Environmental Protection Act Loi sur la protection de l’environnement ontario regulation 222/07 environmental penalties




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Environmental Protection Act
Loi sur la protection de l’environnement


ONTARIO REGULATION 222/07

environmental penalties

Historical version for the period August 1, 2007 to June 13, 2011.

No amendments.



This Regulation is made in English only.

Skip Table of Contents

CONTENTS

1.

Purpose

2.

Interpretation

3.

Regulated person

4.

Contraventions

5.

Notice of intention to issue penalty

6.

Request for review of penalty

7.

Amount of environmental penalty

8.

Monetary benefit

9.

Gravity component

10.

Seriousness of contravention, contravention of s. 14 of the Act

11.

Seriousness of contravention, contravention of s. 93 of the Act

12.

Seriousness of contravention, contravention of discharge limit

13.

Seriousness of contravention, failure of acute lethality test

14.

Seriousness of contravention, contravention of settlement agreement

15.

Seriousness of contravention, other contravention

16.

Reductions for prevention or mitigation

17.

Reduction for environmental management system

18.

Reduction for agreement with the Director

19.

Special purpose account

Table 1

Plants

Table 2

Contraventions

Table 3

Regulations relating to specific industrial sectors

Table 4

Gravity component

Purpose

1.  The purpose of this Regulation is to provide for the assessment of environmental penalties in a manner that encourages regulated persons to,

(a) take steps to prevent contraventions;

(b) take steps to mitigate the effects of contraventions and to prevent their recurrence;

(c) implement environmental management systems; and

(d) enter into agreements under subsection 182.1 (9) of the Act to take steps for the protection of the natural environment beyond the measures required by an Act of Ontario or Canada, by a regulation or instrument under an Act of Ontario or Canada, or by a public body. O. Reg. 222/07, s. 1.



Interpretation

2.  In this Regulation,

“contravention” means a contravention or failure in respect of which a person may be required to pay an environmental penalty under section 182.1 of the Act;

“Director” means a Director appointed in respect of section 182.1 of the Act;

“plant” means an industrial facility and the real property, waste disposal sites and wastewater treatment facilities associated with it;

“public body” means a municipality, local board, conservation authority, ministry, department, board, commission, or agency or official of a provincial or federal government;

“toxic substance” means a substance listed in Table 1 of the Ministry of the Environment publication entitled “Environmental Penalties – Code of Toxic Substances”, as amended from time to time. O. Reg. 222/07, s. 2.

Regulated person

3.  (1)  For the purposes of clause (a) of the definition of “regulated person” in subsection 1 (1) of the Act, a prescribed class of persons is persons who own or operate a plant that,

(a) is listed in Table 1;

(b) is described in section 3 of Ontario Regulation 560/94 (Effluent Monitoring and Effluent Limits – Metal Mining Sector), made under the Act, as a plant to which that regulation applies;

(c) discharges sewage, other than storm water, to a surface watercourse or to a sewage works that is privately owned, and,

(i) processes chemicals into organic chemicals, plastics, or synthetic fibres (organic chemical manufacturing sector),

(ii) processes, manufactures, packages or blends inorganic chemicals (inorganic chemical sector),

(iii) mines, excavates, extracts or processes as a product graphite, gypsum, silica (quartzite), salt, talc, nepheline syenite or trap rock (industrial minerals sector),

(iv) mines, excavates, extracts or processes limestone, dolomite, or sandstone on real property, and manufactures products on the real property using the limestone, dolomite, or sandstone (industrial minerals sector),

(v) produces portland clinker, cement, lime or magnesium (industrial minerals sector),

(vi) produces electricity through fossil-fuelled thermal generation, nuclear-powered thermal generation, and plants associated with nuclear plants including heavy water plants and nuclear complex services (electric power generation sector),

(vii) produces newsprint, fine papers, coated papers, paperboard, kraft pulp, linerboard, corrugating medium, kraft paper, tissue, groundwood paper, boxboard, or container board (pulp and paper sector),

(viii) refines crude oil to produce petroleum products (petroleum sector),

(ix) manufactures metallic objects by cooling molten metal in a mould or die (metal casting sector), or

(x) uses iron ore or recycled material to produce steel (iron and steel manufacturing sector); or

(d) is a plant described in clause (c) that has temporarily suspended the operations or the discharge referred to in that clause. O. Reg. 222/07, s. 3 (1).

(2)  A plant does not manufacture a product using limestone, dolomite or sandstone for the purpose of subclause (1) (c) (iv) if it engages only in aggregate crushing and screening of those minerals. O. Reg. 222/07, s. 3 (2).

