ENFORCEMENT OF CANADIAN LAWS OF ENVIRONMENTAL PROTECTION AS APPLIED TO FEDERAL FACILITIES
PAUL CUILLERIER
Director Office of Enforcement Environmental Protection Environment Canada
1 INTRODUCTION
In Canada, The Federal Government is the largest single player in the Nation's Economy. It employs more workers than any other organization. It maintains facilities to administer Federal Programs and house the employees who run them, to carry out research and other laboratory work, and to store the goods that it needs to carry out Federal activities of many different types. Each year, Canada's Federal Government purchases some 10 billion Dollars in both goods and services. Also, inevitably, Federal Facilities Release Emissions and effluents into the environment and must deal with the waste that the facilities and their activities generate.
Canada's national government takes the position that the environment is everybody's business. Solving environmental problems will take considerable time and effort. The federal government recognizes that it must do its part to achieve a healthy environment and a prosperous economy for all Canadians, now and in the future. One part of the federal government's role in meeting that commitment is compliance by federal facilities with federal environmental laws.
2 CANADIAN ENVIRONMENTAL PROTECTION ACT
Environment Canada is responsible for enforcing the Canadian Environmental Protection Act that became law in July 1988. The full title of the legislation is "an act respecting the protection of the environment and of human life and human life and health". The title clearly defines the purpose of the statute. Also, the declaration or preamble of the Canadian Environmental Protection Act states that "protection of the environment is essential to the well-being of Canada". That phrase underscores the importance placed by the government of Canada on the concept of environmental protection.
In a summary of a few words, the act provides a comprehensive approach to Environmental protection, covering activities that could result in pollution affecting land, inland waters, the ocean and the atmosphere. It gives the government of Canada powers to set national regulations for any substance that threatens to harm the environment or the health of Canadians. Those regulations may encompass the entire life cycle of substances -- from their development and manufacture through transportation, distribution, storage, use, and ultimate disposal as waste.
It is significant that section 4 of the Canadian Environmental Protection Act states that the act is binding on her majesty in right of Canada -- in other words, the federal government of Canada must comply with the law. In addition to the full act applying to government as well as to the private sector, CEPA has a special part, which is targeted specifically to federal departments, boards, agencies, and federal crown corporations, which are corporations of the state, as well as federal lands, works and undertakings. That part allows the creation of regulations specific to federal departments and the federal entities listed above, to control emissions, effluents and waste handling practices.
3 FISHERIES ACT
In addition to the Canadian Environmental Protection Act, environment Canada enforces the pollution prevention provisions of the Fisheries Act. That act is probably Canada's first environmental statute, and has been in force since 1868. The purpose of the statute is to protect fish, fish habitat and human use of fish. One of the strongest provisions to achieve that statutory objective is the prohibition against the deposit, into waters where fish are found, of any substance that is harmful to fish. Like CEPA, the Fisheries Act states, in section 2, that the federal government is subject to the act and all its regulations.
So, the concept of federal law applying to Canada's federal government is not new in Canadian law. But what is new is that in 1988 the minister of environment announced the intention of his department to treat the public sector, that is government, the same way as the private sector in terms of enforcement of Environmental law. The minister believed that the federal government must be exemplary in its environmental behavior and specifically committed the government of Canada to that goal.
Consequently, in July 1988, environment Canada published its enforcement and compliance policy for the Canadian Environmental Protection Act which provided equal treatment in enforcement to both government and non-government regulatees. The soon to be published compliance policy for the habitat protection and pollution prevention provisions of the Fisheries Act takes the same approach.
4 COMPLIANCE AND ENFORCEMENT
The basic principles of the enforcement and compliance policy for the Canadian Environmental Protection Act are:
compliance with the act and its regulations is mandatory;
enforcement officials will be fair and consistent in their application of the law, and use rules and processes securely founded in law;
enforcement officials will apply the act with an emphasis on prevention of damage to the environment; and
enforcement officials will encourage the reporting to them of suspected violations.
These principles are repeated in the soon to be published Fisheries Act habitat protection and pollution prevention provisions compliance policy.
