Compliance and Enforcement at MOE
Contents |
Introduction
Ontario has some of the best environmental legislation in the world. Indeed, some Ontario laws and policies, particularly those developed by the Ministry of the Environment, have been studied and adapted by lawyers and policymakers in other jurisdictions for decades.
Legislation and regulations are important. However, they are effective only when companies and residents comply with them – and if ministries enforce them when they are contravened. Compliance with a particular Act or regulation is usually said to be achieved when a large portion of companies and residents subject to its requirements adhere to it.
Ontario residents want to be assured that our environmental laws are being followed by industries, municipalities and others who discharge pollutants. Fair, firm and consistent enforcement ensures that good environmental performers are recognized for their efforts and poor performers are penalized. Moreover, firm enforcement ensures that ecosystems are protected and human health is safeguarded.
Some of the rights contained in the EBR were created to promote greater transparency and accountability in the enforcement process, and to encourage ministries to implement compliance policies that protect ecosystems and natural resources. For example, the Ontario government enacted the application for investigation provisions of the EBR so that the public could request that certain ministries investigate situations involving suspected non-compliance with Ontario’s environmental laws.
Moreover, the office of the Environmental Commissioner of Ontario was established in 1994 to ensure that the Legislature and the public are provided with an independent assessment of how well the ministries are administering Ontario’s environmental laws, including compliance functions.
Scope of this Review
Evidence collected by the ECO suggests that enforcement and compliance activities in several ministries remain uneven across the province and contravenors often are not brought to justice in cases where firm action appears warranted. In the text and charts below, we have summarized some of the cases that were reviewed by the ECO. Since many of the most troubling cases arose in relation to MOE files, the Commissioner directed staff to undertake a review of MOE’s approach to compliance.
How MOE Administers its Environmental Laws
MOE administers four key Acts – the Environmental Protection Act (EPA), the Ontario Water Resources Act (OWRA), the Pesticides Act, and the Environmental Assessment Act – and more than 90 regulations established under those Acts. The goals of this regulatory regime are aimed at enabling the ministry to protect the environment, prevent pollution, control activities that generate or emit contaminants, and punish those who do not follow Ontario’s environmental laws. These statutes provide a range of tools that can be employed by ministry staff to promote compliance and enforce laws. To provide staff with guidance on how to use these tools and how to decide when to prosecute a contravenor, MOE has developed a series of policies and procedures. The most important MOE policy is probably the ministry’s Compliance Guideline, which was first developed in the mid-1980s when the Investigation and Enforcement Branch was created. (See MOE's Approach to Compliance.)
Policy Developments on Compliance Between 1995 and 1999
MOE’s Compliance Guideline was last formally revised in June 1995. Under this guideline, MOE uses both abatement and enforcement to ensure compliance with the various environmental laws within its mandate. When an infraction occurs under an MOE Act or one of its regulations, MOE has a range of enforcement options.
At present, MOE employs approximately 30 full-time, permanent investigators and hundreds of provincial officers and field staff, who inspect facilities and undertake abatement activities. (This excludes staff who are part of the SWAT Initiative described below.) The number of Investigation and Enforcement staff at MOE was reduced from 97 in 1995 to 87 in 1999. This led to a sharp decrease in ministry-initiated inspections between 1996 and 2000. A December 2000 report released by the Provincial Auditor found that between 1996 and 2000, MOE decreased ministry-initiated inspections by 34 per cent. This corresponded with a 25 per cent reduction in Operations staff responsible for inspections and abatement work during the same period. In addition, MOE also cut the number of staff and resources available to MOE’s Legal Services Branch and at MOE’s Laboratory Services Branch. As noted below, these branches also play important roles in MOE’s enforcement and compliance activities.
Further proposed amendments to the Compliance Guideline were posted on the Environmental Registry in July 1997 for a comment period of 45 days. The proposed amendments to the guideline were intended to provide clarification and guidance to MOE staff on the allocation of environmental liability to responsible parties when issuing clean-up orders. At the time, MOE indicated that this was interim guidance, pending further work by the ministry’s Environmental Liability Working Group.
