Effective June 23, 2014, new administrative penalties may be issued for breaches of certain provisions of British Columbia's Environmental Management Act, the Integrated Pest Management Act, and permits issued under these Acts. Administrative penalties are an increasingly popular means of enforcing environmental obligations because they may be issued without having to establish liability through a court process.
Under the new law, a person may not apply for or amend a permit or approval until the administrative penalty is paid in full. The Ministry of Environment will also publish names, reasons for penalty, and penalty amounts in the publicly searchable Environmental Violations database and the Quarterly Environmental Enforcement Summaries.
Use of Administrative Penalties
According to the new regulations, administrative penalties are intended for moderate offences that merit more than a warning or ticket, but do not justify a criminal prosecution.
Examples of offences to which administrative penalties may be applied include discharging waste without a required authorization, releasing substances into the environment that exceed what is permitted under an authorization or regulation, and administrative non-compliance, such as a failure to submit a monitoring report.
The new administrative penalty program brings the Ministry of Environment in line with provincial agencies such as the Ministry of Forests, Lands and Natural Resource Operations and the BC Oil and Gas Commission and with other federal and provincial administrative penalty programs.
Penalty Amounts and Enforcement
There are four categories of penalties with maximum penalty limits of $2,000, $10,000, $40,000 and $75,000 per day. Only contraventions that pose a significant risk to the environment or human health or safety have been prescribed a $75,000 maximum. Administrative non-compliance will generally be subject to lower maximums. There are no fixed penalties and no minimum penalties. Penalties are calculated on a case-by-case basis.
In determining the administrative penalty amount, the regulator will consider:
- the nature of the contravention;
- the real or potential adverse effect of the contravention;
- any previous contraventions by, administrative penalties imposed on, or orders issued to the person;
- whether the contravention was repeated or continuous;
- whether the contravention was deliberate;
- any economic benefit derived by the person from the contravention;
- whether the person exercised due diligence to prevent the contravention;
- the person's efforts to correct the contravention;
- the person's efforts to prevent recurrence of the contravention; and
- any other relevant factors.
The regulations also state that the due diligence defence is not available for a contravention for which an administrative penalty is imposed.
An administrative penalty must be paid within 30 days of the final determination or the decision of the Environmental Appeal Board if the final determination is appealed or sent back for re-determination.
Notice of Penalties and Right to Hearing
If the regulator intends to impose an administrative penalty for an alleged contravention, the regulator must send written notice to the person describing the circumstances that gave rise to the alleged contravention and a preliminary assessment of the penalty amount. The notice must be served within 3 years of the date of the alleged contravention or the date when evidence of it came to the knowledge of the regulator.
Upon receipt of this notice, a person has 30 days to request an opportunity to make representations. Upon receiving such a request, the regulator must conduct a hearing and issue a final determination on whether to impose the penalty and if so, the penalty amount. The final determination must also include reasons for the decision, when the penalty must be paid, and information on the person's right to appeal the determination to the Environmental Appeal Board.
What This Means for You
While the new regulations do not create new offences under the Environmental Management Act or Integrated Pest Management Act, they do introduce a new enforcement tool for the BC Ministry of Environment. Anyone who receives notice of an administrative penalty ought to consider whether to seek an opportunity to be heard in order to limit the possible financial penalty that may be imposed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.