November 22, 2004

Industry coalition seeks longer comment period for Ont environmental penalties legislation

A coalition of 16 associations representing virtually all major industries in Ontario is asking the Ontario Ministry of Environment to extend the public comment period for Ontario's Bill 133, the Environmental Enforcement Statute Law Amendment Act.

The proposed legislation, introduced last month, would amend the Environmental Protection Act and the Ontario Water Resources Act, setting higher, more immediate penalties for spills or other releases into the environment (ELW October 18-25, 2004). Its posting on the province's environmental registry has allowed only a 30-day comment period, ending November 27, 2004; the coalition wants the period lengthened to 90 days.

In a letter to Environment Minister Leona Dombrowsky, the coalition says there was no public consultation before the bill was introduced for first reading, and maintains that 30 days is insufficient time for those affected to understand and properly review the bill and provide informed comment. It also expresses serious concern about a number of issues, including constitutional ones, raised by the proposed legislation. Some of these include: the new environmental penalties, which are absolute liability offences; reverse onus provisions relating to appeals to the Environmental Tribunal and prosecution of directors and officers for an offence; and the increased general penalties.

The bill also introduces a new degree of uncertainty around prohibited discharges to the environment, says the group. The proposed legislation would amend the phrasing of several provisions relating to prohibited discharges from "cause or are likely to cause an adverse effect" to "may cause an adverse effect."

The coalition is concerned that discharges which are within both certificate of approval and effluent regulation limits may suddenly become prohibited because a Ministry director believes they may cause an adverse effect. "We are concerned that even discharges that in all likelihood cause no effects will suddenly become prohibited," says the coalition.

In addition, the proposed environmental penalties (EPs) are not only onerous for companies, their officers, directors, employees and agents, they are absolute liability offences. Such offences, says the letter, should be reserved for minor regulatory offences.

Moreover, there is reverse onus on appeal to the Environmental Tribunal, and this onus applies to directors and officers in the event of a prosecution. The imposition of such serious fines for contraventions that "may cause an adverse effect," combined with the removal of the due diligence defence and the reverse onus provisions of the bill appear to run counter to the fundamental principles of innocent until proven guilty, procedural fairness and due process, says the coalition.

The group concludes by recommending that, in view of the extensive changes to the environmental protection regime proposed in the legislation, full economic and regulatory analyses be carried out and their findings made available to the public.

Among the coalition members are: the Canadian Chemical Producers' Association; the Canadian Petroleum Products Institute; Canadian Manufacturers and Exporters; the Canadian Steel Producers' Association; the Canadian Vehicle Manufacturers' Association; the Ontario Energy Association; the Ontario Mining Association; the Ontario Forest Industries Association; the Ontario Waste Management Association; the Rubber Association of Canada; and the Sarnia-Lambton Environmental Association.

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