A fundamental difference between the two policies, however, is that the CEPA policy commits enforcement officers to examine every suspected violation and to take action consistent with the policy; and the Fisheries Act requires enforcement officers to respond to suspected violations, giving priority to those that result in or pose the greatest harm to fish, fish habitat or to human use of fish.
The CEPA policy requires examination of every suspected violation, while the Fisheries Act policy requires prioritization of suspected offences for investigation.
You might think it strange for an enforcement and compliance policy to state, as basic principles, that compliance with the law is mandatory and that enforcement officers "will only use rules, sanctions and processes securely founded in law". They may seem to you to be "givens" or self-evident truths.
But, in the past, environment Canada's approach to law enforcement had shown to regulatees that the department was flexible on compliance. Regulatees had experience with officials who were prepared to use rules and processes that were not provided for in federal Environmental laws and that were not even enforceable civil contracts. These were measures such as letters
Acknowledging and tolerating non-compliant behavior for specified lengths of time, or giving commitments not to enforce the law if Environmental studies were done.
The negotiation of compliance and the use of tools not provided for in legislation did not work -- hence, the need to stipulate as basic, general principles that "compliance with the act and its regulations is mandatory" and that only rules, sanctions and processes founded in law would be used. The government of Canada wanted to signal that its previous reliance on negotiation had ended and that it was returning to the philosophy that the law applied to everyone equally.
So, within environment Canada, which officials enforce the Canadian Environmental Protection Act and the pollution prevention provisions of the Fisheries Act? In both cases, enforcement officials are individuals designated as inspectors.
It is inspectors that have the most frequent and regular contact with government departments and other federal bodies affected by the legislation. Inspectors have three principal roles. They can:
carry out inspections to verify compliance with the law;
direct that preventive or corrective measures be taken in an emergency when there is danger to the environment, human life or health, caused when the unauthorized release of a regulated substance has occurred or is about to occur; and
conduct investigations to obtain evidence of violations.
They can also review options for preventive and corrective action generally, explain legal requirements, including warning of potential violations, in order to assist government agencies as well as individuals and companies in meeting their obligations under the Canadian Environmental Protection Act and the Fisheries Act. That activity by inspectors must be undertaken with great care in order to ensure that inspectors who are, after all, enforcement officials do not inadvertently assume the role of a technical consultant.
Inspectors normally have training in engineering or sciences like biology, chemistry, geology or Environmental sciences. It is this background that enables inspectors to understand fully and enforce regulations such as those that deal with liquid effluents, atmospheric emissions, limits for releases to the environment of toxic substances, and storage of toxic substances such as polychlorinated biphenyls or PCBs.
Some inspectors may specialize strictly in the investigation of offences. Those investigation specialists have expertise in areas such as:
investigative techniques;
gathering of evidence and procedures to ensure continuity in the control and custody of evidence;
taking statements and soliciting information from witnesses;
securing and execution of search warrants;
court procedures;
preparation of special reports for crown prosecutors who bring charges laid under the Canadian Environmental Protection Act and the pollution prevention provisions of the Fisheries Act to trial; and
appearing as witnesses in court proceedings.
Investigation specialists may be scientific personnel having the same background as other inspectors, may be former Environmental investigators for a provincial or territorial government, or former police officers.
But what do these statutes and the inspector and investigation functions described above mean in the day-to-day world of the operations of Canadian government departments? It means that the government of Canada is serious about "going green". It means that, under the Canadian Environmental Protection Act and the pollution prevention provisions of the Fisheries Act, inspectors will verify compliance at federal facilities. And they will be every bit as serious about the need for those facilities to comply with the law as if they were inspecting a private company.
Under CEPA and the Fisheries Act, federal government employees are personally responsible for unlawful acts done by them in the course of carrying out their duties. This principle applies to everybody -- ministers included:
Federal employees can be personally liable if:
they knowingly violate a regulation under CEPA or the Fisheries Act;
they are unaware that a regulation exists and they violate it (this is because federal employees are responsible for knowing the regulations under the Canadian Environmental Protection Act and the Fisheries Act that apply to their work);
they know that a regulation is being, or will be violated, and they do not report to their supervisor;
they falsify information or neglect to provide full information about a violation or suspected violation when requested to do so by the minister of the environment or a CEPA or Fisheries Act inspector; and
a CEPA or Fisheries Act inspector has directed the employee to take preventive or remedial action when there is a release or potential release to the environment of a regulated substance that will violate the law, and the federal employee does not obey the direction.
