By Adela Laczynski,
April 25th, 2016 – Recently proposed Regulations under the Environmental Violations Administrative Monetary Penalties Act (“EVAMPA”) would add administrative monetary penalties to the toolkit for enforcing Canada’s flagship environmental law, the Canadian Environmental Protection Act, 1999 (“CEPA”). Maritime industry should be aware of potential new fines for environmental non-compliance, particularly regarding hazardous materials shipping, manifests, and disposal at sea.
The proposed Environmental Violations Administrative Monetary Penalties Regulations (the “proposed Regulations”) would create an administrative monetary penalty (“AMP”) regime for six environmental Acts, including CEPA, and some associated regulations. An AMP is a mid-range compliance tool, positioned between a written warning and prosecution. AMPs issue a fine to the offender but do not lead to prosecution. AMPs are similar to the tickets issued under theContraventions Act yet cover a broader scope of regulatory offenses.
An AMP regime has already existed in the maritime industry for several years, in the form of the Administrative Monetary Penalties and Notices (CSA 2001) Regulations under the Canada Shipping Act (“CSA”). The proposed AMP regime under EVAMPA would establish fines in the same monetary range as those under the CSA. However, the proposed Regulations would create a different method of calculating the amount of the AMP and hold owners and operators to a different liability standard.
Under the proposed Regulations, violations would be classified into three types: Type A (minor or administrative non-compliance); Type B (non-compliance that creates a risk of harm to the environment or an obstruction of authority); and Type C (non-compliance that harms the environment). A baseline penalty amount for each type could be added upon if any of the following aggravating factors apply: history of non-compliance, environmental harm, or economic gain.
An important difference between the AMP regime under the CSA and the proposed AMP regime under EVAMPA is the treatment of continuing violations. The CSA AMP regime allows an offender to be fined the maximum AMP amount per day a violation occurs in cases of only a select few violations. In contrast, an offender may potentially be fined the maximum AMP amount per day the violation occurs for any violation covered under the EVAMPA regime. The maximum AMP amount under both regimes is $25,000 in the case of a ship or vessel.
EVAMPA determines the liability of owners, operators, masters and chief engineers of ships and vessels at section 8 (2) and (3). Corporate directors or officers who own or operate a ship may be held liable for an AMP if they “directed or influenced the corporation’s policies or activities” leading to the violation. Similarly, “If a ship or vessel commits a violation and the owner, operator, master or chief engineer of the ship or vessel directed, authorized, assented to, acquiesced in or participated in the commission of the violation” the individual can be issued an AMP even if the ship is not issued one.
Under the proposed Regulations, a review of an AMP may be requested on behalf of a ship or vessel by the owner, operator or master, or an authorized representative of the owner or operator. Due diligence is not an permissible defence.
The proposed Regulations designate AMPs for provisions specifically of interest to the maritime industry, such as the disposal reporting requirement found at CEPA section 130(A) and the manifest requirements found in the Interprovincial Movement of Hazardous Waste Regulations. Also of particular interest to the shipping industry are the designated provisions of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and the Federal Halocarbon Regulations. Notably, the Disposal at Sea Regulations under CEPA are not covered by the proposed Regulations.
AMPs have become an increasingly popular form of environmental enforcement at both the federal and provincial level. Stakeholders in shipping have a unique industry perspective and may provide feedback on the proposed Regulations untilJune 8, 2016. Further information on the proposed Regulations, and the procedure for submitting comments, is available in the original Canada Gazette publication,here.