Delivery Strategies
While the Compliance Guideline provides general direction to MOE staff on addressing occurrences
that adversely affect the environment, day-to-day work priorities are often established using a range
of management tools, such as annual workplans that set out the targets for inspections. Since late
1997, MOE’s Operational Delivery Strategies have guided staff as to where financial and staff
resources should be focused. The lengthy Delivery Strategies include extensive and complex policy
initiatives covering all aspects of MOE’s operations. Developed between 1996 and 1998, the Delivery
Strategies provide the following types of information to staff:
- Guidance on how managers and staff should set program priorities for work plans, inspection work and program management.
- Explanations as to how MOE staff should handle gaps and lack of clarity in MOE’s legislative framework and internal guidance and policy documents.
- A list of categories of pollution incidents to which staff are not supposed to respond.
For each operational program area, a Delivery Strategy sets out a program description, the regulatory framework, compulsory activities, program priorities, how to determine Operations Division involvement, and implementation considerations. The Delivery Strategies were not posted for public comment on the Registry and are not available for reference by the public.
Procedures for Responding to Pollution Incident Reports (PRPIRs)
Complementing the Delivery Strategies are the Procedures for Responding to Pollution Incident
Reports (PRPIR), developed in 1997. These are explicit guidelines developed to aid MOE staff in
deciding which environmental problems will receive a response from MOE, and which will be
referred elsewhere. These guidelines define four levels of priority according to the extent of an incident’s environmental significance – a priority field response, a field response, no field response, or
no further response. In the Supplement to the 1997 annual report, the ECO noted that this operational policy was developed in a priority-setting process in 1997, but not posted on the Registry for
comment or released to the public. MOE claimed that it was not posted because of a security element: disclosure might aid those who violate environmental protection laws. However, the ECO
pointed out that the ministry could have posted aspects of the policy that were suitable for public
comment, and kept confidential those aspects that would pose a security risk.
The PRPIR guidelines suggest that MOE staff should refer certain callers and complainants to municipalities and other agencies if the activity is one that is not considered a priority. While protecting air quality is a priority for MOE, Operations Division staff are not expected to deal with complaints that relate to noise, odour, dust and smoke. All complaints involving residential noise (e.g., idling cars), odour (e.g., roof tarring), or smoke (e.g., from barbecues, fireplaces or wood stoves) are referred to the local municipalities. Other incidents may be referred to other provincial ministries or agencies. There is no indication that the PRPIR were developed in consultation with municipalities or other ministries, or whether they were given the tools to deal adequately with the pollution incidents now being directed to their attention.
As an example of how the PRPIR is used, in 1998 the ECO received an application for investigation from applicants who alleged that a neighbour’s wood-burning stove was producing noxious fumes, smoke and noise to the point of interfering with the normal use of the applicant’s property. MOE denied the request for an investigation, stating it was not within its jurisdiction to respond to smoke and odour related to the operation of wood stoves and referred the applicants to the local municipality or fire department. The incident in the application presented an alleged violation of S. 14 of the EPA, which prohibits the discharge of a contaminant into the natural environment that is likely to cause an adverse effect. The ECO believes the investigation was denied because staff were fol- lowing procedures established by the PRPIR.
Voluntary Agreements
In addition to the Delivery Strategies and PRPIR, MOE’s use of voluntary agreements for environ-
mental protection increased between 1995 and 2000, as the ministry looked for cost-effective ways
to deliver its mandate. In the ECO’s 1997 annual report, we noted that ministries were beginning to
promote voluntary agreements, and called for these ministries to establish a general legal and policy framework for their use, after broad public consultation. MOE did not respond to this recommendation with a legislative or policy framework.
