Administrative Compliance Mechanisms

AuthorJamie Benidickson
Pages147-166
147
CHAPTER 7
ADMINISTRATIVE
COMPLIANCE
MECHANISMS
A. COMPLIANCE AND ADMINISTRATIVE
ENFORCEMENT
Beyond the underlying framework of environmental standards that an
industrial, commercial, or other applicant may be expected to meet
after the required approvals and authorizations have been obtained lie
questions relating to compliance and eventually to the implications of
non-compliance; that is, what levels of compliance are being achieved
and what are the consequences of failing to satisfy (or even disregard-
ing) applicable environmental norms?
Alternative strategies for encouraging environmental performance
have been actively debated: some commentators advocate a concilia-
tory approach, while others have promoted a sanctions-based or penal
model of enforcement.1 The discussion has been inf‌luenced not only by
evidence of the potential effectiveness of these general alternatives in
environmental terms, 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
for administrative procedures, prosecutorial practices, and penalty
1 K Hawkins, Env ironment and Enforcement: Regulat ion and the Social Def‌inition of
Pollution (Oxford: Clare ndon Press, 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 AW148
regimes, and an appreciation of administrative enforcement costs in
periods of f‌iscal restraint are notable examples of such inf‌luences.2
The compliance mechanisms considered in this chapter include
a range of measures to monitor environmental performance, to issue
warnings and administrative orders, and even to impose penalties
through an administrative process. Other approaches to compliance
such as the prosecution of offences or the use of voluntary agreements
are discussed in Chapters 8 and 16 respectively.
B. REPORTING OBLIGATIONS
The terms and conditions applicable to operating licences and per-
mits will frequently impose regular reporting obligations that provide
off‌icials with information on an ongoing basis concerning the normal
operations of approved sites and facilities. Water treatment facilities
will be expected 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 addi-
tion, statutory reporting obligations are now common in connection
with spills and other irregular discharges of contaminants. The OEPA
requires every per son who discha rges, 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 ministry forthwith.3
Specif‌ic notif‌ication requirements apply in Ontario when a pollutant is
spilled, that is, discharged, into the natural environment from or out
of a structure, vehicle, or other container in a manner 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 provincial legislation,
especially relating to gasoline and other fuels, and in such federal stat-
utes as the Fisheries Act5 and CEPA 1999. Under the latter there is a
statutory requirement to report imposed on some individuals, while
the legislation perm its others to report both releases and likely relea ses
of toxic substances.6
2 Canada (Director of Investigatio n & 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]; Castonguay Bla sting
Ltd v Ontario (Environme nt), 2013 SCC 52.
4 OEPA, above note 3, s 92.
5 RSC 1985, c F-14, s 38(4).
6 Canadian Environmental Protect ion Act, 1999, SC 1999, c 33, ss 95–96 [CEPA 1999].

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