December 4-11, 2006

Ontario proposes environmental penalty rules

The Ontario Ministry of Environment (MOE) is accepting comments until January 12, 2007 on proposed regulations which would serve to implement the environmental penalties (EP) provisions of the Environmental Enforcement Statute Law Amendment Act, 2005 (EESLAA, formerly Bill 133). The act, which received Royal Assent in June 2005, amended the Environmental Protection Act and the Ontario Water Resources Act to allow an MOE director to levy financial penalties for spills, illegal discharges to water and land, and other violations. The proposed regulations, once finalized, will bring into force still-unproclaimed sections of the act, including those relating to EPs.

The regulations would enable a Ministry director to issue EP orders to "regulated persons," defined as those who own, are in occupation or are in charge, management or control of a facility discharging to a surface water course or private sewage treatment plant. Included as regulated persons are 116 companies/facilities on a list attached to the draft regulations as Table 1, as well as those in the nine Municipal-Industrial Strategy for Abatement (MISA) sectors.

Implementation of the EP regulations would proceed in two stages, with the first expected to begin May 1, 2007. In this phase, violations potentially leading to an EP order would be primarily related to illegal discharges to water or land. The second phase, expected to come into effect 18 months later, on December 1, 2008, would address violations related to constructing works, conditions of operation, sampling, reporting and record-keeping.

EPs would consist of a gravity component (relating to the seriousness of the violation) and a monetary benefit component (i.e. the money gained by avoiding or delaying the costs of compliance). The draft regulations include procedures for calculating both components.

The MOE notes that the gravity of a violation (i.e. its potential to cause adverse environmental or human health effects) would be determined in part by whether the violation relates to a toxic substance. The Ministry is seeking comment on two possible approaches (a closed list and an open list) the EP regulations could take with regard to the list of toxic substances in schedule 1 of the Canadian Environmental Protection Act (CEPA).

The draft EP regulations would allow the gravity component of an EP to be reduced by up to 30% in acknowledgement of preventive and/or mitigative measures by a regulated person, and by 5% if the regulated person had an environmental management system (EMS) in place at the time of the violation. A provision outlining settlement agreements between the MOE and regulated persons also allows for a reduction in the gravity component of an EP.

Included in the proposal as well is a spill prevention and contingency plans regulation requiring regulated persons to develop and implement such plans for their facilities. This regulation focuses on two classes of pollutants: oil, gas and petroleum product storage areas with aboveground storage tanks or containers; and chlorinated solvents or dense non-aqueous phase liquid (DNAPL) compounds.

The regulatory proposal, with related links, may be viewed on the Environmental Bill of Rights registry, accessed through the MOE Web site, www.ene.gov.on.ca (reference No RA06E0013).

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