SOR/2017-109: Environmental Violations Administrative Monetary Penalties Regulations Environmental Violations Administrative Monetary Penalties Act
REGISTRATION OF FEDERAL REGULATION - VIA PART II OF THE GAZETTE
June 2, 2017
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Currently, federal legislation administered by the Department of the Environment (the Department) is enforced using a variety of measures, including written warnings, tickets, compliance orders and prosecution. However, these enforcement measures may not always effectively encourage compliance or deter fu... (Click for more)
Published on June 15, 2017
SOR/2017-109: Environmental Violations Administrative Monetary Penalties Regulations Environmental Violations Administrative Monetary Penalties Act
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Currently, federal legislation administered by the Department of the Environment (the Department) is enforced using a variety of measures, including written warnings, tickets, compliance orders and prosecution. However, these enforcement measures may not always effectively encourage compliance or deter future non-compliance in all circumstances. Written warnings may not be sufficient to promote ongoing compliance, while prosecution might be too severe. Tickets issued under the Contraventions Act are available only for designated contraventions and only in provinces where an implementation agreement has been signed by the federal and provincial governments. (see footnote 1) Background The Environmental Violations Administrative Monetary Penalties Act (EVAMPA) was enacted by section 126 of the Environmental Enforcement Act (EEA) and came into force on December 10, 2010. (see footnote 2) In addition to creating the authority for an administrative monetary penalties (AMPs) regime, the EEA also modernized and harmonized the fine regimes and sentencing provisions of nine Acts under the responsibility of the Minister of the Environment. (see footnote 3) The purpose of EVAMPA is to establish a fair and efficient system of AMPs. AMPs encourage greater compliance and have become an increasingly common feature of federal and provincial enforcement regimes in Canada. AMPs provide a financial disincentive to non-compliance with designated legislative requirements and are an administrative alternative to other enforcement measures, which may not be effective or available in all situations. AMPs are intended to be a supplement to existing enforcement measures. A regulated party cannot be subject to both an AMP and prosecution for the same violation, and an AMP carries no possibility of imprisonment. Objectives The objective of the Environmental Violations Administrative Monetary Penalties Regulations (the Regulations) is to implement an AMPs regime applicable to specified legislation administered by the Department, in order to give enforcement officers a new tool to help achieve higher levels of compliance with federal environmental legislation and, as a result, improve environmental protection in Canada. Description The Regulations implement the AMPs regime by establishing key details of this regime. They are made under subsection 5(1) of EVAMPA, which provides the Governor in Council with the authority to make regulations designating violations of federal environmental legislation that may be enforced by means of an AMP, specifying the method of determining the amount of an AMP and setting out other procedural details of the AMPs regime, such as how the relevant documents will be served. Designation The Regulations designate violations under the following six “Environmental Acts” defined under EVAMPA and administered by the Department: the Antarctic Environmental Protection Act; the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999 (Parts 7 and 9); the International River Improvements Act; the Migratory Birds Convention Act, 1994; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Although the Canada Water Act, which is administered by the Department, and four Acts administered by Parks Canada (the Canada National Parks Act; the Canada National Marine Conservation Areas Act; the Rouge National Urban Park Act; and the Saguenay-St. Lawrence Marine Park Act), are “Environmental Acts” under EVAMPA, the Regulations only designate violations under the six Environmental Acts administered by the Department that are mentioned in the previous paragraph and their associated regulations. Only designated violations of the six Environmental Acts and their associated regulations that are administered by the Department can be enforced by means of an AMP. Designated violations — listed in schedules to the Regulations — include: contraventions of specified provisions of the Environmental Acts and regulations made under those Acts; contraventions of specified directions and orders; and failures to comply with specified conditions of a permit, licence or other authorization. Most offences under the applicable Act or regulations are designated, meaning that AMPs are available to enforce a wide spectrum of violations. Exceptions include offences that require proof that an alleged offender possessed a certain mental state when the prohibited act was committed, such as those offences that explicitly require an act to be committed “knowingly” or “wilfully.” For example, provisions