(3)  Despite subsection (1), a person who owns or operates a plant described in subsection (1) is not a regulated person during any periods where any of the following circumstances apply to the plant and the person notifies the Director of it in writing:

1. The plant’s sewage works for sewage other than storm water are exempt under clause 53 (6) (a) or (b) of the Ontario Water Resources Act from the requirement to have an approval under subsection 53 (1) of that Act.

2. If the plant is listed in Table 1, the person permanently ceases all operations and activities described in clause (1) (c). O. Reg. 222/07, s. 3 (3).

(4)  In this section,

“sewage” has the same meaning as in subsection 1 (1) of the Ontario Water Resources Act;

“sewage works” has the same meaning as in subsection 1 (1) of the Ontario Water Resources Act;

“surface watercourse” means any lake, river, pond, stream, reservoir, swamp, marsh or surface drainage works. O. Reg. 222/07, s. 3 (4).



Contraventions

4.  (1)  An order under subsection 182.1 (1) of the Act to pay an environmental penalty shall not be issued for any contravention referred to in that subsection except as set out in this Regulation. O. Reg. 222/07, s. 4 (1).

(2)  An order under subsection 182.1 (1) of the Act to pay an environmental penalty may only be issued,

(a) to a regulated person; and

(b) for a contravention that,

(i) occurs at a plant described in subsection 3 (1) or relates to the operations of the plant,

(ii) is described in Column 2 of Table 2, if the circumstances, if any, set out in Column 3 of that Table for the contravention apply, and

(iii) occurs or continues on or after the date specified in Column 4 of Table 2 in respect of the contravention. O. Reg. 222/07, s. 4 (2).



Notice of intention to issue penalty

5.  (1)  Before issuing an order to a regulated person under subsection 182.1 (1) of the Act, the Director shall give the regulated person a written notice of intention to issue the order that includes the following information:

1. A statement of the Director’s intention to issue an order under subsection 182.1 (1) of the Act.

2. The item number in Table 2 of the contravention to which the proposed order will relate.

3. The classification of the contravention as a Type 1, 2 or 3 contravention in accordance with Table 2, the classification of the contravention as a less serious, serious or very serious contravention in accordance with sections 10 to 15, and the cell of Table 4 that corresponds to the classifications.

4. A statement of which factors listed under paragraph 3 of subsection 9 (1) the Director will consider in determining the amount of the gravity component from the range set out in the cell of Table 4 identified under paragraph 3 of this subsection.

5. In the case of a contravention specified in item 1 of Table 2,

i. a description of the adverse effects that were caused or that may be caused by the contravention, and

ii. a statement as to whether the discharge contained a toxic substance.

6. A description of the days or parts of days on which the contravention occurred or continued in respect of which the Director intends to issue the order, where a day is a 24-hour period.

7. If appropriate, the location of the contravention.

8. If the Director is of the opinion that as a result of the contravention, a monetary benefit described in paragraph 1 or 2 of subsection 8 (1) was acquired by the regulated person, the estimated monetary benefit and a summary of how the Director determined the monetary benefit, including the time frame that was used in the estimate.

9. Information about the regulated person’s right under section 6 to request a reduction to the amount of the environmental penalty and the grounds on which such a reduction may be requested. O. Reg. 222/07, s. 5 (1).

(2)  A notice of intention given under subsection (1) may apply to one or more contraventions. O. Reg. 222/07, s. 5 (2).

(3)  The Director may amend a notice of intention after it has been issued by giving the regulated person a written amendment. O. Reg. 222/07, s. 5 (3).

Request for review of penalty

6.  (1)  A regulated person who receives a notice of intention under subsection 5 (1), or an amendment under subsection 5 (3), may make any one or more of the following requests in writing, within 15 days after the date indicated on the notice of intention or on the amendment, if any, or within such longer period as the Director agrees to in writing:

1. If the notice of intention or amendment includes an estimate of monetary benefit, a request that the Director consider the information included with the request and redetermine the monetary benefit.

2. If the notice of intention or amendment relates to a contravention specified in item 1 or 2 of Table 2 and includes a statement that the discharge contained a toxic substance, a request that the Director consider any information included with the request demonstrating that the toxic substance or its concentration did not result from the operation or activities of the plant.

3. A request that the Director consider any information included with the request before determining the gravity component of the penalty under section 9.

4. A request that the Director, after determining the gravity component of the penalty under section 9, grant a reduction to the component in accordance with section 16 on the grounds that the regulated person took steps to prevent the contravention or mitigate its effects.