Implications of Bill 82
In 1998, the Ontario government passed Bill 82, which amended environmental protection statutes to strengthen enforcement and investigation powers and penalties. The stronger enforcement and penalty provisions allow provincial officers to issue a broader range of orders, extend provisions that prohibit the illegal disposal of waste and introduce new penalties for polluters, such as increased maximum fines, wider use of jail terms, restitution orders, forfeiture of items seized as a result of an environmental offence, and court-directed forfeiture for collecting unpaid fines. Bill 82 also gave MOE the regulatory authority to introduce administrative monetary penalties (AMPs) for minor environmental infractions.
The regulation allowing the use of AMPs had not yet been implemented by the end of the comment period. However, MOE feels AMPs will be a key enforcement tool to help compel timely compliance with environmental protection legislation. These monetary penalties will be imposed, through an administrative process rather than through the courts, on those who violate environmental laws and regulations. MOE intends to use AMPs to capture some of the approximately 5,200 occurrences per year that are not currently being pursued. (According to MOE statistics, ministry staff forward more than 6,000 occurrences per year to the IEB. From April 1, 2000, to March 31, 2001, 963 tickets were issued by Abatement, the IEB and the Smog Patrol under Part I of the Provincial Offences Act (POA). Other occurrences were pursued as offences under Part III of the POA.) Once implemented, AMPs should prove to be a positive development for the ministry, as they will reduce the amount of staff time required to pursue offences. MOE has advised the ECO that it expects to post a proposal notice soon for a regulation creating AMPs on the Environmental Registry, and the ECO looks forward to reviewing this in a future report.
In November 2000, the government enacted new legislation, the Toughest Environmental Penalties Act (TEPA), which greatly increased the maximum penalties for major environmental offences. (See Toughest Environmental Penalties Act for more information about this legislation.)
The Shift Back to Mandatory Abatement
In the fall of 2000, the ECO was contacted by several stakeholder groups and by representatives of industry who had been advised that the ministry’s internal policy had shifted from voluntary to mandatory abatement. These stakeholders were advised that ministry staff are now supposed to issue orders when they identify compliance problems, instead of agreeing to voluntary abatement strategies as outlined in the current Compliance Guideline.
The ECO contacted staff in MOE’s Environmental Bill of Rights Office and requested additional information about this alleged shift in approach. We were concerned that such a shift to mandatory abatement should have been made public through explicit amendments to MOE’s Compliance Guideline. We were advised that MOE’s approach to abatement had not changed, and that no amendments to the Guideline would be posted on the Registry. Thus, the ECO decided not to pursue this matter as an unposted policy decision.
However, during the Walkerton Inquiry, an internal MOE memorandum, disclosed as part of the Inquiry evidence, announced a major shift in MOE’s internal policy – from voluntary to mandatory abatement. The MOE memo, distributed to all district managers and supervisors in March 2000, called for strict compliance with MOE’s Compliance Guideline and announced a movement away from voluntary abatement and towards mandatory abatement. The memorandum put forward a new interpretation of the section of the Compliance Guideline that previously permitted MOE to use voluntary abatement measures in specific situations. The memorandum sets out an expectation that, where even one of the mandatory criteria exists, a control document will be issued and mandatory abatement pursued. The memo states that MOE management expects that the use of voluntary abatement, where one of the mandatory criteria exists, will be the exception and will require authorization by a District Manager.
There are a number of other indications that MOE is taking a more aggressive approach to compliance. In testimony provided to a Standing Committee in April 2001, MOE’s Deputy Minister advised that enforcement efforts have greatly increased recently. Thus, in 2000, MOE issued 1,265 orders, as opposed to 307 orders in 1999.
MOE’s SWAT Initiative
On September 21, 2000, MOE announced the creation of a “ highly mobile and focused compliance, inspection and enforcement SWAT team” to “ crack down on deliberate and repeat polluters and ensure they comply with Ontario environmental laws.” The team, which includes inspectors, investigators, environmental engineers, environmental program analysts, scientists and a laboratory technician, was described by the minister as a “ new group of environmental officers with an innovative approach.” According to MOE, the SWAT Team is designed to:
- operate as a separate inspection, compliance, and enforcement unit within MOE, with its own management structure and support services.
- operate with advanced technological support to provide leading-edge environmental compliance.