requiring that no person shall knowingly provide false or misleading information are not designated as violations under the AMPs regime. (see footnote 4) Method used to determine the amount of an AMP The Regulations specify the method of determining the amount of an AMP in a given situation. The baseline penalty amount applicable to a violation varies depending on the type of violation and category of the violator. Each designated violation is classified as either Type A, B or C, according to the regulatory significance of the violation. Type A violations represent less serious compliance issues and are typically administrative in nature. For example, the Migratory Birds Regulations require the holder of an avicultural permit to keep records and to submit an annual report containing prescribed information. (see footnote 5) Under the Regulations, failure to meet either of these requirements makes the permit holder liable to an AMP for a Type A violation. Type B violations represent more serious compliance issues and create a risk of harm to the environment or constitute an obstruction of authority. For example, section 152 of the Canadian Environmental Protection Act, 1999 prohibits the transportation within Canada of any prescribed vehicle that does not have a national emissions mark applied to it. (see footnote 6) If a prescribed vehicle is being operated without a national emissions mark in Canada, there is a risk of environmental harm as the vehicle may not meet the requirements of the Canadian Environmental Protection Act, 1999 and its associated regulations related to emissions. Therefore, contravening this provision is classified as a Type B violation. If harm to the environment actually occurs, the violator will be liable to an increased penalty due to the application of the “environmental harm” aggravating factor, which is described further below. Type C violations represent the most serious compliance issues and, by their nature, always result in harm to the environment. For example, under the Wildlife Area Regulations, no person shall dump or deposit any rubbish, waste material or substance that degrades or alters the quality of the environment in any wildlife area. (see footnote 7) This type of action is inherently harmful to the environment and is classified as a Type C violation accordingly. The baseline penalty amount for a Type A, B or C violation is different depending on whether the violator is (1) an individual; or (2) any other person (e.g. a corporation or government department), or ship or vessel. The Regulations also set out three aggravating factors: history of non-compliance, environmental harm, and economic gain. If any of these aggravating factors apply to a violation, a set amount will be added to the baseline penalty amount. Table 1 illustrates the applicable baseline penalty amounts and demonstrates how the aggravating factors will be applied. If the violator has a history of non-compliance within the five-year period prior to the occurrence of the violation in question, or if the violation in question caused environmental harm, then the baseline penalty amount will increase by the amount set out in the table. For Type C violations, the “environmental harm” aggravating factor will not apply because these violations are inherently harmful to the environment and this factor is already reflected in the baseline AMP amount. If the violator has derived any economic gain from the violation, the amount of the AMP will be increased by one of two predetermined amounts, depending on whether the only economic gain resulted from the avoided financial cost of obtaining a required permit, licence or other authorization, or whether any other economic gain resulted from the violation, such as additional income or profits. Table 1: Method used to determine the amount of an AMP (see footnote c) This table presents the method used to determine the amount of an AMP. Aggravating factors (added to the baseline AMP amount if present) Aggravating factors (added to the baseline AMP amount if present) Aggravating factors (added to the baseline AMP amount if present) Aggravating factors (added to the baseline AMP amount if present) Category of violator Type of violation Baseline amount History of non-compliance Harm to environment Economic gain Economic gain Maximum penalty Category of violator Type of violation Baseline amount History of non-compliance Harm to environment Only avoided financial cost of obtaining a required authorization present Other economic gain present Maximum penalty Individual A $200 +$600 +$300 +$50 +$200 $1,300 Individual B $400 +$1,200 +$600 +$100 +$400 $2,600 Individual C $1,000 +$3,000 +$0 (see footnote d) +$250 +$1,000 $5,000 Other person, ship or vessel A $1,000 +$3,000 +$1,500 +$250 +$1,000 $6,500 Other person, ship or vessel B $2,000 +$6,000 +$3,000 +$500 +$2,000 $13,000 Other person, ship or vessel C $5,000 +$15,000 +$0 (see footnote e) +$1,250 +$5,000 $25,000 When a violation occurs and an AMP is identified as the most appropriate enforcement measure, the baseline penalty amount is predetermined, based on the category of the violator and whether the violation is classified by the Regulations as a Type A, B or C violation. No discretion exists to vary the baseline penalty. The enforcement officer will also assess whether any of the