Administrative Compliance Mechanisms

• Author: Jamie Benidickson
• Pages: 141-160

141

CHA PTER 7

ADMINISTR ATIVE

COMPLI A NCE

MECH ANISMS

A. COMPLIA NCE AND ADMINISTR ATIV E

ENFORCEMENT

Beyond the underlying framework of environmental st andards that an

industrial, commerci al, or other applicant may be expected to meet

after the required approvals and authori zations have been obtained,

lie questions relating to compliance and eventually to the implica-

tions of non-compliance; that is, what levels of compliance are being

achieved and what are the consequences of fai ling to satisfy (or even

disrega rding) applic able environmental norms?

Alternative strategies for encouraging environmental performa nce

have been actively debated: some commentators advocate a concilia-

tory approach, while others have promoted a sanctions-ba sed or penal

model of enforcement.1 The discussion has been inf‌luenced not only by

evidence of the potential effectivenes s of these general alternatives in

environmental term s, but also by external developments affecting the

context in which enforcement efforts are underta ken. The introduction

of the Charter of Rights and Freedoms with its evolving implications

1 K Hawkins, Env ironment and Enforcement: Regulat ion and the Social Def‌inition of

Pollution (Oxford: Clarendon P ress, 1984) is a classic reference work on t he gen-

eral debate. Can adian developments are sur veyed in D Chappell, From Sawdust

to Toxic Blobs: A Consideration of Sa nctioning Strategies to Combat Pollution in

Canada (Ottawa: Supply & Services, 1989).

ENVIRONMENTAL L AW

142

for administrative procedures, prosecutorial practices, and penalty re-

gimes, and an appreciation of administrative enforcement costs in per-

iods of f‌iscal restraint are notable examples of such inf‌luences.2

The compliance mechanisms considered in this chapter include

a range of measures to monitor environmenta l performance, to issue

warnings and administrative orders, and even to impose penalties

through an admini strative process. Other approaches to compliance

such as the prosecution of offences or the use of voluntary ag reements

are discussed in Chapters 8 and 16 respectively.

B. REP ORTI NG OBLIG ATIONS

The terms and conditions applicable to operating licences a nd permits

will frequently impose regular reporting obligations t hat provide of-

f‌icials with in formation on an ongoing basis concerning the norm al

operations of approved sites and facilities. Water treatment facilities

will be exp ected to conduct regular testing and report results. The

operators of waste disposal sites may be required to report the nature

and volume of materials collected by or delivered to them. In addition,

statutory reporting obligations are now common in connection with

spills and other irregular discharges of contaminants. The OE PA re-

quires every person who discharges or causes or per mits the discharge

of a contaminant “out of the normal course of events” that causes or

is likely to cause an adverse effect to notify the minist ry forthwith.3

Specif‌ic notif‌ication requirements apply in Ont ario when a pollutant is

spilled, that is, di scharged, into the natural env ironment from or out

of a structure, vehicle, or other container in a man ner that is abnormal

in quality or quantit y in light of all the circumstances of the di scharge.4

Reporting obligations may be found in other provi ncial legislation, es-

pecially relati ng to gasoline and other fuels, and in such federal statutes

as the Fisheries Act5 and CEPA 1999. Under the latter there is a statutory

requirement to report imposed on some individuals, while the legisla-

tion permits others to report both releases and likely relea ses of toxic

substances.6

2 Canada (Director of Investigati on & Research, Combines Investigation Branch) v

Southam Inc, [1984] 2 SCR 145; R v Wholesale Travel Group Inc, [1991] 3 SCR 154.

3 Environmental Protection Act, RSO 1990, c E.19, s 15 [OEPA].

4 Ibid, s 92.

5 RSC 1985, c F-14, s 38(4) [FA].

6 Canadian Environmental P rotection Act, 1999, S.C. 1999, c 33, ss 95–96 [CEPA 1999].