- consist of investigators who will focus solely on the investigation and prosecution of environmental infractions identified by the team’s compliance inspections.
- provide the results of its compliance, inspection and enforcement activities to the public.
For several years, the ECO has recommended that MOE be provided more resources to carry out its compliance role effectively. New compliance resources are a welcome development. However, the ECO also recognizes that this initiative is part of the shift in compliance that took place in early 2000, which included a shift away from voluntary abatement measures. In this light, the creation of SWAT appears to be directed at achieving compliance results as quickly as possible. As evidence of this, the SWAT team has found a 45 per cent rate of non-compliance in approximately 100 inspections con- ducted in two industrial sectors up to the close of our reporting year.
For the following reasons, the ECO believes that the success of SWAT will depend on public disclosure, compatibility with existing ministry compliance programs, and accountability and transparency.
- Public disclosure: This promised aspect should help to build public confidence in the SWAT approach. The unit is supposed to make its activities public and to have its own Web page. However, the ECO has not yet found evidence of this.
- Compatibility with existing ministry compliance programs: Though a separate unit, the SWAT team will need to work with the existing MOE Investigation and Enforcement Branch. Compatibility is a must – or the public may question the efficiency of establishing a separate unit rather than shoring up existing compliance efforts.
- Accountability and transparency: If the new body appears to be operating independently of existing provincial enforcement goals and programs, then its accountability might be questioned. The public and the regulated community will need to know if the unit will operate in the same manner or different from existing compliance procedures.
The Environmental Commissioner welcomes the strengthening of compliance efforts in the province, and awaits the results of this new approach to compliance. We will continue to monitor the SWAT initiative to ensure that lasting environmental protection, accountability, and effectiveness are hallmarks of this new development.
Pollution Hotline
In April 2001, MOE launched a new toll-free, 24-hour public hotline for reporting pollution Announcing the hotline, the Minister of the Environment stated that it is another part of the government’s commitment “ to get tough on polluters and strengthen environmental compliance and enforcement.” MOE also stated that the hotline will be used to “ gather information on new and emerging environmental issues.” The pollution hotline is answered at the existing 24-hour Spills Action Centre hotline for reporting spills and emergencies. However, the ECO has been made aware of situations where the hotline has not dealt appropriately with calls. It is also unclear what criteria are being used when information is received by the hotline.
Indicators of Continuing Compliance Problems
Applications and Complaints to the ECO
In recent years, the ECO has received a number of complaints relating to enforcement and compliance issues. For example, in our 1999-2000 annual report, we noted that three applications for investigation were submitted by applicants who were concerned with noise and odour impacts on their health, their property and the environment. The sources of noise and odours included a drag strip raceway, a milling operation, and a recycling plant. MOE did investigate the allegations contained in these applications and found either a clear contravention of Section 14 of the EPA or an adverse environmental effect in each case. Yet the ministry did not take any direct enforcement action against any of the contravenors.
In 2000, the ECO received an application that called for a review of the compliance approach used by MOE’s eastern Ontario office, alleging that the office was not applying the Compliance Guideline consistently and diligently, particularly with respect to a certain waste management operation. MOE denied the request for review and defended its recent enforcement activity at this facility. But MOE failed to respond fully to the broader concerns of the applicants about its approach to compliance. (For a full description of this application, see pages 196-197 of the Supplement to this report.)
Biosolids
The ECO has noted a growing public concern about the management of septage, sewage treatment operations and sewage sludges in Ontario since 1999. The ECO has also received several applications requesting a review or investigation of these matters. In most of these applications, the complainants feel that the existing guidelines, regulations and systems of compliance that govern these activities are unable to provide acceptable resolutions to their concerns. We believe that these trends collectively indicate that greater compliance and enforcement action are required in this area (for greater detail, see Management of Septage and Sewage Sludges of this report). The trends also indicate that the public expects a clearer and more transparent account of MOE’s compliance procedures for biosolids, including how the biosolids guidelines are applied.
