Environment Committee on Nov. 29th, 2016

[The Chair (Mrs. Deborah Schulte (King—Vaughan, Lib.)), Liberal, Deb Schulte]

Good afternoon, everyone. We're going to start our next session on CEPA, regarding the enforcement.

We have several guests with us today, and I'd like to introduce them.

We have Stephen Laskowski, senior vice-president of the Canadian Trucking Alliance.

From the Department of the Environment, we have Margaret Meroni, chief enforcement officer, enforcement branch; Heather McCready, director general, environmental enforcement directorate, enforcement branch; and Linda Tingley, senior counsel, environmental legal services.

Welcome to all, and thank you very much for being here with us today.

We'll start with Stephen Laskowski.

Mr. Laskowski, the floor is yours.

[Stephen Laskowski, Senior Vice-President, Canadian Trucking Alliance]

Thank you, Madam Chair.

Thank you, committee members.

I'll start by talking a little bit about who we are, so you get an understanding of our perspective.

We are an alliance of provincial trucking associations from coast to coast. We represent over 4,500 trucking companies. Our board is made up of 80 executives from across the country who are either owners or senior vice-presidents, so we represent the ownership within the trucking industry, from for-hire trucking, couriers, and private carriers—all aspects of the industry.

I'm going to tell you a story. I'm going to do what my media guys tell me never to do, which is to bury the lead, but I think you need to have an understanding of where we're coming from and our perspective when I get to the point of CEPA and enforcement.

There are two things to be mindful of as I tell this story and as I get through the recommendations. The Canadian Trucking Alliance is extremely supportive of environmental controls on our engines, which started with air-quality emissions and are moving forward with greenhouse gas emissions. Make no mistake about our support for cleaning the air and reducing our carbon footprint.

The second element of this issue to remember, when I get to it, when I give our recommendations, is that this is not a new issue I bring before this committee. The Canadian Trucking Alliance has raised the issue of enforcement in CEPA in this particular example, which I'll get to in about five or six minutes, since 2012 or 2013. It's not a new issue, but we thought this was a wonderful opportunity, and we thank you for this review to bring it forward again.

First, I'm going to talk about trucks and the environment to give you an idea of how we are regulated. We are the only freight mode in North America that is regulated both from an air-quality emission perspective and from a greenhouse gas perspective.

I'll start with the air-quality emissions. We are the only mode regulated for particulate matter and NOx. What are those two key emissions? Think smog, and on the particulate side, think respiratory-illness diseases. That rule was phased in over three periods: 2004, 2007, and 2010. By 2010, our engines—and all engines sold since 2010—are what the U.S. EPA has called “the near-zero emissions engine”. What does that mean? It means that the air you're breathing outside in Ottawa today is probably dirtier than the emissions coming out of truck tailpipes with regard to particulates and NOx.

The second phase of the regulations that come into force is on carbon footprint. Trucking is the only freight mode in Canada with engines regulated from a carbon perspective. That rule started in 2014. It goes to 2018. A second phase we're currently working with the EPA and Environment Canada on developing will start and come into effect in 2018. It will deal not only with truck engines but also with tractors and trailers.

Both of these rules are fantastic for the environment. They work, and we're supportive of them.

In terms of some of the backdrop, and no doubt you've heard this from every other sector, these rules come with a cost. One is the capital acquisition cost, which really isn't the issue I'm bringing before you; it's just an information item. Costs for those 2004, 2007, and 2010 trucks were around $15,000 more per tractor. That's not an insignificant cost when you're looking at a tractor of around $120,000, especially when you get to larger fleets and sizes, and when you're talking about for small businesses. But that's the cost of clean air. That's not an objection from CTA; it's just a fact for your consideration.

The more important issue is the cost of maintenance and downtime. The 2004, 2007, and 2010 air quality regulations were developed in a Field of Dreams type of mode: build the rig, and the technology will come.

The technology came, but it really wasn't ready. What does that mean? It means for trucking companies today that if you are a 100-truck operator you now need 120 trucks, 20% more in your fleet, to deal with downtime related to emissions controls. That's a reality.