In keeping with the 1988 commitment by the government of Canada to be exemplary in its Environmental behavior, federal departments and their employees have a moral obligation to show leadership by practicing sound Environmental management.
Sound Environmental management involves three basic things:
preventing violations before they occur;
reporting violations; and
reducing the harm and correcting any damage caused by violations.
One of the best ways to prevent violations before they occur is to know the law ond accompanying regulations. Environment Canada believes that promotion of compliance through information and education is essential. Promotion is an effective tool in securing conformity with the law. Accordingly, environment Canada undertakes public education and information transfer, through distribution of publications, activities such as seminars for both government and private industry, technology development and technology transfer programs, and consultation during the development of new regulations and the amendment of existing ones.
Under its public education and information program, environment Canada distributes upon request:
copies of the Canadian Environmental Protection Act and of the Fisheries Act and their accompanying regulations;
Environmental quality guidelines and objectives, guidelines governing the release of substances to the environment, and Environmental codes of practice;
the enforcement and compliance policy for CEPA and, when it is published within the next few months, the compliance policy for the habitat protection and pollution prevention provisions of the Fisheries Act;
a list and short description of court decisions related to the statutes and their regulations; and
fact sheets, handbooks and reports on relevant subjects.
Environment Canada does not want to see any surprised looks on the face of officials who work elsewhere among the federal family of departments, boards and agencies. While environment Canada's role is to protect the environment in accordance with federal laws, it is in the department's interest to help meet the Canadian government's overall commitment to Environmental protection and to exemplary behavior by federal institutions. After all, we don't want to see violations anywhere, and knowledge of the law and regulations is the first step to ensure that regulatees comply. Also, since 1988, environment Canada has held over 26 major educational and information sessions with other federal government departments, boards, commissions, agencies and federal crown corporations. This figure does not include the numerous smaller, informal sessions that have been held or the technical sessions for discussion of items like specific pollution control technologies, testing protocols, sampling techniques and Environmental effects monitoring.
Environment Canada believes that, during regulation development or amendment, consultation with both regulatees and the beneficiaries of regulation results in better and more effective environmental protection instruments. The department also recognizes that compliance with regulations is more likely when regulatees have been involved in regulation development. For those reasons, environment Canada regularly consults with affected parties:
at the stage of determining whether an environmental problem exists that requires resolution;
at the stage of choosing the appropriate tool for control, including codes of practice, guidelines for release to the environment of toxic substances, as well as regulations; and
during the development of the regulation itself.
Canadian federal regulations must be published in a national register called the Canada gazette. Regulations are first published in part of the gazette and there is a comment period during which anyone -- companies, Environmental groups, Environmental law specialists from the private sector, and ordinary citizens -- may send comments to the government of Canada. The government's regulatory policy calls for a comment period of at least 30 days. Therefore, for regulations under the pollution prevention provisions of the Fisheries Act, the minimum comment period is 30 days. However, the Canadian Environmental Protection Act provides for a longer period, namely a minimum of 60 days.
The consultation with affected parties and the public reduces the annoyance and anger of regulatees who will likely be antagonistic if they believe that government is "springing" something on them with no opportunity for them to have their say. That doesn't mean that grudging compliance is avoided, because most of us don't like rules -- but at least again, no surprises.
When a CEPA inspector carries out an inspection for the first time at a facility, whether government or private sector, he or she brings a copy of the Canadian Environmental Protection Act, the relevant regulation and the CEPA enforcement and compliance policy. This ensures that the person in charge of the facility has in his or her possession copies of the legal requirements and the policy under which CEPA inspectors operate. The same conduct applies for inspections under the pollution prevention provisions of the Fisheries Act.
5 RESPONSES TO VIOLATIONS
Now, I wish to talk about the responses to violations used by inspectors and investigators under the Canadian Environmental protection and Fisheries Acts. If an inspector or investigator is able to substantiate that a violation of CEPA or the Fisheries Act took place, they will take action consistent with specific criteria and choose the appropriate enforcement measure from the different types that I will review shortly.
