the playing field between violators and those acting responsibly and allow the ministry to take strong action against illegal activity, especially for repeat offenders.

Penalties will not impose any new regulatory burden or costs on businesses, municipalities, universities, schools, hospitals, and non-profit organizations who follow the province’s environmental laws.