The other reality of the regulation is to protect the environment and to ensure that these environmental components are dealt with by the fleet owners and their shops. Think of a “check engine” light, except a little bit more sophisticated. Every truck has one now, and when that check engine light comes on, it's called limp mode, which means there is a problem with some of the environmental control devices on that truck. Unlike your check engine light, which you look at and it gets annoying and you wonder if that thing is ever going to go away, for a trucking company and for a truck driver, that's a ticking clock. Eventually the truck shuts down if you don't address the issue. Keep in mind that we're dealing with trucks that are underperforming from a reliability standpoint as well as the limp mode issue.

I'll raise this in my recommendations moving forward, but what CTA will recommend going forward, because the limp mode is also going to be a function of the GHG regulation, is that we extend the distance of the limp mode to allow truck drivers who may be in various parts of the country to get home so their truck can get fixed. The environment will be dealt with but these truck drivers will be able to get home and be safe and also deliver their load as many of the loads are very time sensitive. We'll address the environment, driver safety, and the economy.

Again, I want to emphasize, as I now get into the heart of my recommendations and why you're here today, that the CTA is very supportive of the rules as they concern air quality and GHG, but there are issues. Some within our industry, with regard to maintenance and the limp mode, have decided to go an alternative route. What is that route? They've used what we generically term defeat devices. These are devices that circumvent the environmental controls on trucks. We are not supportive of the use of that technology.

In the United States, the Clean Air Act allows the U.S. federal government to go after manufacturers, resellers, and installers of these defeat devices. In Canada we do not have that authority under CEPA. Also, the provinces themselves have rules—some do and some don't—with regard to these defeat devices. Those are inconsistent and they have dark holes. We've also found consistently poor enforcement, I would label it, across the country with regard to these defeat devices.

The following are our recommendations:

One is that CEPA be amended to allow the Canadian government to enforce the same or similar penalties to those administered under the Clean Air Act for engine tampering.

Two is that although it's not ultimately the decision of the Government of Canada, Transport Canada and Environment Canada would assist the CTA in championing a tampering inspection that specifically looks for evidence of EGR and DPF devices. Those are the two main components under the clean air emissions controls to be added to the periodic mandatory vehicle inspection program. What is that? Good trucking companies will inspect their vehicles five, six, seven, eight, ten times a year from a safety perspective, but according to provincial law, a truck must be inspected at least once a year.

We're saying that at these private inspection licence facilities performing what’s called the PMVI, periodic motor vehicle inspections, a program under provincial control, these issues of defeat devices be monitored and that trucks be failed if they are found to have them.

Three is that Environment Canada must begin working with Transport Canada to establish testing protocols for greenhouse gas reduction qualifying technology and supporting wiring systems.

Although we are not making excuses for people who use defeat devices, there is a reason this is happening in the marketplace. It is creating an unlevel playing field, but there is also a motivation out there, the reason this is being done.

Four, in June 2015 the Government of Canada introduced the safer vehicles for Canadians act. The bill proposes new powers, which would allow the Minister of Transport to order a company to issue a recall and require manufacturers to fix defective or non-compliant vehicles. The minister could also order manufacturers or importers to pay for repairs and ensure that new vehicles perform reliably before they are sold to the public.

In addition, manufacturers and importers can face fines of up to $200,000 per violation. These fines are an alternative to prosecution to help address safety issues more quickly.

The Canadian government should re-examine the introduction and expansion of the safer vehicles for Canadians act to better protect purchasers of commercial equipment.

Lastly, CTA supports a modified form of limp mode technology, which I explained earlier.

In closing, I think this is a wonderful opportunity for this committee and the Government of Canada to ensure that environmental controls are in place under CEPA, and that defeat devices aren't out there, so we protect the environment and also create a level playing field for businesses. The vast majority of trucking businesses are playing by the rules and working through these maintenance rules.

Thank you, Madam Chair.

Thank you, committee members.

[The Chair, Liberal, Deb Schulte]

Thank you very much for that testimony. It was very enlightening.

Margaret Meroni, if you would like to get started, that would be great. Thank you very much.

[Margaret Meroni, Chief Enforcement Officer, Enforcement Branch, Department of the Environment]

Thank you, Madam Chair and members of the committee.