three aggravating factors are present. If any of the aggravating factors apply, the applicable amount will be added to the baseline penalty amount. The amount of the AMP for any given violation is the sum of the baseline amount, plus any additional amounts that apply due to the existence of aggravating factors. Under EVAMPA, the amount of a single penalty cannot exceed the maximum penalty of $5,000 in the case of an individual, or $25,000 in the case of any other person, or ship or vessel. Also, section 12 of EVAMPA states that a violation committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued. Methods of service and requests for review The Regulations indicate the method by which a notice of violation under subsection 10(1) of EVAMPA will be served. A notice of violation is the legal document which, among other things, sets out the relevant facts surrounding a violation and the AMP for a violation. The notice of violation could be served in person, or through registered mail, courier, fax or other electronic means. The Regulations also set out requirements for proof of service. In accordance with section 15 of EVAMPA, a person, ship or vessel served with a notice of violation may, within 30 days after the day on which the notice is served, make a request to the Chief Review Officer, established under section 244 of the Canadian Environmental Protection Act, 1999, for an administrative review of the penalty, the facts of the alleged violation, or both. The Regulations specify those persons who may request a review on behalf of a ship or vessel, specifically the owner, operator or master, or the authorized representative of the owner or operator of the ship or vessel. “One-for-One” Rule The “One-for-One” Rule does not apply to regulatory changes that do not impose new administrative costs on businesses. Regulations amending fines and penalties, such as those implementing an AMPs regime, are examples of regulatory changes that do not impose new administrative costs on businesses. (see footnote 8) Thus, the “One-for-One” Rule does not apply to the Regulations. Small business lens Taxes, fees, levies and other charges (penalties) constitute transfer payments from one group to another and are therefore not considered to be administrative or compliance costs, whether they are intended as incentives to foster compliance and change behaviour, or whether their purpose is to recover the costs of providing a service. (see footnote 9) Given that the AMPs regime will not result in an increase in administrative or compliance costs for any person or business, the small business lens does not apply to the Regulations. Consultation Consultation prior to publication of the proposed Regulations in the Canada Gazette, Part I In the summer of 2011, the Department conducted an online consultation in conjunction with the release of a consultation document (the “2011 consultation package”). (see footnote 10) The purpose of this consultation was to obtain feedback on the design of the proposed AMPs regime. Specifically, comments were solicited regarding the violations of environmental legislation that would be subject to the regime and the methodology for determining the amount of an AMP. The Department notified Indigenous peoples, provincial and territorial governments, stakeholders from environmental and industry groups, as well as other federal government departments, of the consultation process at the beginning of the consultation period. Notice of this consultation was also posted on the Department’s Web site. During the summer 2011 consultation, the Department received comments from various interested parties, including Indigenous peoples, industry and government organizations. These comments and the Department’s responses are summarized below. Some stakeholders were interested in the future implementation, or the future operational framework, of the proposed AMPs regime. The implementation of the proposed AMPs regime was not discussed in detail during the summer 2011 consultation since it had not been established at the time. Nevertheless, the questions and comments received during this consultation were taken into consideration as Departmental officials later developed the policies required to implement the AMPs regime. Designation of violations Comment: Some stakeholders provided general comments regarding which contraventions should be subject to the AMPs regime. It was suggested that only clear, unambiguous contraventions should be subject to the regime, and that contraventions involving less serious (Type A) violations, technical or complex issues, or permit, licence or other authorization conditions, should not be subject to the regime. Some stakeholders expressed the view that AMPs should not apply to situations involving the “incidental take,” or the inadvertent harming, killing, disturbance or destruction, of migratory birds, or their nests, eggs or shelters, under the Migratory Birds Convention Act, 1994. (see footnote 11) Response: Violations have been designated where the ability to use an AMP to respond to a contravention is expected to provide a useful alternative to existing enforcement measures. For this reason, the Regulations designate a wide spectrum of violations, including less serious violations, violations of technical or complex provisions, and failure to