Regulations Amending the Environmental Violations Administrative Monetary Penalties Regulations: SOR/2022-71
Canada Gazette, Part II, Volume 156, Number 8
SOR/2022-71 March 28, 2022
ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT
P.C. 2022-269 March 25, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to paragraphs 5(1)(a) and (b) of the Environmental Violations Administrative Monetary Penalties Act footnote a, makes the annexed Regulations Amending the Environmental Violations Administrative Monetary Penalties Regulations.
Regulations Amending the Environmental Violations Administrative Monetary Penalties Regulations
1 Item 9 of Division 6 of Part 5 of Schedule 1 to the Environmental Violations Administrative Monetary Penalties Regulations footnote 1 is repealed.
2 Divisions 10 and 11 of Part 5 of Schedule 1 to the Regulations are replaced by the following:
|10||26(3) and (4)||A|
|7||38(1) and (2)||B|
|15||49(1) and (2)||A|
3 Division 17 of Part 5 of Schedule 1 to the Regulations is replaced by the following:
Coming into Force
4 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Environmental Violations Administrative Monetary Penalties Regulations (EVAMPR or the Regulations) were brought into force on June 2, 2017, as an additional enforcement measure to promote compliance with the federal legislation administered by the Department of Environment and Climate Change Canada (ECCC or the Department). Actions against non-compliance with legislation include administrative monetary penalties (AMPs), written warnings, compliance orders, prosecution, and the issuance of tickets under the Contraventions Regulations. 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.
ECCC has identified a need to update Schedule 1 to the Regulations in order to add, modify or delete various sections based on new publications or recent amendments of the following regulations:
- (1) Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations;
- (2) Sulphur in Diesel Fuel Regulations;
- (3) Off-Road Small Spark-Ignition Engine Emission Regulations;
- (4) Off-road Compression-Ignition (Mobile and Stationary) and Large Spark-Ignition Engine Emission Regulations.
The Environmental Violations Administrative Monetary Penalties Act (EVAMPA) came into force on December 10, 2010, and enacted the Environmental Violations Administrative Monetary Penalties Regulations (EVAMPR or the Regulations). The Regulations allow the issuance of AMPs in the case of violation of any provisions of the schedules to the Regulations without the need to resort to legal proceedings.
An AMP is an administrative or civil measure, rather than a criminal or penal one. After being issued an AMP, the alleged violator cannot be prosecuted for the same violation and the AMP does not lead to any sentence of imprisonment. Because the AMPs do not contain specific corrective measures, in some situations, enforcement officers will decide to use a compliance order in addition to the notice of violation (NOV) for 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 the category of the violator. Each designated violation is classified as Type A, B or C, according to the regulatory significance of the violation.
- Type A violations represent less serious compliance issues that are typically administrative in nature, such as not maintaining specific records required by the regulations.
- Type B violations represent more serious compliance issues that create a risk of harm to the environment or constitute an obstruction of authority. If harm to the environment actually occurs, the violator will be liable for 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 which, by their nature, always result in harm to the environment.
The baseline penalty amount for Type A, B and C violations varies 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. In addition to the baseline amount, the Regulations also set out three aggravating factors that incur additional financial penalties: 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.
Pursuant to subsection 5(4) of EVAMPA, the maximum penalty amount is $5,000 for an individual and $25,000 for any other person, ship or vessel. The Regulations explain how the penalties are calculated for Type A, B, and C violations.
The purpose of these amendments is to operationalize or update the AMPs scheme for certain regulations administered by ECCC in order to make available enforcement measures to enforcement officers that are likely to promote higher levels of compliance with federal environmental legislation, thereby enhancing environmental protection in Canada.
The amendments update Schedule 1 to the Regulations, including the addition, modification and deletion of different articles based on recent amendments to the four following regulations.
(1) Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations
The amendment of two existing articles and the addition of 13 new articles, as follows:
- (a) The addition of nine articles designating Type A violations, such as failing to submit a complete report, failing to ensure the proper documentation accompanies the engines, or failing to maintain the necessary records for certain types of vehicles.
- (b) The addition of two articles designating Type B violations, such as non-compliance with emission standards or limitations of gas emissions.
- (c) The addition of two articles designating Type C violations, such as not compensating for deficits within the CO2 emission credit system.
Additionally, 17 articles have been modified for the most part to include trailers as a type of vehicle that will also be regulated.
(2) Sulphur in Diesel Fuel Regulations
- (a) Requires the repeal of a Type A violation which is a case of less serious non-compliance and typically of an administrative nature.