Good afternoon. It is a pleasure to be here.

My name is Margaret Meroni, and I'm the chief enforcement officer at Environment and Climate Change Canada.

I'm here today with my colleagues Heather McCready, the director general of the environmental enforcement directorate; and Linda Tingley, senior counsel from the Department of the Environment.

I am glad the committee has expressed interest in enforcement matters as part of its review of the Canadian Environmental Protection Act 1999, or CEPA.

We are pleased to speak to you this afternoon to explain our mandate and operations as well as our activities as they relate to the enforcement of CEPA.

Strong and effective enforcement of Canada's environmental and wildlife protection laws is integral to our commitment to clean air, clean water, and the conservation of wildlife species and their habitat.

I will start with a brief overview of our branch operations to provide some context, and will then explain the role and functions of environmental enforcement officers.

The enforcement branch was consolidated as an independent branch at Environment and Climate Change Canada 10 years ago with a chief enforcement officer as the head of the branch, reporting to the deputy minister of Environment Canada and bringing together wildlife and environmental protection in a merged organization.

When the branch was created, we were able to gather employees dispersed across the department and integrate them into the new branch. In 2005, the newly formed enforcement branch had about 240 employees.

Once established, the branch was further stabilized when budget 2007 and budget 2008 provided us with funding to increase the number of officers. Today we have about 375 employees, approximately 280 of whom are uniformed officers. Of those officers, 85 are designated to enforce federal wildlife legislation, and the remainder enforce CEPA and the pollution prevention provisions of the Fisheries Act.

The branch has two operational directorates: the wildlife enforcement program and the environmental enforcement program. The wildlife program administers four wildlife acts, including enforcement of 147 protected areas, which is worth mentioning, given that the committee is also studying protected areas. The environmental enforcement program administers CEPA and the pollution prevention provisions of the Fisheries Act, the former being the focus for today.

With the establishment and growth of the branch, we developed a comprehensive training program for our enforcement officers as well as a suite of policies and protocols to guide their decision-making.

We have continued to adapt our operations as new regulations come into force and as our mandate and the suite of enforcement tools continue to evolve. Enforcement officers administer various acts and associated regulations, either in whole or in part, that deal with risks to the environment and its biodiversity.

A significant impact to our operations occurred with the coming into force of the Environmental Enforcement Act, EEA, in 2010. The EEA set out to strengthen and harmonize enforcement regimes across the many acts under our responsibility. It further enhanced the fine regime with the introduction of mandatory minimum fines and increased maximum fines for serious environmental offences.

The EEA enables tougher enforcement to hold offenders accountable for their actions, and it requires the court to increase the fine imposed on an offender to account for damage to the environment or to a valuable or unique component of the environment. The amendments brought about by the EEA also introduced the concepts of loss-of-use and non-use value for the purposes of assessment of damages by the court, which allows the Public Prosecution Service of Canada, the PPSC, to introduce evidence of environmental damage and economic benefit as aggravating factors when they take cases to court. The EEA also introduced a common set of sentencing principles, helping to ensure consistency in how environmental law is applied across the country.

The EEA is being implemented in phases. With the coming into force of the Environmental Violations Administrative Monetary Penalties Act, EVAMPA, we have gained another tool in being able to use administrative monetary penalties or AMPs. We now await implementation of the AMPs regime to begin using this tool. It is anticipated that the environmental violations administrative monetary penalties regulations will come into force sometime in 2017.

When the administrative penalties do come into force, we will have an additional tool to address non-compliance under CEPA.

We will then be able to assess an administrative penalty instead of pursuing prosecution, depending on the circumstances of each offence.

As for linking the legislative authorities and how an enforcement officer functions in the field, I'd like to explain the principal activities and decision-making of an officer.

Our enforcement officers are empowered to take specific actions under the laws they enforce, and CEPA provides our officers with all the powers of a peace officer. Under CEPA, they are authorized to carry out inspections to verify compliance with the law; they can direct that corrective measures be taken when there is danger to the environment, human life, or health caused when the illegal release of a regulated substance has occurred or is about to occur; and they can conduct investigations of suspected violations. Our officers also have the power to arrest, to seize, and to apply to a judge to issue them a search warrant.