comply with permit, licence or other authorization conditions. The Department is not broadly designating violations in order to use an AMP in response to every contravention. Rather, AMPs would be one of several enforcement measures available to enforcement officers to bring violators back into compliance as quickly as possible. With respect to the issue of incidental take, the provision of the Migratory Birds Regulations that prohibits the disturbing, destruction or taking of migratory bird nests, eggs and shelters is not designated by the Regulations as a provision for which a notice of violation setting out the AMP could be issued. (see footnote 12) The Department currently conducts compliance promotion activities involving individuals, other government organizations and industry stakeholders to help them achieve compliance with the Migratory Birds Convention Act, 1994 and its associated regulations. Determining the amount of an AMP Comment: Several stakeholders commented on the proposed method of determining the amount payable for a violation. Some stakeholders suggested the use of more specific criteria to determine the amount of an AMP, such as a violator’s knowledge of or intent to commit a violation. Other stakeholders called for the use of mitigating factors to reduce the amount of the AMP in certain circumstances. Response: The method used to determine the amount of an AMP is intended to be a simple and straightforward calculation based on factors that can be measured, observed, or otherwise easily determined or calculated, allowing AMPs to be used in a consistent, fair and efficient manner. For these reasons, no aggravating or mitigating factor has been added to those originally proposed (history of non-compliance, environmental harm and economic gain) in the 2011 consultation package. Some stakeholders suggested that the mental state of the violator should be taken into account in determining the amount of the AMP. However, the mental state of the violator is not easily measured, observed, or otherwise determined or calculated. Consideration of the mental state of the violator would therefore detract from the design of AMPs as a fair and efficient enforcement measure. Consequently, the mental state or intent of the violator is not used as a factor in determining the amount of an AMP. Aggravating factors Comment: Some stakeholders requested clarification about how and when the aggravating factors would increase the amount of the penalty. Specifically, more information was requested about the definition of “history of non-compliance” and the proposed method for calculating economic gain. Response: The approach in the Regulations relating to history of non-compliance and economic gain has evolved since the 2011 consultation. In particular, the Regulations constrain the definition of “history of non-compliance” to any enforcement action taken within the five-year period prior to the occurrence of the current violation that concerns the violator in question and relates to federal environmental legislation specified in the Regulations. In this context, applied measures that are considered “enforcement actions” are limited to tickets, AMPs, injunctions, environmental protection alternative measures and prosecutions. In addition, under the Regulations, economic gain will not be calculated on a case-by-case basis, as proposed in the 2011 consultation package. Rather, the amount of the penalty will be increased by a fixed amount, depending on whether the violator avoided the cost of a permit, licence or other authorization, or realized some other economic gain by committing the violation (e.g. additional income or profits). This approach will contribute to consistency in the application of a fair and efficient AMPs regime. Categories of violators Comment: The 2011 consultation package proposed different penalty amounts for small and large corporations. Some stakeholders noted that the distinction between small and large corporations was unclear. Response: The Regulations contain only two categories of violators: (1) individuals, and (2) other persons, ships and vessels. All corporations are considered “other persons.” The proposed distinction between small and large corporations set out in the 2011 consultation package mirrored the distinction between small and large corporations found in the acts amended by the EEA in the context of fines imposed by a court. However, while a court is well positioned to determine whether a corporation meets the statutory definition of a “small revenue corporation” when making a sentencing decision, this determination could potentially lead to inconsistent penalties in the context of AMPs. All corporations will therefore be subject to the same baseline penalties under the Regulations. Comments received between the summer 2011 consultation and 2015 Between the summer 2011 consultation and 2015, the Department engaged in ongoing consultations with interested parties, and information concerning the proposed AMPs regime continued to be available on the Department’s Web site. Ongoing consultations between Departmental officials and interested parties during this period included meetings with five organizations and several federal government departments, updates presented at five conferences, and replies to six requests for information. Stakeholder