5. A request that the Director, after determining the gravity component of the penalty under section 9, grant a reduction to the component in accordance with section 17 on the grounds that at the time of the contravention, the regulated person had in place an environmental management system described in section 17. O. Reg. 222/07, s. 6 (1).

(2)  If the notice of intention or amendment applies to more than one contravention, a request under subsection (1) may be made in respect of any one or more of the contraventions. O. Reg. 222/07, s. 6 (2).

(3)  A request made under subsection (1) shall include the following information:

1. For a request under paragraph 4 of subsection (1), the grounds on which the reduction is requested and a specific description of the steps taken.

2. For a request under paragraph 5 of subsection (1), any document demonstrating that, at the time of the contravention, the regulated person had in place an environmental management system described in section 17.

3. For any request under subsection (1), all information and submissions that the regulated person wants the Director to consider with respect to the request. O. Reg. 222/07, s. 6 (3).



Amount of environmental penalty

7.  (1)  The amount of the environmental penalty for a contravention is,

A + (B – C – D – E)

in which,

“A” is the monetary benefit received by the regulated person as a result of the contravention, as determined under section 8,

“B” is the gravity component for the contravention, as determined under section 9,

“C” is the reduction, if any, to the gravity component determined under section 16 (reductions for prevention or mitigation),

“D” is the reduction, if any, to the gravity component determined under section 17 (reduction for environmental management system), and

“E” is the reduction, if any, to the gravity component determined under subsection 18 (2) or (3), as the case may be (reduction for agreement with the Director).

O. Reg. 222/07, s. 7 (1).

(2)  If, after determining the environmental penalty for the contravention, the Director determines that the amount of the environmental penalty is, by its magnitude, punitive in nature having regard to all the circumstances, the Director shall reduce the amount of the environmental penalty to an amount that is consistent with promoting internal discipline among regulated persons to comply with the requirements under the Act. O. Reg. 222/07, s. 7 (2).

Monetary benefit

8.  (1)  The following monetary benefits are prescribed for the purpose of paragraph 3 of subsection 182.1 (17) of the Act:

1. Avoided costs, which are costs that the regulated person avoided incurring by failing to comply with a provision described in Table 2. Avoided costs apply in respect of provisions that must be complied with on or by a certain date and that, once that date has passed, cannot be complied with on a future date.

2. Delayed costs, which are costs that the regulated person delayed incurring by delaying compliance with a provision described in Table 2. O. Reg. 222/07, s. 8 (1).

(2)  If the Director is of the opinion that a regulated person acquired a monetary benefit described in subsection (1), the Director shall,

(a) determine the time frame during which the regulated person acquired the monetary benefit; and

(b) determine the amount of the monetary benefit in accordance with the Ministry of the Environment publication entitled “Procedure for the Calculation of the Monetary Benefit Component of Environmental Penalties”, as amended from time to time. The document is available at the Ministry’s Public Information Centre and on the Ministry’s website. O. Reg. 222/07, s. 8 (2).

Gravity component

9.  (1)  The gravity component for the first day on which a contravention occurs is determined as follows:

1. The Director classifies the contravention as a Type 1, 2 or 3 contravention as indicated in Column 5 of Table 2, and as a less serious, serious, or very serious contravention in accordance with sections 10 to 15.

2. The Director determines the cell of Table 4 that corresponds to the classifications determined under paragraph 1.

3. The Director determines an amount that is within the range set out in the cell, taking into consideration those of the following factors that were indicated under paragraph 4 of subsection 5 (1) in the notice of intention:

i. The history of contraventions, if any, that resulted in convictions of the regulated person under the Act or the Ontario Water Resources Act or in orders issued to the regulated person under section 182.1 of the Act or section 106.1 of the Ontario Water Resources Act.

ii. Whether the regulated person is a member of the Ministry’s Ontario’s Environmental Leaders Program at the time of the contravention.

iii. The extent of the delay in complying with the requirement that was contravened.

iv. Whether the extent of the deviation from the requirement that was contravened is in the lower or upper part of the range for the seriousness classification for the contravention, as set out in sections 10 to 15.

4. For a contravention specified in item 1 or 2 of Table 2, the Director shall multiply the amount determined under paragraph 3 by 1.35 if the discharge contains a toxic substance, unless the information submitted under paragraph 2 of subsection 6 (1) demonstrates that the toxic substance or its concentration did not result from the operations or activities of the plant.

5. For a contravention specified in item 3 or 4 of Table 2, the Director shall multiply the amount determined under paragraph 3 by 1.35, if the contravention relates to a contaminant that is a toxic substance. O. Reg. 222/07, s. 9 (1).