Safety-Kleen
The Safety-Kleen facility is Ontario’s only commercial hazardous waste landfill and incinerator. Given the nature of this facility’s activities, it is, not surprisingly, subject to heightened public concern. The ECO received two applications for investigation in the reporting year related to this facility. These applications highlighted the fact that since January 1998 this facility has been the subject of hundreds of complaints. The ECO also requested copies of and reviewed almost 300 occurrence reports logged by MOE in a 25-month period between 1998 and 2000 related to Safety-Kleen’s operations. A voluntary approach has been used extensively over this period to attempt to resolve compliance issues such as complaints from residents about odour, exceedances of air emissions and groundwater limits, and instances of non-compliance with reporting requirements. Safety-Kleen has arrangements with MOE so that the facility itself in many instances investigates complaints about its own non-compliance incidents, and reports back to MOE without verification or validation by the ministry. When MOE has confirmed non-compliance, the ministry has usually requested the facility to provide a mechanism and a timeframe for achieving compliance instead of using mandatory compliance measures. The large and continuing number of complaints suggests that the voluntary approach may not be capable of solving some of the problems that can result from such operations.
Furthermore, based on our review, it is apparent that MOE is inconsistent in dealing with similar occurrences at this site, sometimes referring them to its Investigation and Enforcement Branch and sometimes not. The ECO believes that Safety-Kleen’s track record on resolving issues through the voluntary approach indicates that MOE’s decision to shift toward mandatory compliance was appropriate and long overdue. In late 1999 and 2000, MOE did issue some orders against Safety-Kleen related to a leak in the landfill, and closed the facility for 10 days. (For more on this facility, see Safety-Kleen).
Contraventions Revealed by Inspections
In the wake of the Walkerton tragedy, MOE undertook a large number of inspections of water treatment plants and other facilities. MOE data from this blitz indicated that when inspections took place (in 1999/2000), significant contraventions were found in 31 per cent of the investigations. According to MOE, the most common deficiencies at the plants inspected included:
- insufficient frequency of sampling for bacteria or chemical analysis.
- inadequately maintained disinfection equipment.
- a lack of chlorination for groundwater.
- a lack of filtration, coagulation and flocculation (processes to remove particles) for facilities using surface water.
- inadequate training or inappropriate certification for plant operators.
The ECO believes that MOE would have generally been aware that these kinds of problems existed at water treatment plants before the blitz took place in 1999 and 2000, and that mandatory measures to correct these deficiencies could have been applied sooner. During the inspection blitz, MOE issued orders to take corrective action to at least 311 facility owners. The ECO believes that the high rate of deficiencies found and orders issued indicates an ongoing problem with compliance prior to 1999. Such a high incidence of non-compliance also suggests that previous attempts at voluntary compliance have not been successful and greater enforcement is needed through regular inspections.
Fluctuating Prosecution Rates
The prosecution of contravenors is only one component of a compliance and enforcement strategy. Nevertheless, the number of charges laid by MOE is an important indicator of the extent and type of compliance activity. When compliance policy favours mandatory action rather than voluntary abatement, there will be an increase in charges laid and the corresponding number of convictions. Also, the possibility of an environmental charge acts as a deterrent to illegal activity. The benefit of having a significant number of charges laid by MOE with a possibility of conviction is thus twofold: it punishes those who are not in compliance and deters those who may be verging on non- compliance.
Charges for environmental offences and convictions based on those charges reached an all time low in 1996. In 1992, 2,158 charges were laid by MOE. In 1995, 1,045 charges were laid, resulting in 504 convictions. The numbers dropped again in 1996 to 758 charges, resulting in 366 convictions. After 1996, charges and convictions numbers rose. In 1997 there were 951 charges and 418 convictions. In 1998 there were 805 charges and 414 convictions, and in 1999, 1,216 charges and 611 convictions. Finally, in 2000, MOE laid 1,796 charges, which resulted in 770 convictions.