comments received during this period focused almost exclusively on the status of the proposed Regulations and when the AMPs regime authorized by EVAMPA would come into force. Consultation following publication of the proposed Regulations in the Canada Gazette, Part I The proposed Regulations were published in the Canada Gazette, Part I, on April 9, 2016, for a 60-day public comment period. A notification was sent by the Department to key parties, inviting them to submit written comments. Also, the Department informed the provincial and territorial governments through the National Advisory Committee established under the Canadian Environmental Protection Act, 1999 (CEPA NAC) of the publication of the proposed Regulations and the associated comment period. No comments were received from CEPA NAC members. During the public comment period, the Department received 12 written submissions from a range of interested parties, including Indigenous peoples, industry stakeholders and other government departments. The Department has taken these views into account in finalizing the Regulations. In general, stakeholders supported the proposed Regulations and the overall AMPs regime. Several stakeholders requested changes to elements of the proposed Regulations to improve the clarity of some definitions and certain procedural provisions. As well, some stakeholders requested additional information and clarifications regarding the regulatory text and its applicability. The Department has addressed these comments by providing detailed explanations to stakeholders or by making modifications to the regulatory text. The following paragraphs summarize the main issues raised by interested parties with respect to the proposed Regulations and the Department’s consideration of these issues leading to the finalization of the Regulations. In addition, during the public comment period, the Department received several comments relating to the implementation of the AMPs regime by means of the proposed Regulations. These comments were taken into consideration by Departmental officials when finalizing the overview document that describes the operational framework for the AMPs regime, which is available on the Department’s Web site. (see footnote 13) Designation of violations Comment: Schedule 1 of the Regulations lists the provisions of the six Environmental Acts and their associated regulations that, if violated, may be enforced by means of an AMP. Several stakeholders indicated that violations of some of the provisions listed in Schedule 1 may occur despite reasonable actions or measures having been taken, and suggested the removal of such provisions from Schedule 1 since the defence of due diligence is not available to violators served with a notice of violation setting out an AMP. Other stakeholders suggested the removal of provisions from Schedule 1 because there is authority for an enforcement officer to subject a violator to a separate AMP for each day of a continuing violation, which they claimed could result in disproportionately high monetary penalties. Response: While the defence of due diligence is not available to a violator served with a notice of violation setting out an AMP, an enforcement officer may consider whether the violator has made reasonable efforts to remedy or mitigate the consequences of the violation when choosing the appropriate enforcement measure. Further, under the appropriate circumstances, an enforcement officer may decide to impose more than one AMP when a violation is committed or continues on more than one day. This element of the AMPs regime provides the flexibility to establish significant financial disincentives with the goal of quickly bringing violators back into compliance with designated legislative requirements. Situations involving violations that are committed or continue on more than one day will be dealt with on a case-by-case basis, and a violator will not be automatically subject to an AMP for every day that a violation is committed or continues. Determining the amount of an AMP Comment: Some stakeholders commented on the method used to determine the amount of an AMP, indicating that they found this method to be too rigid. Some indicated that the resulting AMPs may be too low to positively affect behaviour, even with the additional possibility of increased amounts for aggravating factors. Others commented that the lack of flexibility in the calculating method may result in excessive AMPs. Response: The Department considered these comments and concluded that the existing method to determine the amount of an AMP is consistent with the purpose of the AMPs regime, which is intended to be a fair and efficient system that is administrative and non-punitive in nature, yet effective in encouraging compliance and deterring future violations. The regime incorporates the flexibility to vary the amount of an AMP according to the nature and circumstances of the violation that it addresses, and according to whether the violation is committed by an individual or other type of violator. The ability to vary the amount of an AMP helps to ensure a fair and appropriate response tailored to the type of violator and circumstances of the violation. AMPs are one of several enforcement measures, including written warnings and prosecution, which an enforcement officer