The Ontario government recently proposed amendments to regulations dealing with Administrative Monetary Penalties (AMPs) under the Ontario Environmental Protection Act. The reason given for the proposed amendments was that they would remove regulatory overlap and result in regulations that are focused and streamlined.
An AMP is a financial penalty for non-compliance that provides an incentive to the violator to return to compliance and deter future non-compliance. Administrative penalties are used across the Government of Ontario in regulated program areas such as forestry, consumer protection, energy, and waste diversion.
Deficiency in the Existing AMPs
AMPs are regularly used in other jurisdictions, particularly Canada and the United States, to support the enforcement of environmental laws (e.g. British Columbia, Alberta, Canada, Quebec, Ohio, Vermont and Minnesota).
AMPs, as a compliance and enforcement tool (i.e. environmental penalties), are currently available to the Ontario Environment Ministry for some land, water and air violations, but are limited in scope. This gap leaves many program areas with limited enforcement tools and affects the ministry’s ability to effectively hold polluters accountable. In addition, some of the acts proposed to be amended that are enforced by the Ontario Environment Ministry do not have the enabling authority to issue administrative monetary penalties (e.g. Safe Drinking Water Act, Pesticides Act), while others are out of step with best practice (e.g. Nutrient Management Act, 2002).
The are proposed legislative amendments expand and/or clarify enabling authority to issue administrative monetary penalties for environmental violations under key environmental statutes, including:
- Nutrient Management Act, 2002
- Ontario Water Resources Act
- Pesticides Act
- Safe Drinking Water Act, 2002
The proposed amendments would enable administrative monetary penalties to be issued for a broad range of environmental violations under the acts mentioned above. To take effect, violations that may be subject to an administrative monetary penalty would be prescribed in regulation.
The proposal, along with recent amendments to the Environmental Protection Act, would replace existing monetary penalties (i.e. environmental penalties) under the Environmental Protection Act and Ontario Water Resources Act.
Key provisions under the proposed administrative monetary penalty approach are set out under each act and include:
- set maximum penalty amounts or higher if the economic benefit achieved via the violation was higher (penalty amounts would be set by a regulation). The maximum penalty amounts set in the acts are as follows:
- Ontario Water Resources Act – $200,000 per contravention (same as the Environmental Protection Act)
- Pesticides Act – $100,000 per contravention
- Safe Drinking Water Act, 2002 – $100,000 per contravention
- Nutrient Management Act, 2002 – $10,000 per contravention
- ability to review and/or appeal the administrative penalty
- an annual report listing the administrative penalties issued in the last calendar year
- provisions to enable the implementation of administrative monetary penalties in regulation (e.g. how to set administrative monetary penalty amounts, who they can apply to, and how violators can seek reductions in penalty amounts for taking action to prevent or mitigate the contravention
The government argues that the broader use of AMPs would help it take strong action against illegal activity, ensure that polluters are accountable for their actions, and deal with environmental violations that do occur, more efficiently and appropriately. Prosecution would continue to be used as an enforcement tool but may be limited to serious violations.
If passed, these proposed legislative amendments would allow for future regulations to implement administrative monetary penalties to more violations, such as, but not limited to:
- illegal sewage discharges into waterways
- selling pesticides without a license
- failing to have a certified drinking water operator
- violating terms of a permit to take water
Criticism of the Proposal
Environmental activists decried the proposal and charged that it will result in lightened consequences for polluters. Keith Brooks, spokesperson for Environmental Defence, stated in press release, “It is highly deceptive of the Ontario government to claim that it is doing more to hold polluters accountable, when they are actually cutting the penalties polluters face.”
The environment critic from the Ontario New Democratic Party, Ian Arthur, an MPP for Kingston and the Islands, stated: “The Ford government has proposed eliminating an existing $100,000-per-day penalty for environmental polluters and replacing it with a one-off fine of $10,000. Further, the government is pushing to cap environmental fines at an overall maximum of $200,000.”