First, the criteria -- when inspectors discover a violation, they will apply the following factors when deciding what enforcement action to take:
nature of the violation -- this includes consideration of the seriousness of the harm or potential harm, the intent of the alleged violator, whether this is a repeated occurrence and whether there are attempts to conceal information or otherwise subvert the objectives and requirements of the act.
Effectiveness in achieving the desired result with the violator -- the desired result is compliance with the act, within the shortest possible time and with no further occurrence of violation.
Factors to be considered include the violator's history of compliance with the act and regulations, willingness to co-operate with enforcement officers, evidence of corrective measures already taken, and whether other federal, provincial or territorial authorities are taking enforcement action for the same offence under another statute.
Consistency in enforcement -- enforcement officers intend to be consistent in their handling of violations. Therefore, they will consider how similar situations were handled when deciding what enforcement action to take.
The Canadian Environmental Protection Act and the pollution prevention provisions of the Fisheries Act, administered by environment Canada have a limited range of enforcement measures that inspectors can use. Those measures are:
warnings, used under both statutes;
directions by inspectors, provided under both statutes;
ministerial directions under the Fisheries Act allowing the minister to request regulated facilities to carry out monitoring or to provide the minister with certain data, measurements, or other information;
ministerial orders under the Fisheries Act to restrict, change or close down a polluting operation, but only with approval of the federal cabinet;
remedial orders, only available under the Canadian Environmental Protection Act, that enable the minister to Recall, from the marketplace, toxic substances or products containing toxic substances that violate the law;
prohibition orders, also only available under the Canadian Environmental Protection Act, that enable the minister to prohibit manufacturing, importing, distribution, use, processing, sale and so on for substances that are new to the Canadian marketplace and that have been manufactured or imported in violation of the law;
injunctions to stop illegal activity or to prevent it from taking place, available under both the Fisheries Act and the Canadian Environmental Protection Act;
prosecution, of course; and
civil suits to recover costs such as funds spent to clean up toxic or harmful substances released illegally into the environment or into water where fish are found, funds spent by inspectors to prevent illegal releases, or spent to publish information that individuals, companies or government agencies had failed to publish when ordered to do so by the courts.
While both statutes provide authority to issue tickets, similar to tickets for speeding or parking fines, CEPA and Fisheries Act inspectors do not have that tool available to them yet. However, under the federal contraventions act, which will likely be in effect by January 1, 1994, environment Canada enforcement officials will be able to issue tickets for certain violations. Because tickets are designed to be issued for offences where evidence is immediately observable, environment Canada has limited ticketable offences to those that involve failure to file reports by the prescribed date, failure to include all required information in reports, failure to have identifying labels on containers of chlorobiphenyls or PCBs, and other similar offences.
All these enforcement tools can be used against individuals, private companies and government bodies that violate federal environmental laws. But there are difficulties that we encounter when environment Canada inspectors inspect and investigate, and from time to time, bring charges against other federal departments and agencies. In Canada, it is still a relatively new thing for one federal body to prosecute another for violating federal environmental laws. Many federal departments still do not fully realize that they are subject to the law. And they tend to feel almost hurt by the notion that another department would hold them to account for their actions. They sometimes express the view that all federal departments are part of the same family and should protect each other from punitive action. The cases described below give an idea of these problems.
An inspector under the Canadian Environmental Protection Act observed a dredge operated by a federal department which appeared to be carrying out work in violation of a permit granted under the ocean dumping provisions of CEPA. The dredge was operating in June when its permit obliged it to operate three months later in the month of September.
The inspector investigated and confirmed that the dredging violated the permit. He detailed the nature of the violation and began to prepare evidence in order to apply for a search warrant. The search warrant was executed at two locations belonging to the department -- at the dredge and a regional office of the federal department. All the evidence gathered led to charges being laid against the federal department.
This was the first time that a federal department was charged under the Canadian Environmental Protection Act. And because it was a matter of one government body charging another, that is the queen vs. The queen, environment Canada used a prosecutor who was not an employee of the federal department of justice but was in private practice, to avoid problems of conflict of interest for the department of justice who acts as solicitor to all federal departments.