may choose from in order to respond appropriately to a given violation. Consideration of mitigating factors Comment: Several stakeholders provided suggestions relating to the criteria that could be used when calculating the amount of an AMP. It was suggested that both mitigating and aggravating factors should influence the amount of an AMP. Response: The method for determining the penalty amount does not include consideration of mitigating factors. However, mitigating factors may influence the choice of enforcement measure. For example, when deciding whether to use an AMP or another enforcement measure, the enforcement officer may consider whether the violator has made reasonable efforts to remedy or mitigate the consequences of the violation or prevent further violations. The choice of enforcement measure is determined by the enforcement officer in accordance with the principles set out in the Department’s compliance and enforcement policies, including the principle of consistency in enforcement, and the document that provides an overview of the operational framework for the AMPs regime. Aggravating factor of history of non-compliance Comment: Stakeholders suggested that the aggravating factor of “history of non-compliance” was defined too broadly, allowing prior enforcement action to count as history of non-compliance where it is not directly linked to the present violation. Other stakeholders commented that the set amount added to the baseline penalty for history of non-compliance was too high, while others indicated that the broad definitions of “history of non-compliance” and “enforcement action” could result in inequitable treatment, since the same additional monetary penalty would be applied regardless of the significance of the prior violation. Response: The Regulations define the scope of application of the aggravating factor of “history of non-compliance” in order to promote the fairness and efficiency goals of the AMPs regime. The definition of “history of noncompliance” in section 6 of the Regulations allows the enforcement officer to determine whether the baseline penalty amount should be increased to account for a history of non-compliance in a straightforward and transparent manner, avoiding potential unfairness due to inconsistent application of this aggravating factor. The enforcement officer will consider which enforcement measure to use in accordance with the principles set out in the Department’s compliance and enforcement policies, including the principle of consistency in enforcement. AMPs are an administrative, non-punitive measure intended to encourage ongoing compliance with federal environmental legislation. The penalty amount is increased for a violator with a history of non-compliance because past enforcement action (i.e. tickets, AMPs, injunctions, environmental protection alternative measures or prosecution) has proven ineffective to promote ongoing compliance with this legislation. Comment: Submissions were also received to clarify whether enforcement actions that occurred prior to the coming into force of the Regulations would be counted for the purposes of “history of non-compliance.” Response: Under subsection 6(2) of the Regulations, any prior enforcement action taken within the past five years will count as a history of non-compliance, regardless of when the Regulations come into force. Counting prior enforcement actions as history of non-compliance does not raise fairness concerns, given that there is still an obligation to comply with existing federal environmental legislation prior to the coming into force of the Regulations. Provisions concerning manner of service Comment: Some stakeholders commented that in the case of a violator such as a corporation (“other person”), it is important that the appropriate persons are made aware of a notice of violation setting out an AMP, as soon as possible, in order to allow time for them to make a request, if desired, to the Chief Review Officer for an administrative review of the penalty. Response: This comment has been addressed by the Department, as the manner of service provisions in the Regulations now require that when a corporation, or its authorized representative, is served with a notice of violation, it must be left with or sent to an officer or other individual who appears to direct or control the head office or place of business of the corporation or that of their authorized representative. Analogous changes have also been made to the manner of service provisions concerning a ship or vessel. Rationale AMPs provide a new, complementary means of responding to contraventions of federal environmental legislation, in addition to existing enforcement measures, such as written warnings, the use of tickets under the Contraventions Act, and prosecution. The introduction of a financial disincentive such as AMPs is expected to increase the overall rate of compliance with specified federal environmental legislation, especially in situations where other enforcement measures may not be available or appropriate, or where the regulated community perceives the risk of prosecution to be low. For example, a written warning might not provide enough of a deterrent effect, while prosecution might be too severe. In addition, the use of tickets under the Contraventions Act and its associated regulations