Environmental Penalty Program, Five Year Review

Prepared by:
Ontario Ministry of the Environment
Operations Division

Last Revision Date: December 2012

For more information:
Ministry of the Environment
Public Information Centre
Telephone: 416 325-4000
Toll free: 1 800 565-4923
Email: picemail.moe@ontario.ca
Ministry website

PIBS 9110e

Executive Summary

Environmental penalties are administrative monetary penalties that can be imposed by the ministry when certain industrial facilities spill or have unlawful discharges to water or land. Environmental penalties apply to approximately 140 facilities that belong to one of the nine industrial sectors found in the Municipal-Industrial Strategy for Abatement (MISA) regulations. The primary goal of environmental penalty orders, as an abatement tool, is to encourage quick and effective compliance.

An Environmental Penalty Program review is required once every five years in accordance with section 182.1(20) of the Environmental Protection Act (EPA) and section 106.1(20) of the Ontario Water Resources Act (OWRA). The purpose of this report is to assess the effect of environmental penalties on prosecutions and to make recommendations pertaining to what, where and how we apply environmental penalties going forward. This first review report provides an overview of the Environmental Penalty Program and its implementation from August 1, 2007 until December 31, 2011.

Environmental officers, in accordance with the Ministry’s "Compliance Policy: Applying Abatement and Enforcement Tools" (May 2007), initiate a response to an environmental incident using a risk-based approach and their professional judgment. This allows them to determine the most appropriate tool or mix of tools for obtaining quick action to mitigate the effects of a violation, achieve compliance with environmental laws, and improve environmental performance in both the short and long term.

Environmental penalties were introduced to serve as a complementary addition to the existing ministry compliance and enforcement toolkit that includes education, voluntary abatement plans, orders, the issuance, suspension or revocation of environmental compliance approvals, and prosecution.

Environmental penalties range from $100,000 per day for the most serious violations (e.g., a spill with a significant impact) to $1,000 per day for less serious violations (e.g., failure to submit a quarterly report).

Money collected from environmental penalty orders is held in the Ontario Community Environment Fund and is made available for environmental projects in the watersheds where the violations occurred. Between August 1, 2007 and December 31, 2011, the ministry issued 62 environmental penalty orders for 132 violations (39 acute toxicity violations, 63 limit exceedance violations, 23 monitoring and reporting violations and 7 spills or discharges), which resulted in a contribution of $779,482.45 to the fund.

In addition, since the implementation of environmental penalties, the ministry has conducted five prosecutions where both an environmental penalty and prosecution could have been pursued. These five prosecutions resulted in convictions totalling $265,000.00 in fines. The effect of the environmental penalty program and the work of the Investigations and Enforcement Branch of the ministry are complementary and there has been no impact on prosecutions.

Environmental penalties fill a niche in the compliance toolkit that provides a sufficient deterrent to unlawful discharges and allows the ministry to address non-compliance faster and more effectively than other compliance and enforcement tools.

The environmental penalty program has been found to be beneficial toward achieving compliance for land and water violations that may occur at the facilities that are part of the Municipal Industrial Strategy for Abatement (MISA) sectors.

While staff are applying environmental penalties in appropriate circumstances, there may be opportunities to use this tool more often and in a more consistent and effective manner by enhancing staff training and guidance to increase understanding about when and how to use environmental penalties.

It is also recommended to continue monitoring and reporting on the use of the environmental penalty tool to promote consistency and effective implementation.

Background

Purpose of the environmental penalty five year review

An Environmental Penalty Program review is required once every 5 years in accordance with subsection 182.1(20) of the Environmental Protection Act (EPA) and subsection 106.1(20) of the Ontario Water Resources Act (OWRA), which states:

At least once every five years, the Minister shall cause a report to be prepared and published on the operation of this section, including the effect of this section on prosecutions under this Act and including recommendations on the contraventions to which and circumstances in which orders should be issued under subsection (1).

This review, required every five years, focuses on the effect environmental penalties have on prosecutions and makes recommendations pertaining to what, where and how we apply environmental penalties. This is the first Environmental Penalty Five Year review report. It provides a general description of the applicable legislation and a compilation of data related to environmental penalties.

Environmental penalty program history

In 2003 and 2004, a cluster of spills in the Sarnia area from dischargers regulated under the Municipal Industrial Strategy for Abatement (MISA) regulations resulted in impacts to the St. Clair River and the community (e.g., drinking water plant intake closures). Action was taken to address these concerns including an inspection sweep of industries in the area to ensure that all provincial environmental legislative and regulatory requirements were being met, with a focus on spill prevention and contingency planning. As well, the Industrial Pollution Action Team was announced on February 24, 2004 to study and provide recommendations on how to prevent spills.

