The Ontario Ministry of Environment, Conservation and Parks (MECP) currently has a proposed posting that will expand administrative penalties for environmental contraventions.  The  period for submitting comments ends March 13, 2022.

The Environmental Penalties regulation (O. Reg. 223/07) is not a new regulation by any means.  The regulation was first established in 2007 to assign financial penalties for contraventions related to the Ontario Water Resource Act.   This regulation was amended in 2018 to include contraventions under the Sulphur Dioxide Discharge Regulation (O. Reg. 530/18). 

At a high level the proposed amendments to the Environmental Penalties Regulation essentially include “everything and anything”.   Including contraventions under Section 14 of the Ontario Environmental Protection Act which addresses contaminant discharges to the natural environment if the discharge causes or may cause an adverse effect.  Facilities should also be aware that the proposed list of financial penalties extends to reporting and record keeping requirements.  (O. Reg. 1/17 Section 35 - –“.... retain each report, supplement and plan...  ...for at least 20 years after the date the document was signed.”)

Another aspect to keep in mind is that a due diligence defense (we did everything to prevent an adverse effect), although may reduce the overall fine does not protect facilities from being subject to a financial penalty.   Industries also need to understand that the MECP may issue a penalty not only to the corporation but also to an employee, officer, director or agent of the corporation, if that individual authorized, assented to, acquiesced or participated in the commission of the contravention.

To be fair MECP is clear to point out that assessing Environmental Penalties is not mandatory and conceptually other compliance pathways would take precedent such as education, outreach, notice of violation (warning), and submission of a compliance plan.  The track record on how MECP has implemented Environmental Penalties to existing facilities as insight into how these may be applied in the future would indicate that, aside from exceeding discharge limits, not adhering to the terms and conditions specified in an Environmental Compliance Approval (e.g.: equipment calibration) may also lead to the assessment of a financial penalty. 

The details and specific regulations impacted are extensive.  ORTECH Consulting has participated in the MECP’s webinars regarding this proposal and is available to assist facilities in developing strategies which align with the intent of this regulation.  A table from the recent MECP webinar on Environmental Penalties is provide below as an example.