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On Thursday, an Ontario company received an absolute discharge for unwittingly breaching Section 36 of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations, under the Canadian Environmental Protection Act 1999.
This section requires those exporting hazardous waste from Canada to submit confirmation of destruction, within 30 days after the foreign receiver disposes of the waste.  No specific format is prescribed. Like many others, the company believed that Environment Canada was content to accept Copy 3 of the completed manifest as adequate proof of destruction, especially where the receiver promptly disposed of the waste.
For reasons best known to Environment Canada, they did not communicate their dissatisfaction with this interpretation to the waste industry. Environment Canada could, and should, have written to each of the (highly regulated) professional waste brokers, requesting separate confirmations of destruction. At a minimum, they could have clearly communicated this through industry associations or newsletters.
Instead, they acted like bullies. The company’s first indication of any problem was the arrival of 17 officers in flack jackets with a search warrant. Investigators ransacked their offices (twice), seized hundreds of documents, copied computer disks, terrified employees, left files in a shambles, laid three different sets of charges, and caused years of upheaval. And what the matter ultimately came down to was legitimate confusion about the interpretation of s.36. After all the drama, and much wasted expense (public and private), the company made a $5,000 donation to a local charity, conducted a training course, and received an absolute discharge with no fine.
This is another sad example of cruel and inappropriate enforcement by Environment Canada. As in Gemtec, a small, hardworking company had an honest and reasonable understanding of a complex law. It turned out that Environment Canada disagreed with its interpretation. But instead of giving an explanation, or a warning, Environment Canada responded with a sledgehammer. This is like beating a child for breaking an unspoken rule; it’s unfair, it’s counterproductive, and it’s bad public policy.
No question, we need environmental enforcement. But we need it to be fair, and proportional to the real fault involved. Environment Canada urgently needs to re-examine its approach to compliance and enforcement. Fundamentally, serious punishment should be reserved for those who had some reason to know that what they were doing was wrong. In areas of disputed interpretation of the law, Environment Canada should explain what it means and give people an opportunity to comply, before it throws the book at them.

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