Environment Canada's objective in this case was a significant penalty and a finding of guilty to deter other departments and managers from neglecting their obligation to comply with the law.
The court decision rendered on June 4, 1992 was more punitive than either environment Canada or the defendant expected! The sentence was a fine of $1.00 without costs. But the court also imposed an order directing Environmental restoration work at a landfill site to a value of not less than $100,000, to be carried out on or before June 4, 1993. The presiding judge also stated two important things:
while the actions of the defendant were not malicious or premeditated, they could not be forgiven; and
that government employees must be held to the strictest standards because the public entrusts them with protecting the environment.
Another case may also be of interest to you. In 1988, there was a disastrous fire at a warehouse where a toxic substance, namely chlorobiphenyls or PCBs, was stored in enormous quantities. About 3,000 people were evacuated from their homes for nearly three weeks while the fire was brought under control and cleanup of toxic residues took place. The environment minister then proclaimed, under the Canadian Environmental Protection Act, an emergency order setting out stringent requirements for storage of PCBs to avoid another such incident.
After the order was in effect, a CEPA inspector carrying out a routine inspection at a federal facility discovered PCBs stored in contravention of the order. He issued an inspector's direction under section 36 of the Canadian Environmental Protection Act. But the federal facility refused to comply, saying that it had no budget to store the toxic substance in accordance with the order. Further inspections continue to reveal a failure to comply. The manager for the facility even offered inducements to the CEPA inspectors to close their eyes and forget about the violations.
This all led to environment Canada seeking a search warrant to gather evidence against the federal facility. Environment Canada inspectors executed the search warrant and found evidence of continuing violation as well as evidence of the quick attempt to store some of the PCBs as required under the emergency order.
Charges were brought by environment Canada against the federal facility and its manager for violation of the order made under the Canadian Environmental Protection Act. Faced with the amount of evidence submitted against the facility and the manager, both agreed to plead guilty. The court levied a $25,000 fine against the federal facility and, in return for a guilty plea, gave a conditional discharge to the manager which directed him to pay $5,000 to an Environmental fund and to undergo six months' probation.
A third case involves deposit of a deleterious or harmful substance to water where fish are found. Under the pollution prevention provisions of the Fisheries Act, it is prohibited to deposit substances that are harmful to fish to any water where fish are found, or to any place from which the substance can enter water where fish are found, unless the deposit is authorized by regulations under the Fisheries Act or another federal law.
At one of its regional offices, a federal department violated the prohibition contained in the pollution prevention provisions of the Fisheries Act. Apparently, over a 12 month period, gasoline and diesel oil leaked from tanks into storm sewers and then into fishery waters. Gasoline and diesel oil are substances that is known to be harmful to fish, and there are no federal regulations authorizing the deposit of gasoline and diesel oil to water where fish are found.
The department had developed policies and procedures to deal with environmental hazards. Environment Canada's evidence showed that those policies and procedures were not followed in this case.
In view of the nature of the offence and the seeming lack of due care, environment Canada brought charges against the department for the illegal discharge. There have already been two weeks of trial on this matter, and, in September 1992, the trial judge will hear the department's argument that one federal department cannot charge another with a violation of federal law.
As I mentioned earlier, section 2 of the Fisheries Act states specifically that the federal government is subject to the statute and all its regulations. With that clause and after the June 1992 judgment that found a federal department guilty of charges brought by environment Canada for a violation of federal Environmental law, you might think that the validity of the queen bringing charges against herself would be established. But the defense lawyers intend to pursue the argument anyway. We will see what the courts decide in September. But, while we are not complacent, we are not worried. Environment Canada is confident that the principle of federal law applying to federal departments is well founded.
6 CONCLUSIONS
Environment Canada hopes that these cases and others currently under investigation will help drive home the notion that the federal government must comply with its own laws. But we, in Canada, are still feeling our way through the legal and policy matters surrounding one entity of the queen charging another with violating federal Environmental law. That has not, however, weakened our determination to set the federal house in order and ensure that federal departments and agencies comply with environmental law.