is presently only available in provinces in which an implementation agreement has been signed by the federal and provincial governments. (see footnote 14) AMPs could encourage compliance by potential violators who might otherwise decide not to comply with legislative requirements. A notice of violation setting out an AMP under the Regulations could be issued swiftly, unlike some other enforcement measures that require court proceedings and typically take months to complete. AMPs provide a financial disincentive to violating designated legislative requirements, thereby encouraging greater compliance and reducing risks to the environment. It is expected that overall compliance with the federal environmental legislation administered by the Department will increase, since regulated parties will recognize there is a greater potential under the Regulations that they will receive a notice of violation and monetary penalty, if they are found to be in non-compliance. The Regulations are not expected to impose any incremental administrative or compliance costs on the public or industry stakeholders. AMPs constitute monetary transfer payments from violators of specified federal environmental legislation to the Environmental Damages Fund (EDF), a specified purpose account administered by the Department on behalf of the Government of Canada. (see footnote 15) In accordance with the Canadian Cost-Benefit Analysis Guide: Regulatory Proposals, transfer payments should not be regarded as providing economic benefits or imposing economic costs. (see footnote 16) Thus, AMPs are not classified as benefits or costs in this analysis. As a result of implementing the Regulations, some cost savings are anticipated through the enforcement of legislative requirements using administrative processes and reviews, rather than judicial proceedings, where an administrative response is appropriate given the nature of the violation. The estimated cost to the Department’s Enforcement Branch of a prosecution of average complexity relating to federal environmental legislation is about $75,000. The average cost to the federal government per administrative review is approximately $5,000, based on the average expenditures per review of the office of the Chief Review Officer since 2010 in respect of environmental protection compliance orders. Further, the operations of Departmental enforcement officers will not change significantly as a result of the AMPs regime, but these officers will require additional training concerning the use of AMPs. It is therefore expected that the Department’s Enforcement Branch will incur minor training costs associated with the development of learning material and regional deliverables. The AMPs regime will provide the Department with an important, additional enforcement measure. Overall, the AMPs regime is expected to increase compliance with federal environmental legislation and thus improve environmental protection in Canada. However, it is very hard to accurately forecast how many AMPs will be imposed each year, making it difficult to quantify the anticipated environmental benefits. While it is also challenging to estimate the annual number of requests to the Chief Review Officer for administrative reviews of AMPs, this number is anticipated to be low, potentially yielding net cost savings for society in the form of avoided costs associated with other, more costly enforcement measures. For these reasons, the implementation of an AMPs regime in Canada by means of the Regulations is preferred to maintaining the status quo. Strategic environmental assessment As required by the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted which concluded that a strategic environmental assessment is not required. (see footnote 17) Implementation, enforcement and service standards The Regulations come into force on the day on which they are registered. They put in place the final elements of the AMPs regime under EVAMPA, thereby allowing enforcement officers to use an additional enforcement measure in response to violations of provisions of specified federal environmental legislation. A document providing an overview of the operational framework of the AMPs regime is available on the Department’s Web site. (see footnote 18) Given that the Regulations do not alter any requirements contained in the provisions of federal environmental legislation, no compliance and enforcement strategy specific to the Regulations is necessary. An AMP is simply an additional enforcement measure that will be used by enforcement officers. The enforcement measure that is employed in any particular situation involving a contravention of federal environmental legislation will be determined in accordance with the Department’s compliance and enforcement policies. (see footnote 19) In respecting these policies, enforcement officers will apply the Regulations as they enforce existing legislation administered by the Department — in a manner that is fair, predictable and consistent, with an emphasis on prevention of damage to the environment, conservation and protection of natural resources. Notices of violation and associated AMPs that are issued will be tracked, along with other enforcement measures, using the Department’s existing enforcement database and systems to help ensure consistent application across Canada. The