Bill 133, Environmental Enforcement Statute Law Amendment Act, 2005

Dombrowsky, Hon. Leona Minister of the Environment

Versions

Bill 133 2005

An Act to amend
the Environmental Protection Act
and the Ontario Water Resources Act
in respect of enforcement
and other matters

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Environmental Protection Act

Environmental Protection Act

1. (1) The definition of "contaminant" in subsection 1 (1) of the Environmental Protection Act is amended by striking out "that may cause an adverse effect" at the end and substituting "that causes or may cause an adverse effect".

(2) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 1, section 22, 1998, chapter 35, section 1, 2000, chapter 26, Schedule F, section 12, 2001, chapter 9, Schedule G, section 5, 2001, chapter 17, section 2 and 2002, chapter 17, Schedule F, Table, is amended by adding the following definition:

"environmental penalty" means a penalty imposed under section 182.1; ("pénalité environnementale")

(3) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 1, section 22, 1998, chapter 35, section 1, 2000, chapter 26, Schedule F, section 12, 2001, chapter 9, Schedule G, section 5, 2001, chapter 17, section 2 and 2002, chapter 17, Schedule F, Table, is amended by adding the following definition:

"regulated person" means,

(a) a person who belongs to a class of persons prescribed by the regulations and who holds or is required to hold,

(i) a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act, or

(ii) an approval, licence or permit under the Ontario Water Resources Act, or

(b) a corporation that belongs to a class of corporations prescribed by the regulations; ("personne réglementée")

(4) Section 7 of the Act is amended by adding the following subsection:

Contravention of s. 14

(1.1) No order shall be issued under subsection (1) as a result of a finding that a contaminant is being discharged in contravention of section 14 unless the contravention causes or is likely to cause an adverse effect.

(5) Section 14 of the Act is repealed and the following substituted:

Prohibition, discharge of contaminant

14. (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.

Exceptions

(2) Subsection (1) does not apply to,

(a) a discharge that is authorized under this Act or the Ontario Water Resources Act, if the discharge does not cause and is not likely to cause an adverse effect; or

(b) a discharge of a contaminant that arises when animal wastes are disposed of in accordance with normal farming practices, if the only adverse effect that is caused or that may be caused by the discharge is an adverse effect referred to in clause (a) of the definition of "adverse effect" in subsection 1 (1).

(6) Subsection 15 (1) of the Act is repealed and the following substituted:

When Ministry to be notified, adverse effect

(1) Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events, the discharge causes or is likely to cause an adverse effect and the person is not otherwise required to notify the Ministry under section 92.

Same

(1.1) The notice required by subsection (1) shall be given in accordance with any requirements prescribed by the regulations.

(7) Clause 17 (c) of the Act is repealed and the following substituted:

(c) where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide temporary or permanent alternate water supplies.

(8) The French version of subsection 18 (1) of the Act is amended by,

(a) striking out "d'une propriété" in the portion before paragraph 1 and substituting "d'un bien"; and

(b) striking out "de la propriété ou sur cette dernière" at the end of paragraph 4 and substituting "du bien".

(9) Paragraphs 5 and 6 of subsection 18 (1) of the Act are repealed and the following substituted:

5. To monitor and record the presence or discharge of a contaminant specified in the order and to report thereon to the Director.

6. To study and to report to the Director on,

i. the presence or discharge of a contaminant specified in the order,

ii. the effects of the presence or discharge of a contaminant specified in the order,

iii. measures to control the presence or discharge of a contaminant specified in the order,

iv. the natural environment into which a contaminant specified in the order may be discharged.

7. To develop and implement plans to,

i. reduce the amount of a contaminant that is discharged into the natural environment,

ii. prevent or reduce the risk of a spill of a pollutant within the meaning of Part X, or

iii. prevent, decrease or eliminate any adverse effects that result or may result from a spill of a pollutant within the meaning of Part X or from any other discharge of a contaminant into the natural environment, including,

A. plans to notify the Ministry, other public authorities and members of the public who may be affected by a discharge, and

B. plans to ensure that appropriate equipment, material and personnel are available to respond to a discharge.

8. To amend a plan developed under paragraph 7 or section 91.1 in the manner specified in the order.

(10) Subsection 18 (2) of the Act is repealed and the following substituted:

Grounds for order

(2) The Director may make an order under this section if the Director is of the opinion, on reasonable and probable grounds, that the requirements specified in the order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property.