(2)  If a contravention specified in item 1 to 4, 8 or 13 of Table 2 occurs on or continues for more than one day, the gravity component for the contravention is the amount obtained by multiplying the amount determined under subsection (1) by the number of days on which the contravention occurs or continues. O. Reg. 222/07, s. 9 (2).

(3)  If a contravention specified in item 5, 7 or 10 of Table 2 occurs on or continues for more than one day, the gravity component for the contravention is the lesser of the following:

1. $100,000.

2. The amount obtained by multiplying the amount determined under subsection (1) by the number of days on which the contravention occurs or continues. O. Reg. 222/07, s. 9 (3).

(4)  If a contravention specified in item 6, 9, 11 or 12 of Table 2 occurs on or continues for more than one day, the gravity component for the contravention is the lesser of the following:

1. $60,000.

2. The sum of the following amounts:

i. The amount determined under subsection (1) for the first day of the contravention.

ii. 50 per cent of the amount determined under subsection (1) for each of the second to the seventh days on which the contravention occurs or continues.

iii. 25 per cent of the amount determined under subsection (1) for each of the eighth to the 30th days on which the contravention occurs or continues.

iv. 10 per cent of the amount determined under subsection (1) for each of the 31st to the 90th days on which the contravention occurs or continues.

v. 5 per cent of the amount determined under subsection (1) for each of the 91st day to the 180th days on which the contravention occurs or continues.

vi. Nothing, for any days after the 180th day on which the contravention occurs or continues. O. Reg. 222/07, s. 9 (4).

(5)  In this section, a day is a 24-hour period and a contravention occurs on or continues for more than one day if it occurs on or continues for more than one 24-hour period. O. Reg. 222/07, s. 9 (5).

Seriousness of contravention, contravention of s. 14 of the Act

10.  (1)  The seriousness of a contravention specified in item 1 of Table 2 is classified under this section. O. Reg. 222/07, s. 10 (1).

(2)  A contravention is less serious if it is not classified as serious or very serious. O. Reg. 222/07, s. 10 (2).

(3)  A contravention is serious if the contravention causes or may cause one or more of the following effects:

1. Localized injury or damage to any animal life.

2. Widespread or long-term interference with the normal conduct of business.

3. Widespread or long-term loss of enjoyment of the normal use of property.

4. Widespread damage to property, other than plant or animal life.

5. Damage to property, other than plant or animal life, such that the property cannot be restored, within a reasonable time, to the condition that existed immediately before the discharge occurred. O. Reg. 222/07, s. 10 (3).

(4)  A contravention is very serious if the contravention causes or may cause one or more of the following effects:

1. Widespread injury or damage to plant or animal life.

2. Harm or material discomfort to any person.

3. An adverse effect on the health of any person.

4. The impairment of the safety of any person. O. Reg. 222/07, s. 10 (4).



Seriousness of contravention, contravention of s. 93 of the Act

11.  (1)  The seriousness of a contravention specified in item 2 of Table 2 is classified under this section. O. Reg. 222/07, s. 11 (1).

(2)  A contravention is classified as less serious if the regulated person did everything practicable to prevent, eliminate and ameliorate the adverse effects resulting from the spill and to restore the natural environment, but did not do so forthwith. O. Reg. 222/07, s. 11 (2).

(3)  A contravention is classified as serious if the regulated person took steps that had some effect in preventing, eliminating and ameliorating the adverse effects resulting from the spill or in restoring the natural environment. O. Reg. 222/07, s. 11 (3).

(4)  A contravention is classified as very serious if the regulated person failed to take any effective steps to prevent, eliminate and ameliorate the adverse effects resulting from the spill or to restore the natural environment. O. Reg. 222/07, s. 11 (4).

Seriousness of contravention, contravention of discharge limit

12.  (1)  The seriousness of a contravention specified in item 3 or 4 of Table 2 is classified under this section. O. Reg. 222/07, s. 12 (1).

(2)  Where the limit specified in the regulation or order requires a discharge to have a pH value,

(a) the contravention is classified as less serious if the discharge deviates from the pH value by less than 0.5;

(b) the contravention is classified as serious if the discharge deviates from the pH value by 0.5 or more but less than 1.0; and

(c) the contravention is classified as very serious if the discharge deviates from the pH value by 1.0 or more. O. Reg. 222/07, s. 12 (2).

(3)  Where the limit specified in the regulation or order does not relate to pH,

(a) the contravention is classified as less serious if the limit is exceeded by less than 50 per cent;

(b) the contravention is classified as serious if the limit is exceeded by 50 per cent or more but less than 100 per cent; and

(c) the contravention is classified as very serious if the limit is exceeded by 100 per cent or more. O. Reg. 222/07, s. 12 (3).


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