October 18-25, 2004

Ontario to impose tougher, more immediate penalties, set up cleanup fund for spills

Companies responsible for spills that damage the environment will face tougher, more immediate penalties under legislation soon to be introduced by the Ontario government. "Our message to polluters is simple: You spill, you pay," said Premier Dalton McGuinty.

The planned legislation would give Ministry of Environment officials the authority to impose penalties within a few days after an unlawful spill or emission into the environment, i.e. in violation of the Environmental Protection Act or the Ontario Water Resources Act (OWRA). Penalties are different from fines, which are imposed by the courts if a company is charged and found guilty of an environmental offence. Environmental penalties could be up to $20,000 a day for individuals and $100,000 a day for corporations. Only large industries would be subject to these penalties.

Even after a penalty has been imposed, polluters could still face prosecution in serious cases. The proposed legislation would hold corporate officers and directors to an expanded scope of duty, requiring them to take all reasonable steps to prevent the commission of any contravention of the Environmental Protection Act and OWRA. Moreover, they would be required to prove that they fulfilled this duty.

Sentencing provisions in the legislation would be strengthened so that, in appropriate cases, jail times could be imposed by the courts for offences committed by corporate officers and directors. A conviction could result in sentences ranging from fines against a company to up to five years of jail time for its directors and officers.

"The vast majority of Ontario's companies are responsible corporate citizens," said Environment Minister Leona Dombrowsky. "It's only fair to them that we target companies who fail to live up to their responsibilities to the environment and who put the health of Ontarians at risk."

The legislation would also create a special fund. The monies received through environmental penalties would go into a special community cleanup fund, which would be used by the Ministry of Environment and municipalities to help fund environmental remediation and cleanup activities in the communities that were affected by the spill.

In addition, the authority of ministry officials and municipalities would be extended, allowing them to issue orders to recover reasonable costs and expenses incurred in responding to spill incidents. This authority would strengthen and simplify cost recovery provisions in cases of spills where municipalities or the province needs to clean up spills and restore the natural environment.

The planned legislation responds to the final report of Ontario's Industrial Pollution Action Team (IPAT), which examined the causes of industrial spills and dangerous air emissions along the St Clair River. IPAT concluded that the current system of fines is not a sufficient deterrent. The report noted that many "offenders have not received sufficient (or in some cases any) penalties for spill events and may be considering spill-related fines as a cost of doing business."

The report recommended that the government do more to bring industry into compliance with Ontario's environmental legislation, and that communities be compensated for expenses incurred as a result of spills.

More rigorous enforcement is being coupled with new incentives as part of a comprehensive shift in Ontario's approach to industrial pollution. The Ministry of Environment recently introduced its Environmental Leaders program, which creates incentives for companies that show leadership on environmental protection (ELW October 4, 2004).

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