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The Ministry of the Environment (MOE) has announced substantial new regulations and related guidance documents, as they continue to build towards the October 10 election.

The long-awaited Environmental Penalties Regulations will, as expected, come into force August 1, 2007. These are the first administrative monetary penalties to be used for environmental enforcement in Ontario, and were authorized by the controversial Bill 133 in 2005. For now, they will apply to the 148 major industrial facilities that together cause about one third of reported industrial spills. In August, EPs will start applying to actual discharges; they will extend to paperwork violations in December 2008.

The MOE predicts that average penalties will be $1000 for paper violations, and $10,000 to $20,000 for spills. However, they could be much greater: the maximum for non-reporting is $100,000; there is no maximum for spills. If a toxic substance is involved, the gravity portion of the penalty will be increased 35%. A 5% reduction is available for those with a qualifying EMS, such as ISO 14001 with external certification.

The MOE did make some changes to the draft regulations in response to the storm of public comments, including the comments of the Ontario Bar Association. (As the OBA Environmental Section government relations person, I was heavily involved in these.) For example, we asked for: phasing in of the regulations (done); caps on penalties for minor offences (done, though with huge caps); automatic recognition of certified EMS (done); and opportunities to reduce penalties to zero by offsetting investments in environmental improvements (done for paperwork offences, with a 5:1 ratio for the last 25%).

MOE has also given industry until September 1, 2008 to adopt Spill Prevention and Contingency Plans.

If Environmental Penalties work well for these 148 plants, watch for them to spread to the rest of the economy. At relatively little cost to the MOE, compared to prosecution, these penalties may bring in large sums for politically popular redistribution for community remediation and restoration projects. Hopefully, they will also encourage industry to do more to stay in compliance, by making non-compliance more expensive.

Meanwhile, other regulations change Spill Reporting requirements for everyone, not just the 148 heavy industries, and make it easier for the MOE to serve documents under the six major environmental statutes:

•    Environmental Protection Act,
•    Ontario Water Resources Act,
•    Pesticides Act,
•    Safe Drinking Water Act,
•    Nutrient Management Act and
•    Clean Water Act.

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