(3) Off-Road Small Spark-Ignition Engine Emission Regulations
- (a) The creation of five new articles designating Type A violations, such as failing to submit a declaration, or failing to submit written instructions — or the address of the place or the website where those instructions may be obtained — for the engine’s assembly.
(4) Off-road Compression-Ignition (Mobile and Stationary) and Large Spark-Ignition Engine Emission Regulations
The amendment of the title of Section 11 and the modification of this section to include a total of 14 new articles, as follows:
- (a) Nine articles will be designated Type A violations, i.e. cases of less serious non-compliance and typically of an administrative nature, such as failing to maintain or submit records.
- (b) Five articles will be designated Type B violations, i.e. cases of more serious non-compliance, which are likely to cause environmental harm, such as noncompliance with emission standards or limits on gas emissions.
The Canadian Environmental Protection Act, 1999 (CEPA) offers a range of enforcement measures, such as notices, prosecutions and compliance orders. The amendments to the EVAMPR add a new measure (AMPs) for the articles listed in the previous section, but have no impact on the nature of the obligations of the four regulations that were recently published or amended.
Given that these amendments only update the EVAMPR with additional regulatory provisions and do not impose new regulatory requirements on stakeholders, they were not published in the Canada Gazette, Part I, for a comment period.
Modern treaty obligations and Indigenous engagement and consultation
The amendments to EVAMPR do not have any direct or indirect impact on Indigenous peoples in relation to rights protected by section 35 of the Constitution Act, 1982, modern treaties and international human rights obligations.
AMPs provide a 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.
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 associated regulations is presently only available in provinces in which an implementation agreement has been signed by the federal and provincial governments.footnote 2
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. 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 a monetary penalty, if they are found to be in non-compliance.
Benefits and costs
These amendments to Schedule 1 would allow enforcement officers to use AMPs in response to non-compliance for the regulations set out above, in a context where an AMP represents the halfway point between the low severity of a warning and the high severity of prosecution, allowing enforcement officers more flexibility and efficiency in their interventions. These amendments would result in higher regulatee compliance rates and a reduction of environmental risks.
The amendments to the Regulations are not expected to result in incremental operational costs or compliance costs to stakeholders. The current average cost to the Department of issuing an AMP is $220.40. Regulatees can request the review of an AMP issued to them, which costs $2,975.40 on average. As per the Department’s estimates, between one and four AMPs per new provision per year are expected to be issued, which represents a total incremental cost range of between $23,400 and $93,500 per year, assuming a 30% review rate. On the other hand, some savings are expected through the use of administrative processes, such as the issuing of AMPs, instead of the usual judicial proceedings. As each case varies widely in scope and complexity, it is difficult to give an estimate of the total potential savings that will be generated by avoiding judicial proceedings. Finally, the operational costs for enforcement officers will not change significantly as a result of the amendments to the Regulations.
Small business lens
The amendments do not result in costs for small businesses. The Regulations are an enforcement tool and regulated parties, including small businesses, only incur costs if they violate regulatory provisions.
The “one-for-one” rule does not apply to these amendments. The Regulations do not impose any requirements; therefore, there is no administrative burden. The Regulations are an enforcement tool and regulated parties only incur additional costs if they violate certain requirements of the Regulations.
Regulatory cooperation and alignment
The amendments do not relate to a work plan or commitment under a formal regulatory cooperation forum. The Regulations are an enforcement tool and alignment or coordination with other jurisdictions is not applicable.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) issues have been identified for these Regulations.
Implementation, compliance and enforcement, and service standards
Given that the amendments 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 current AMP enforcement system is tailored to both achieve compliance and promote deterrence. 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.
Review mechanisms are available pursuant to the EVAMPA. A person who has been issued a notice of violation (NOV) may request, within 30 days, a review of the facts of the violation by the Chief Review Officer. The Chief Review Officer’s decisions are subject to judicial review by the Federal Courts Act.
Any NOVs and associated AMPs issued will be tracked, along with other enforcement measures, using the Department’s existing enforcement database and systems to help ensure a consistent application across Canada. The Department regularly publishes statistics relating to enforcement measures that have been taken in respect of the federal legislation that it administers (e.g. in annual reports relating to environmental acts). Nevertheless, under this AMPs scheme, the Department does not plan to publish or report information relating to the identity or type of violators who are served with NOVs setting out AMPs.
Senior Regulatory Analyst
Environmental Enforcement Directorate
Environment and Climate Change Canada
351 Saint-Joseph Boulevard, 4th Floor