In addition to these powers, enforcement officers have a choice of enforcement actions available, depending on the nature and severity of the non-compliance. These actions include issuing warnings, issuing directions in the event of a release, issuing tickets, issuing detention orders for ships, and issuing environmental protection compliance orders, or what we call EPCOs.

Finally, our officers have discretion to lay charges, and the decision is generally made with the approval of the Public Prosecution Service of Canada, the PPSC. Once charges are laid, the PPSC assumes full control over the proceedings. An investigation can be terminated with charges stayed or withdrawn at this stage. Officers commonly consult the PPSC before taking the step of laying charges in a specific case. As a matter of fact, in certain provinces—New Brunswick, Quebec and British Columbia—it is mandatory for officers to obtain pre-charge approval.

It is important to note that while officers may make recommendations, the decisions respecting the prosecution of charges and the size and nature of the penalty sought through the court proceedings are at the sole discretion of the Public Prosecution Service of Canada.

As for the other enforcement actions I mentioned, our enforcement officers, as is generally the case with those possessing peace officer powers, are independent in choosing among these options to address non-compliance. They may consult for advice, but they are the ones who ultimately make the decision.

Officers are, however, guided by our compliance and enforcement policies, which are public, to assist them with the general principles that govern the application of our laws. These policies provide our officers guidance in the exercise of their discretion. Through adherence to these policies, our officers apply the act in a manner that is fair, predictable, and consistent, meaning we strive for fairness and equity in how we apply the law across Canada.

Our focus is on suppression—that is, deterrence achieved through the risk of unscheduled inspections—prevention of damage to the environment, and compliance with the act within the shortest time possible. This is worth noting as our focus is not only on ensuring that the law is complied with but also on ensuring that the environment is protected and that damage to it is minimized while an incident is occurring.

Our goal is to secure compliance in the most efficient and sustainable way possible, ideally before significant damage is done. We may need the full force of the law to accomplish this objective, or we may be able to get there in other ways. It is often the case that a simple warning will be sufficient to bring non-compliant entities into compliance.

In 2015-16, we conducted approximately 4,000 CEPA inspections, which covered over 3,000 infractions. In roughly half of these incidents, a written warning was sufficient to bring the regulatee into compliance. While this isn't headline-grabbing news, it is an effective use of our resources and has allowed us to bring a significant number of offenders into compliance before serious damage could be done, in a manner consistent with the principles outlined in CEPA and our compliance-and-enforcement policy.

As you may appreciate, there is almost an equal divide between how much of our work is done proactively, and how much is responsive.

Responsive inspections are driven by received complaints from the public, referrals from provincial partners and other entities, and incidents such as pipeline breaks, train derailments or at times self-reported by industry.

The same officers who enforce CEPA are also designated to enforce the pollution prevention provisions of the Fisheries Act. Indeed, about half of the almost 7,000 inspections we conducted under CEPA and the Fisheries Act last year, the 2015-16 fiscal year, were responsive in nature.

We ensure that we manage our resources to enable us to respond appropriately. Proactive work is essentially planned inspection activity predicated on risk-based planning and informed through intelligence that establishes national and regional priorities and projects. We take into account a series of factors, such as the risk to the environment and human health represented by the regulated substance or activity, compliance issues in a specific community, new and amended regulations, government and departmental priorities, and domestic and international commitments and obligations.

We focus our efforts strategically, given that there are tens of thousands of regulated entities across Canada. This means that in any given year we can only address a certain representation of the regulated community. We target our actions on areas with the highest likelihood of non-compliance and where non-compliance leads to the greatest risk of environmental harm and threat to human health.

In terms of results, last year, which was fiscal year 2015-2016, in addition to the 4,000 inspections we conducted, we opened 54 investigations under CEPA and obtained 24 convictions. Eighteen of those convictions came from our planned work. This marks a year-on-year increase in the number of convictions obtained since 2011-2012, when only ten were registered. There has also been a roughly ten-fold increase in the size of the overall fines handed down by the courts during this same period, from about $100,000 in total in 2011-2012, to over $1.1 million in 2015-2016.