On July 30, 2004, the Industrial Pollution Action Team released a discussion document. The team concluded, in this 2004 report, that fines were not a sufficient deterrent against unlawful discharges. The report stated "offenders have not received sufficient (or in some cases any) penalties for spill events and may be considering spill related fines as a cost of doing business".

In June 2005, the Environmental Enforcement Statute Law Amendment Act (Bill 133) amended the Environmental Protection Act and the Ontario Water Resources Act strengthening many compliance and enforcement provisions, (e.g., increasing fines that may be imposed by the courts when a person is convicted of an offence). As well, the administrative monetary penalty provisions in the Environmental Protection Act and Ontario Water Resources Act were strengthened with the introduction of the environmental penalties framework. The framework enables the ministry to issue environmental penalty orders and direct money collected from environmental penalties into a special purpose account; the Ontario Community Environment Fund.

Environmental Penalties Regulations 222/07 (EPA) and 223/07 (OWRA) were filed with the Registrar of Regulations on June 6, 2007 providing the framework for assessing and issuing environmental penalties.

In addition, the Environmental Protection Act was amended to allow the ministry to require facilities to prepare spill prevention and contingency plans. Spill Prevention and Contingency Plans Regulation 224/07 (EPA) applies to all facilities that are regulated under Environmental Penalties Regulations 222/07 (EPA) and 223/07 (OWRA).The first environmental penalty in Ontario was issued on February 29, 2008.

Annual reports are posted on the ministry’s website which outline details of every environmental penalty issued in the previous calendar year.

Environmental penalty program overview

Environmental penalties are administrative monetary penalties that can be imposed by the ministry when certain specified industrial facilities spill or have unlawful discharges to water or land. They are the first administrative monetary penalties used for environmental compliance in Ontario. Environmental penalties were introduced to serve as a complementary addition to the existing compliance/enforcement toolkit that includes education, voluntary abatement plans, orders, the issuance, suspension or revocation of environmental compliance approvals and prosecution. The primary goal of environmental penalty orders, as an abatement tool, is to encourage quick and effective compliance.

The ministry may also prosecute facilities that are subject to environmental penalties for alleged violations of environmental laws if the nature of the incident warrants. Prosecution actions may take place at the same time that the environmental penalty process is underway.

Several advantages that environmental penalties provide include the following:

• Environmental penalty orders can be issued quickly compared to the time required to undertake a prosecution. This will encourage facilities to take swift action to abate the effects of the contravention and prevent its recurrence. A prosecution takes a significant amount of time and resources, which detracts from its use and effectiveness as a deterrent for spills and other violations.
• Environmental penalty orders are issued with the opportunity for the regulated party to seek reductions in order to reward good performance (before, during and immediately after an incident). This flexibility encourages regulated parties to strive towards improved environmental performance.
• Environmental penalties, which are not judicial in nature, do not have the same stigma associated with a prosecution or conviction.

As set out in the purpose provisions of Environmental Penalties Regulations 222/07 and 223/07, environmental penalty orders are to be used in a manner that will encourage companies to prevent incidents from happening that harm or have the potential to harm the environment or human health.

The regulations specify facilities and industrial sectors that are subject to an environmental penalty. Environmental penalties apply to facilities that discharge effluent directly to the land and surface waters of Ontario and belong to one of the 9 industrial sectors found in the MISA regulations. These sectors include petroleum, iron and steel, industrial minerals, inorganic chemicals, organic chemicals, pulp and paper, metal mining, metal casting and electric power generation facilities.

As illustrated in Table 1, there are approximately 140 companies subject to environmental penalties in Ontario. The MISA sectors with the greatest number of regulated facilities include metal mining, organic chemicals and inorganic chemicals. While the number of regulated facilities has remained consistent since the implementation of environmental penalties, the number of facilities within each of the MISA sectors has varied. Some facilities, such as those in the organic chemicals sector, have ceased operations. Other facilities, such as in the electric power generation sector, have met the industrial sector criteria in the environmental penalties regulations and are now subject to environmental penalties.

