Commissioner: Canada Not Effectively Enforcing TDGA & CEPA

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Scott Vaughan, the federal Commissioner of the Environment and Sustainable Development, has been busy releasing his annual reports. On Oct. 4, he released his report on Canada’s climate change efforts. And on Dec. 13, he tabled in Parliament his report on Canada’s efforts to enforce environmental protection laws, including CEPA and the TDGA. Both reports were very critical of the federal government.

CEPA Enforcement

In Chapter 3, the report looks at enforcement of the CEPA and 45 of its 53 regulations. It found that Environment Canada’s enforcement program isn’t well managed to adequately enforce compliance with CEPA.

The report did acknowledge that Environment Canada has made a number of important improvements to the organization and administration of the enforcement program, including:

  • Centralizing the management of the program under the direction of a Chief Enforcement Officer
  • Establishing a methodical, risk-based enforcement planning process for determining enforcement priorities
  • Identifying aspects of the enforcement program that need improvement
  • Developing an enforcement policy and management controls intended to ensure that enforcement officers apply the law in a fair, predictable and consistent manner.

But report found that the Environmental Enforcement Directorate doesn’t have adequate information on who it’s regulating and who isn’t complying with the CEPA.  This information is needed to determine which regulated companies and activities pose the greatest risks to human health or the environment as a result of non-compliance. Without a clear understanding of regulated companies, industries and activities and which ones pose the greatest threats, the Directorate can’t be sure that its National Enforcement Plan is targeting the highest risks to human health and the environment.

In addition, it noted that some of the regulations aren’t enforced at all due to a lack of training for enforcement officers or inadequate laboratory tests. The report also includes concerns that the government hasn’t been diligent in verifying that regulated companies have taken steps to correct identified violations.

Bottom line: The Commissioner found that Environment Canada doesn’t know the extent to which its enforcement activities are improving compliance or minimizing environmental damage and threats to Canadians. In addition, it’s been slow to address significant shortcomings, such as inadequate training and inadequate gathering and analysis of information to inform enforcement planning and targeting.

TDGA Enforcement

Chapter 1 of the report addresses the enforcement of the TDGA and related regulations. The report notes that weaknesses in the management practices of Transport Canada’s transportation of dangerous goods program are long-standing. For example, an internal audit conducted in 2006 identified a number of weaknesses in management practices that have yet to be addressed, including the need for a consistent approach to planning and carrying out Transport Canada’s enforcement activities.

The report concluded that Transport Canada hasn’t designed and implemented the management practices needed to effectively monitor regulatory compliance with the TDGA. Key elements that are missing include a national risk-based regulatory inspection plan and necessary guidance for inspectors. In many instances, the nature and extent of the inspections carried out aren’t documented. And there was little indication that the Department had followed up on identified instances of non-compliance to ensure that companies transporting dangerous goods had corrected the problems identified.

It also found that Transport Canada isn’t adequately reviewing and approving the emergency response assistance plans (ERAPs) submitted by regulated companies. Nearly half the plans submitted have been provided only an interim basis. In fact, many of the companies shipping dangerous goods have operated with an interim approval for over five years—and some for over 10 years. (Click here for information on compliance with the ERAP requirements).

The Government’s Response

Environment Canada was shown drafts of the report throughout its preparation, but the department’s senior management “has refused to acknowledge the facts presented in this report.” In fact, Environment Canada was adamant in its disagreement with the report’s findings.