However, I want to stress that enforcement results cannot and should not be measured solely by numbers. Court cases, regardless of the amount of the penalty obtained, certainly do provide a general deterrence for regulatees; however, our presence in a specific regulated community also yields results. That is hard to quantify but is definitely effective.

With that, I will conclude my statement. We would welcome any questions you may have.

Thank you all.

[The Chair, Liberal, Deb Schulte]

Thank you very much.

I am sure we will have lots of questions.

First, I just want to welcome to our committee Angelo Iacono, who is standing in for John Aldag.

Thank you very much. That's great.

We will begin questions with Mr. Fisher.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you very much, Madam Chair.

I thank you folks for being here.

First off, I just want to comment on something Stephen said.

I really appreciate the very specific recommendations that you're coming forward with for your industry. I salute you on that. I don't have any questions based on what you said. Your testimony was very clear and very direct on what you hoped for. It surprised me a little bit. I want to thank you for those very specific recommendations.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Not you personally.

[Some hon. members]

Oh, oh!

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Not you personally.

I'll go to Margaret.

Thank you as well for your testimony. Correct me if I'm wrong. This is just the sense that I got from your testimony, which covered an awful lot. It feels to me, as it felt to me when I was a regional councillor for years, that our enforcement is reactionary and not proactive.

I'll give you a chance to give me a really quick answer. Do you feel that I'm off base on that? There was an awful lot in your testimony, not that there's an easy yes or no answer. Do you feel that's an assumption I'm making? It seems as though it may be complaint-driven.

[Margaret Meroni]

Thank you for the question.

You're right. There is a split between the reactive or responsive and the proactive enforcement work we do. Generally when we look at the numbers, we see that where we take action there is about a 40-40 split in terms of percentages, with 20% of our work being ongoing maintenance work. A lot of it is based on the incidents that occur, responses to different referrals we may get, and self-reporting of incidents of all sorts of magnitudes. This is why we are allowed to organize ourselves around only 40% of the proactive inspection work.

We organize that around looking at a risk-based approach informed by intelligence, and by gathering information from various parts of our organization, including our officers in the field, to try to determine where there is the highest risk to the environment and where we know there are higher degrees of non-compliance. It is a bit of a balancing act.

Unfortunately, when it comes to responsive enforcement, we can't plan for it, but we do try to allocate our resources and our efforts to be able to respond. Usually, they are quite major incidents, such as train derailments, pipeline ruptures, and so forth.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

How about in remote areas and indigenous communities in the North?

We've heard various testimony to the effect that they are affected more by toxic substances than are other communities in more populated areas, so let's look at your enforcement measures and prosecutions from April 2014 to March 2015.

Are you able to tell us how many of the issues were related to northern communities or indigenous communities?

If you're not able to answer that now, perhaps you could provide that to the committee in a written response, because I'm concerned, based on my assumptions, that there would be a very small amount in the northern areas as compared to the areas where there are more eyes on the street.

Would you provide that in a written response, or do you want to comment on that now?

[Margaret Meroni]

I'll defer to Heather to respond, and then we'll see if an additional information request will be needed.

[Heather McCready, Director General, Environmental Enforcement Directorate, Enforcement Branch, Department of the Environment]

We can certainly follow up with more information.

First of all, thank you for having us here. It's a genuine pleasure for me to be here to talk about our work. I really appreciate the opportunity.

In terms of northern communities, one of the projects we're working on proactively is the kind of thing that doesn't hit the news. You hear about the reactive stuff because it is splashy. It hits the news. There's a major incident to which we're responding.

You don't hear about the proactive work, because there are things we're working on over a long period of time, often with other partners. They may or may not end in prosecutions. The goal isn't necessarily to chase after a prosecution; the goal is to find a big environmental problem and solve it. I'm really happy that you mentioned northern communities and indigenous communities.

One of the issues faced by those communities is storage tanks. Especially in the North, there are a lot of people who are using storage tanks for fuel. Some of these tanks are old and unregistered. No one even knows they're there. The owners of the properties may not know they have a storage tank. Some of these tanks are leaking.