Environmental penalties were implemented in two phases. Phase 1 came into effect August 1, 2007 and focused on unlawful discharges or spills from industrial facilities to land and water. Phase 2 was implemented on December 1, 2008, and it broadened the scope of the program to include all other non-discharge violations (e.g., administrative violations such as MISA monitoring requirements).

Environmental penalties are comprised of a gravity component for the seriousness of the violation and a monetary benefit component for avoided or delayed costs. The gravity component ranges from $100,000 per day for the most serious violations (e.g., spill with a significant impact) to $10,000 per day for serious violations (e.g., sample fails acute toxicity test) to $1,000 per day for less serious violations (e.g., failure to submit a required quarterly report).

Compliance and enforcement considerations in the issuance of Environmental Penalties

Each spill or non-compliance incident is evaluated by ministry staff on a case-by-case basis to determine an appropriate response. Currently, possible compliance and/or enforcement responses to an incident potentially subject to an environmental penalty may include one or more of the following:

• education and outreach,
• violation notice,
• voluntary abatement plans,
• issuance/suspension/revocation of an environmental compliance approval or permit,
• issuance of a provincial officer’s/director’s order,
• issuance of an environmental penalty order, or
• undertaking an investigation and prosecuting alleged offences.

All of the ministry’s actions, voluntary abatement plans, prosecution, and so forth are designed to mitigate the effects of a contravention and to deter regulated parties from violating environmental legislation in the future.

Both during and after a given incident, the ministry will seek to ensure responsible parties address the impacts of a contravention and to prevent its recurrence. The ministry’s "Compliance Policy: Applying Abatement and Enforcement Tools" (May 2007) guides staff in selecting compliance and enforcement tools. Staff initiate a response to an environmental incident using a risk-based approach and applying their professional judgement. The goal is to determine the most appropriate tool or mix of tools for obtaining quick action to mitigate the effects of a violation, achieve compliance with environmental laws, and improve environmental performance in both the short and long term.

Some factors that may be considered when determining the appropriate response to a violation include, among others:

• health or environmental consequence of the incident (i.e., quantity of spilled material, duration, toxicity of material, human health/environmental impacts, etc.),
• compliance history
• careless and/or deliberate actions by the responsible party, and
• how the public interest is best served.

Other considerations that may factor into decision-making include bankruptcy or insolvency proceedings and situations where two violations arise from the same set of facts. In the latter case an environmental penalty is issued for only one of the violations. For example, if a regulated party exceeds a limit violation on a daily sample and this sample on its own causes an exceedance of the applicable monthly limit, only one of the exceedances is normally included in an environmental penalty order.

Environmental penalty process

The process for issuing an environmental penalty and the rules for calculating a penalty are set out in the regulations and the "Guideline for Implementing Environmental Penalties (Ontario Regulations 222/07 and 223/07)".

As shown in Figure 1, the ministry will issue a notice of intention to issue an environmental penalty order, if the director concludes a penalty is warranted. This notice identifies the contravention and the estimated range of the penalty based on the type of violation that occurred and the potential consequences of the violation. This is known as the gravity component of the penalty.

A regulated party that has received a notice of intention may submit a written request within 15 days of the date of the notice that the ministry review information about the incident. The regulated person may seek up to a 35% reduction to environmental penalties for actions taken by the regulated person to prevent or mitigate the violation, and for having an environmental management system in place. The regulated person may also request to have an extension to the 15 days to submit information to the ministry or to meet with ministry staff to further discuss its written submissions before the environmental penalty order is issued.

The process also allows the regulated person an opportunity to reduce the gravity component of the penalty by entering into a settlement agreement. These agreements require the regulated person to take steps beyond those required by law to complete a pollution prevention or reduction project including facility-based pollution prevention or pollution reduction projects that aim to yield human health or environmental benefits beyond those required by environmental laws. However, a premium is applied to receive this reduction. Facilities would be eligible for reductions of up to 75% of the gravity penalty amount for discharge related violations and up to 100% for non-discharge violations.

Figure 1: Environmental penalty process

If there is no request for review from the regulated person before the deadline, the director may issue the order at the end of the 15-day review period, as reflected in the notice of intention.

The ministry has one year from the later, of the date on which violation occurred, or the date on which evidence of the violation first came to the attention of the ministry to issue an environmental penalty order. A regulated person that has been issued an order has the right to appeal it to the Environmental Review Tribunal within 15 days of the order, unless it has agreed not to appeal as part of a settlement agreement. When an appeal is made to the tribunal, the order is stayed pending its decision.