Increasing Use of Orders
In the reporting period, the ECO noted a shift toward MOE’s issuing more Provincial Officers’ Orders under both the EPA and the OWRA. According to MOE, there was a 312 per cent increase in the number of orders issued in 2000 from 1999. This is probably the result of amendments made to these Acts by Bill 82 and TEPA, and indicates MOE’s shift back to mandatory enforcement.
Failure to Review Older C of A
To promote compliance with current laws and regulations, MOE should regularly review older Cs of A to ensure that they are updated to reflect changes in technologies and equipment at plants, and to ensure that current standards are followed by operators. Certain MOE compliance tools are in the form of guidelines that have the force of law only when contained in a C of A.
It has been estimated that companies and individuals rely on nearly 220,000 Cs of A to conduct their operation – and that many are more than 20 years old. Each year, MOE issues approximately 8,000 new Cs of A. It is essential that MOE staff exercise great care when these new Cs of A are issued. Evidence presented to the Walkerton Inquiry suggests that ministry staff were failing to inspect and review existing Cs of A to ensure compliance with current MOE standards. In the wake of Walkerton, MOE decided to review all the Cs of A for water treatment plants. Moreover, MOE has stated that it intends to ensure that many older Cs of A for facilities are reviewed in the coming years.
Confusion About the Roles of Voluntary and Mandatory Compliance
In his 1999/2000 report to the Ontario Legislature, the Provincial Auditor found that in certain instances environmental officers, charged with enforcing non-compliance, “ responded inappropriately, such as using voluntary compliance measures where mandatory compliance was required. . .” and was concerned “ . . .that the guidelines allowed environmental officers the discretion to use voluntary measures even in cases of significant or repeat violations and in cases where corrective action had not been taken on a timely basis.”
The Auditor’s finding demonstrates that the shift prior to 1998 toward more voluntary measures was creating confusion among staff out in the field. A former Assistant Deputy Minister with MOE has acknowledged that many staff were unsure about how to implement voluntary compliance measures or when they should do so. It was also felt by many that the traditional enforcement measures would be more effective in achieving compliance, but they were receiving directives from the minister to limit their use. In fact, in 1998, training of field staff was conducted to ensure they fully understood the new policy surrounding the Delivery Strategies and the PRPIR. The training was seen as necessary because the staff had never been privy to the confidential Cabinet documents.
Conclusion
The ECO notes MOE’s significant shift since spring 2000 toward requiring greater mandatory compliance. There is evidence that voluntary approaches to compliance are less effective than mandatory compliance at achieving important environmental goals and that they have the notable weakness of frustrating complainants.
The ECO acknowledges there are new resources at MOE for compliance and agrees that they are required. It is too early to determine whether SWAT will be an effective approach to increasing compliance. AMPs could be an efficient and effective new development.
The ECO commends MOE for reviewing all the certificates of approval for municipal water treatment plants and for analyzing water treatment plant compliance during the reporting period. The ECO encourages MOE to continue in this positive direction and implement better compliance procedures in other sectors as well.
As indicated by our review of MOE’s PRPIR policy, by applications for investigation received by the ECO, and by the lack of enforcement of the 3R regulations (described in Compliance with the 3R Regulations), there are significant continuing problems with compliance and enforcement. It’s clear that MOE should focus its attention on existing laws and regulations that are not being enforced at the present time.
It is important that the public see consistent evidence of mandatory compliance in order to restore confidence in the ministry’s ability to protect human health and the environment. MOE must also clarify its Compliance Guideline so that both MOE staff and the public can understand how it is to be interpreted.
| Recommendation 6:
The ECO recommends that MOE make its compliance policies and procedures consistent and clear to the public, to MOE staff, and to the private and municipal sectors. |
| Recommendation 7:
The ECO recommends that MOE and MMAH review the need for enabling legislation, such as amendments to the Municipal Act, in order to allow municipalities to implement properly the environmental compliance responsibilities delegated to them by MOE. |
| This is an article from the 2000/01 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2001. "Compliance and Enforcement at MOE." Having Regard, ECO Annual Report, 2000-01. Toronto, ON : Environmental Commissioner of Ontario. 72-84.