Some of them have inadequate secondary containment or product transfer areas. That's important in the North, because if you're filling up a fuel tank and it's really, really cold, you're probably going to go inside. You're not watching the fuel as it's being deposited into the storage tanks. If anything goes wrong, you're not there to stop it and clean it up.

We have a project that has actually been going on for a few years now, focusing specifically on storage tanks, looking for unregistered storage tanks, and the ones that are registered, making sure they've been inspected, making sure that there's follow-up, and dealing with the tanks that have issues.

Sometimes you're going to see prosecutions on that, and recently, there have been a few in Saskatchewan, for example, involving first nations groups. In those cases, it's not that we're targeting those populations for severe enforcement, it's that we recognize that a leaking storage tank in that community can cause real environmental and human health problems, and can lead to increased amounts of contaminated sites in those areas.

By increasing enforcement there, we're really trying to stop environmental harm. Sometimes you'll see prosecutions. More likely, what you're going to see is an EPCO, an environmental protection compliance order. Again, that's not the kind of thing that makes the news, but we issue quite a lot of EPCOs on storage tanks, and we're trying to compel the regulatee to come into compliance and deal with those environmental issues before they cause harm.

I hope that is helpful, and we can also provide some more data.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

It was, yes. We went a little further on that, but I was interested in the information.

I want to jump a little bit ahead here.

[The Chair, Liberal, Deb Schulte]

You have 30 seconds.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Okay. I had a question last week about microbeads. Microbeads have supposedly been banned from shelves.

Can you provide some feedback on them?

[Heather McCready]

Not yet. The regulation hasn't gone to Canada Gazette II. Once the rule's in place, we can enforce it. Watch this space. Invite us back in a couple of years, and we'll be able to talk to you about that.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

When it passed through the House a year and a half ago—

[Heather McCready]

It's not there yet.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

I'll do some research. Thank you.

[The Chair, Liberal, Deb Schulte]

Mr. Eglinski.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you, Madam Chair.

I'd like to thank our witnesses today, and I'll start off with Stephen Laskowski, a good Ukrainian name.

I really like the recommendations with which you came forward. A few years back, I wrote a safety program for a major trucking company in northern B.C., and what you said was so true regarding the cancellation of the default devices. That had a big impact on the industry in those first few years we brought those trucks in.

They would break down outside of town, go into limp mode, and then you'd be so far out, you couldn't get back, because the limp mode would run out. Then there's the cost of towing. Even the manufacturers couldn't figure out what was wrong with the trucks. Oftentimes you had to hook their computers into the dealership computers, and it would take months for the truck to get repaired. I like what you put in there.

In 2012, the Conservative government put a program in place. I wonder if you remember it. It was called the ecoTECHNOLOGY program. We invested $38 million over a four- to five-year period, I believe, to help offset the costs of the new technology and equipment.

Is this program still in place, and did it work well for you folks?

[Stephen Laskowski]

The ecoTECHNOLOGY program for our members dealt primarily with the testing end of equipment. It has morphed into another program, but the short answer is yes, it definitely helped.

It is currently in existence in an altered form, and it's still helping the industry, which gets to the latter part of our recommendation with regard to testing trucking equipment to ensure that what's brought up from the United States can actually work under our climate conditions. That is part of the problem with the defeat devices. It's all linked together.

[Jim Eglinski, Conservative, Yellowhead, AB]

In speaking of the defeat devices, you mentioned something about a stronger enforcement program on them. We know that across Canada, that jurisdiction is pretty well left to the provinces, in their motor carrier departments and stuff like that, or to the RCMP or city police in those areas.

Do you know if the technology exists where a weigh scale.... Could a plug and play in a truck detect if it has been tampered with?

[Stephen Laskowski]

These devices are extremely difficult to pinpoint. OEMs have their own challenges with identifying them. That is why we believe the best solution is a duplication of the Clean Air Act in Canada under CEPA, which would allow Environment Canada the enforcement powers to go after the manufacturers, distributors, resellers, and installers.

These people are brazen. They take out full-page ads now. It is easy to find them, much easier than to identify in a truck what's going on. As I said, it's not that we are against that idea. It was part of our recommendations to be part of PMVI, but it is extremely difficult. It's far more effective to go the other route.