The order states the deadline for payment of the penalty amount. All funds collected from environmental penalty orders are deposited into the Ontario Community Environment Fund. This money is used to fund projects for environmental remediation, research and education relating to spills and restoration of the environment; as well as projects related to spill preparedness in the watersheds where the violation(s) occurred (affected community). The amount of money available for each affected community in a given year is the amount collected through environmental penalties in the previous calendar year in addition to any unallocated amounts from the previous year.

Environmental penalty program assessment

Environmental penalty program (2007-2011)

Between August 1, 2007 and December 31, 2011, the ministry issued 62 penalty orders for 132 violations. The total penalty value associated with these penalties is $779,482.45 (Table 2). A total of 17 violations identified in a notice of intention to issue an environmental penalty did not result in the issuance of an environment penalty order between 2007 and 2011. During this time period, no companies have entered into an agreement to conduct a beyond compliance pollution reduction or prevention project. In addition, no penalties were issued with a monetary benefit component.

Environmental penalty orders issued by violation type (2007-2011)

The types of contraventions to which environmental penalties are currently applied include limit exceedances, acute toxicity violations, monitoring and reporting violations and spills. The total numbers for each type of violation referenced in the following section relates to regulated persons in one of the nine MISA sectors.

As shown in Figure 2, limit exceedances represent almost half (48%) of the violations that received an environmental penalty order, followed by acute toxicity violations (30%). Monitoring and reporting violations accounted for 17% of the total, and spills or discharges represented 5% of the violations.

Figure 2: Environmental penalty order by violation type, percentage of total number of violations (132)

Limit exceedance

A limit exceedance refers to the maximum, or in some cases minimum, discharge/emission level as identified in an environmental approval, order, regulation or other instrument. Some limit exceedances pertain to a contaminant, such as nickel, which may result from an exceedance of a daily or monthly limit. Exceedances of limits pertaining to operating parameters, such as temperature or pH may result from continuous monitoring with any excursion above the limit being considered a reportable exceedance. These operating parameters, while important on their own, also serve as an indicator to identify issues with effluent quality.

Approximately 776 limit violations pertaining to a variety of contaminants were reported during the period from August 1, 2007 to December 31, 2011 (Figure 3). The number of exceedances has declined between 2008 and 2011 (Figure 3). The reported exceedances, consisting of either an isolated single event or a number of exceedances related to a specific event (e.g., same day) or one cause (over several sampling events) were addressed either through an environmental penalty order (13%), provincial officer’s order (12%), or voluntary abatement (75%). Referrals to the Investigation and Enforcement Branch were made for approximately 2% of the incidents.

Figure 3: Limit exceedance (contaminants) reported by regulated persons (*since August 1, 2007)

There were also approximately 186 exceedances of limits that pertained to operating parameters, such as temperature, pH and dissolved oxygen. These incidents were generally short term in nature and were effectively and efficiently addressed through voluntary abatement.

A total of 63 limit exceedance violations have been addressed using environmental penalty orders, with a penalty value of $174,622.45 (Figure 4)

Figure 4: Environmental penalty order by violation type, percentage of total penalty value ($779,482.45)

Acute toxicity

Acute Toxicity refers to an effluent monitoring sample that fails an acute lethality test for rainbow trout or Daphnia magna (water flea).

Figure 5: Acute toxicity violations (*since August 1, 2007)

Approximately 159 acute toxicity violations were reported during the period from August 1, 2007 to December 31, 2011 (Figure 5). The number of these violations was highest in 2009 (48) and lowest in 2011 (20).

These acute toxicity violations, which may relate to a single event (e.g., same day) or one cause (over several sampling events), were addressed by environmental penalty orders (37%), provincial officer’s orders (4%) and voluntary abatement (59%). Approximately, 13% of incidents were referred to the Investigations and Enforcement Branch of the ministry. A total of 39 environmental penalty orders for acute toxicity violations have been issued, with a penalty value of $412,500.00 (Figure 4). The environmental penalty tool is proving particularly effective in addressing these types of violations and is further encouraging a quick return to compliance and a reduction in future incidents.

Monitoring and reporting violations

Monitoring and reporting violations include failure to report a spill as required by legislation or failure to take a sample, as required by a regulation or an environmental compliance approval. These types of violations are important because they interfere with the ministry’s ability to regulate discharges to the environment. Some of these violation types (e.g., failing to report a spill or limit exceedance) were included in the phase 1 implementation of environmental penalties. Other violation types not directly related to discharges, such as sampling, monitoring or record-keeping, were not subject to environmental penalties until phase 2 (December 1, 2008).