Department publishes statistics regularly relating to enforcement measures that have been taken in respect of the federal legislation that it administers (e.g. in annual reports relating to the Environmental Acts). Nevertheless, under this AMPs regime, the Department does not plan to publish or report information relating to the identity or type of violators who are served with notices of violation setting out AMPs. Contacts Executive Director Legislative Governance Division Legislative and Regulatory Affairs Directorate Environmental Protection Branch Department of the Environment 351 Saint-Joseph Boulevard, 21st Floor Gatineau, Quebec K1A 0H3 Fax: 819-420-7391 Email: [email protected] Matthew Watkinson Director Regulatory Analysis and Valuation Division Economic Analysis Directorate Strategic Policy Branch Department of the Environment 200 Sacré-Cœur Boulevard, 10th Floor Gatineau, Quebec K1A 0H3 Email: [email protected] Footnote 1 These provinces are British Columbia, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island. Footnote 2 The long title of the EEA is An Act to amend certain Acts that relate to the environment and to enact provisions respecting the enforcement of certain Acts that relate to the environment. Footnote 3 The EEA amended the following nine Acts: the Antarctic Environmental Protection Act; the Canada National Marine Conservation Areas Act; the Canada National Parks Act; the Canada Wildlife Act; the Canadian Environmental Protection Act, 1999; the International River Improvements Act; the Migratory Birds Convention Act, 1994; the Saguenay St. Lawrence Marine Park Act; and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act. Footnote 4 See, for example, the Antarctic Environmental Protection Act, S.C 2003, c. 20, paragraph 49(1)(a), and the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, paragraph 5.2(d). Footnote 5 Migratory Birds Regulations, C.R.C., c. 1035, paragraphs 20(3)(a) and (b). Footnote 6 Canadian Environmental Protection Act, 1999, S.C. 1999, c. 33, section 152. Footnote 7 Wildlife Area Regulations, C.R.C., c. 1609, paragraph 3(1)(m). Footnote 8 Controlling Administrative Burden That Regulations Impose on Business: Guide for the “One for One” Rule. Treasury Board of Canada Secretariat (www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/guides/cabtrib-lfarie/cabtrib-lfarietb-eng.asp). Footnote 9 Hardwiring Sensitivity to Small Business Impacts of Regulation: Guide for the Small Business Lens. Treasury Board of Canada Secretariat (www.tbs-sct.gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/guides/hssbir-tcirpese/hssbir-tcirpesetb-eng.asp). Footnote 10 Administrative Monetary Penalty System - Consultation Document. Department of the Environment (www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=465314E0-1). Footnote 11 Safeguarding Migratory Birds: Avoidance Guidelines. Department of the Environment (www.ec.gc.ca/paom-itmb/default.asp?lang=En&n=AB36A082-1). Footnote 12 Migratory Birds Regulations, C.R.C., c. 1035, paragraph 6(a). Footnote 13 Policy Framework of the Administrative Monetary Penalty System at Environment and Climate Change Canada to Implement the Environmental Violations Administrative Monetary Penalties Act. Department of the Environment (www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=29F33776-1). Footnote 14 These provinces are British Columbia, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island. Footnote 15 The Environmental Damages Fund functions on the “polluter pays” principle, as funds received as compensation for environmental damages are directed to projects that benefit the natural environment. Environmental Damages Fund. Department of the Environment (www.ec.gc.ca/edf-fde/Default.asp?lang=En&n=BD1220D8-1). Footnote 16 Canadian Cost-Benefit Analysis Guide: Regulatory Proposals. Treasury Board of Canada Secretariat (www.tbs-sct.gc.ca/rtrap-parfa/analys/analystb-eng.asp). Footnote 17 Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. Canadian Environmental Assessment Agency (www.ceaa.gc.ca/default.asp?lang=En&n=B3186435-1). Footnote 18 Policy Framework of the Administrative Monetary Penalty System at Environment and Climate Change Canada to Implement the Environmental Violations Administrative Monetary Penalties Act. Department of the Environment (www.ec.gc.ca/alef-ewe/default.asp?lang=En&n=29F33776-1). Footnote 19 Compliance and Enforcement Policies. Department of the Environment (www.ec.gc.ca/alef-ewe/default.asp?lang=en&n=8233E4B5-1). Footnote a S.C. 2012, c. 19, s. 54 Footnote b S.C. 2009, c. 14, s. 126 Footnote c A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued. Footnote d By their nature, Type C violations always result in harm to the environment; hence, for these violations, there will not be an additional amount added to the baseline AMP amount due to the “environmental harm” aggravating factor, as this factor is already reflected in the baseline amount. Footnote e By their nature, Type C violations always result in harm to the environment; hence, for these violations, there will not be an additional amount added to the baseline AMP amount due to the “environmental harm” aggravating factor, as this factor is already reflected in the baseline amount.
This Bill does not amend any statutes.
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