There have been 23 monitoring and reporting violations (Figure 2) in 11 environmental penalty orders since 2007. Thirty-five percent (35%) of the violations related to reporting while the remainder of the violations pertained to monitoring. The value of monitoring and reporting violations ranged from a minimum of $1,750.00 for failing to report a limit exceedance to $13,000.00 for failing to report a discharge that may impair water. The overall total of monitoring and reporting violations equalled $68,625.00 (Figure 4).

These types of violations are most often effectively addressed through voluntary abatement. However, the ministry has identified that where environmental penalties were applied it resulted in improved procedures to ensure monitoring and reporting occurs, and in preventing recurrences of delay or failure to report unlawful discharges.

Spills and discharges

Most spills involve an accidental, abnormal or inadvertent release of a pollutant discharged into the natural environment from or out of a structure, vehicle or other container. A spill or discharge is subject to an environmental penalty order if the discharge is determined to be a violation.

Figure 6: Number of spills by regulated facilities *since August 1, 2007

There were approximately 774 spills reported by the MISA regulated community during the period from August 1, 2007 to December 31, 2011. The majority of the spills were liquid spills; slightly more than 50% of all spills were initially to land and the remainder entered a watercourse. The largest number of spills was reported between 2007 and 2008 with fewer spills reported between 2009 and 2011 (Figure 6).

Approximately 76% of the spills were assessed to have no or minimal anticipated impacts. A substantial number of these reported spills (estimated at 50%) can be described as small quantity spills/leaks confined to the company property that are cleaned up quickly, do not require ministry field response, and do not impact the natural environment. A voluntary abatement approach is often the appropriate approach for these types of spills.

Approximately 22% of spills involve an incident where the ministry cannot confirm potential or actual impacts/impairment (e.g., unable to sample, sampling results are not conclusive, or no observable impacts, such as fish kill or significant oil sheen). These are usually addressed through voluntary abatement. One of the considerations when determining whether or not to issue an environmental penalty is the determination of whether or not the spill had or has the potential to cause an adverse effect or impairment of water.

Approximately 2% of spills, where impacts/impairment are identifiable or potential impacts/impairment can be determined through availability of sampling results and/or technical expertise, may be considered for an environmental penalty order.

Since the implementation of the environmental penalty program, seven environmental penalty orders (Figure 2) totalling $123,735.00 (Figure 4) have been issued for spills or discharges where a violation has been identified (may impair the quality of waters). Two of the spills involved a toxic substance which increased the gravity component of the environmental penalty order by 35%. In addition, one spill resulted in an environmental penalty order for failure to report a spill.

Environmental penalties orders issued by sector (2007-2011)

All sectors with the exception of metal casting (only one facility in this sector) received environmental penalty orders between 2007 and 2011 (Table 3). Metal mining received 30% of the environment penalty orders issued, followed by electric power generation (23%), iron and steel (15%), pulp and paper (13%), petroleum (9%), organic chemical (6%), industrial minerals (3%), and inorganic chemical (1%). As illustrated in Table 3, issuance of environmental penalty orders varies between sectors. For example, facilities with acute toxicity and limit exceedance violations were issued environmental penalty orders most frequently in the metal mining and iron and steel sectors, while the electric power generation sector received the most environmental penalty orders for monitoring and reporting violations.

While a number of factors account for the variance of environmental penalty issuance from one sector to another (voluntary versus mandatory abatement, economics, operational practices, severity of infractions, etc.), environmental penalty orders have been used as an effective compliance tool across the MISA sectors.

Environmental penalty dollar amounts and reductions

When environmental penalty orders are issued, regulated persons have the option to seek reductions (up to 35%) in order to reward good performance (before, during and immediately after an incident). This flexibility encourages facilities to strive towards improved environmental performance.

Between 2007 and 2011, environmental penalty order dollar amounts, including reductions, ranged from $650.00 (one limit exceedance violation) to $62,070.00 (four acute toxicity violations and one limit exceedance violation).

Overall, the smallest environmental penalty dollar amount, including reductions, issued for a single violation was $650.00 (limit exceedance violation), and the largest for a single violation was for $36,135.00 for a spill/discharge.

Between 2007 and 2011, environmental penalty order reductions ranged from $0 to $13,365 per violation with an average reduction of $1,033.00. Reductions were requested for 86% of the violations and total reductions equalled $136,298.00.

Environmental penalty order appeals

Between 2007 and 2011, three environmental penalty orders were appealed to the Environmental Review Tribunal. All of the appeals were settled without a hearing.

Environmental penalties and prosecutions

Prosecutions related to environmental violations are initiated by the ministry’s Investigations and Enforcement Branch which conducts investigations of alleged violations to determine if there is sufficient evidence for the laying of charges. Referrals of incidents for investigation are primarily generated by abatement staff. Referrals for investigation, where there is also the option of issuing an environmental penalty order, have not declined since the introduction of environmental penalties with the most occurring in the pulp and paper, metal mining, electric power generation, and iron and steel sectors (Table 5).

Similarly, metal mining, electric power generation and iron and steel sectors have received the most environmental penalties for acute toxicity violations (Table 3). The ratio of referrals for violations subject to environmental penalties relative to the total number of referrals for all violations has remained constant, ranging from 1% to 4% since the introduction of environmental penalties.

The number of prosecutions for violations that could also have been considered for an environmental penalty order has remained essentially the same since 2007. Since the implementation of environmental penalties, the ministry has conducted five prosecutions where both an environmental penalty and prosecution could have been pursued. These five prosecutions resulted in convictions and fines totalling $265,000 in fines.

There are no cases during the last five years where a regulated person was prosecuted for the same violation for which an environmental penalty order was issued. There are eight other cases where Investigations and Enforcement Branch investigated violations for which an environmental penalty order was issued but no further enforcement action was taken. However, in one instance the regulated party paid a $7,800 environmental penalty order for an acute toxicity violation where the corresponding prosecution resulted in the withdrawal of the acute toxicity charge and the court imposing a fine of $15,000 plus a victim fine surcharge for monitoring and reporting violations.

Ontario community environment fund (2009-2011)

Money collected from environmental penalties is made available for environmental projects in the watersheds where the violations occurred through the Ontario Community Environment Fund. From 2009 until 2011, 23 projects have received money from the fund. Money has been granted to aboriginal communities, conservation authorities, municipalities, and incorporated non-profit organizations across 20 different watersheds. A list of funded projects for 2009 and 2010 is available on the Ontario Community Environment Fund website.

Conclusions and actions

The purpose of this report is to review the environmental penalties program to assess the effect of environmental penalties on prosecutions and to make recommendations pertaining to what, where and how we apply environmental penalties going forward.

Pursuant to subsection 182.1(20) of the Environmental Protection Act and subsection 106.1(20) of the Ontario Water Resources Act.

At least once every five years, the Minister shall cause a report to be prepared and published on the operation of this section, including the effect of this section on prosecutions under this Act and including recommendations on the contraventions to which and circumstances in which orders should be issued under subsection (1).

1. Application of environmental penalty orders

Environmental penalties fill a niche in the compliance toolkit that provides a sufficient deterrent to unlawful discharges and allows the ministry to address non-compliance faster and more effectively than other compliance and enforcement tools.

The environmental penalty program has been found to be beneficial toward achieving compliance for land and water violations that may occur at the approximately 140 facilities that are part of the Municipal Industrial Strategy for Abatement (MISA) sectors.

Preventive and mitigative reductions were requested for 86% of the violations. Abatement staff feedback indicates that regulated party application of mitigative and preventative measures has been enhanced when an environmental penalty order has been issued. As a result, environmental penalties are providing an incentive to industry to strengthen the pollution prevention measures in place.

As with any new program, there may be variability in its implementation. This is partially the result of the environmental officers need to exercise discretion and utilize their professional judgement on a case by case basis when considering a recommendation to issue an environmental penalty.

While staff are applying environmental penalties in appropriate circumstances, there may be opportunities to use this tool more often and in a more consistent and effective manner by enhancing staff training and guidance to increase understanding about when and how to use environmental penalties.

It is also recommended to continue monitoring and reporting on the use of the environmental penalty tool to promote consistency and effective implementation.

2. Effect of environmental penalties on prosecutions

There have been no instances where an environmental penalty order was issued with a prosecution for the same violation resulting in a conviction. During this time, referrals to the ministry’s Investigations and Enforcement Branch for violations where there is an option of issuing an environmental penalty order have remained constant. The ministry has conducted five prosecutions where the ministry could have proceeded with both an environmental penalty and prosecution.

The effect of the environmental penalty program and the work of the Investigations and Enforcement Branch of the ministry are complementary and there has been no impact on prosecutions.