(11) The French version of section 26 of the Act is amended by striking out "sa propre propriété" and substituting "son propre bien".

(12) Subsection 47 (11) of the Act is amended by striking out "an alternate supply" and substituting "a temporary or permanent alternate supply".

(13) Section 90 of the Act, as amended by the Statutes of Ontario, 1992, chapter 1, section 31, is repealed.

(14) The Act is amended by adding the following section:

Spill prevention and spill contingency plans

91.1 Every person who belongs to a class of persons prescribed by the regulations shall, in accordance with the regulations, develop and implement plans to,

(a) prevent or reduce the risk of spills of pollutants; and

(b) prevent, eliminate or ameliorate any adverse effects that result or may result from spills of pollutants, including,

(i) plans to notify the Ministry, other public authorities and members of the public who may be affected by a spill, and

(ii) plans to ensure that appropriate equipment, material and personnel are available to respond to a spill.

(15) Subsection 92 (1) of the Act, as amended by the Statutes of Ontario, 2002, chapter 17, Schedule F, Table, is amended by striking out "that causes or is likely to cause an adverse effect" in the portion before clause (a).

(16) Subsection 92 (2) of the Act is amended by striking out "and is causing or is likely to cause an adverse effect" at the end.

(17) Section 92 of the Act, as amended by the Statutes of Ontario, 2002, chapter 17, Schedule F, Table, is amended by adding the following subsection:

Same

(5) The notices required by subsections (1) and (4) shall be given in accordance with any requirements prescribed by the regulations.

(18) Subsection 95 (1) of the Act is amended by striking out "any duty imposed or order or direction made or given under this Part" in the portion before clause (a) and substituting "the duty imposed by section 93 or an order or direction made or given under this Part".

(19) The Act is amended by adding the following section:

Director's order for costs and expenses

99.1 (1) If a pollutant is spilled, the Director may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the Minister of Finance any reasonable costs or expenses incurred by Her Majesty in right of Ontario for the following purposes:

1. To prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.

2. To prevent or reduce the risk of future discharges into the natural environment of any pollutant owned by or under the charge, management or control of the person against whom the order is made.

Same

(2) If an order to pay costs or expenses is issued under subsection (1) to a receiver or trustee in bankruptcy, the receiver or trustee in bankruptcy is not personally liable for those costs or expenses unless the spill arose from the gross negligence or wilful misconduct of the receiver or trustee in bankruptcy or of a receiver representative or trustee in bankruptcy representative.

Contents

(3) An order under subsection (1) shall include,

(a) a statement identifying the spill to which the order relates;

(b) a description of things for which Her Majesty in right of Ontario incurred costs or expenses for a purpose referred to in subsection (1);

(d) a direction that the person to whom the order is issued pay the costs and expenses to the Minister of Finance.

Application of ss. 153 and 155

(4) Sections 153 and 155 apply, with necessary modifications, in respect of an order under subsection (1).

Joint and several liability

(5) Where two or more persons are liable to pay costs or expenses pursuant to an order under subsection (1), they are jointly and severally liable to Her Majesty in right of Ontario.

Contribution and indemnity

(6) Where the Director is entitled to issue an order to two or more persons under subsection (1) in respect of costs or expenses, as between themselves, in the absence of an express or implied contract, each of those persons is liable to make contribution to and indemnify the other in accordance with the following principles:

1. Where the Director is entitled to issue an order to two or more persons under subsection (1) in respect of costs or expenses and one or more of them caused or contributed to the costs or expenses by fault or negligence, such one or more of them shall make contribution to and indemnify,

i. where one person is found at fault or negligent, any other person to whom the Director is entitled to issue an order under subsection (1), and

ii. where two or more persons are found at fault or negligent, each other and any other person to whom the Director is entitled to issue an order under subsection (1) in the degree in which each of such two or more persons caused or contributed to the costs or expenses by fault or negligence.

2. For the purpose of subparagraph 1 ii, if it is not practicable to determine the respective degrees in which the fault or negligence of two or more persons to whom the Director is entitled to issue an order under subsection (1) caused or contributed to the costs or expenses, such two or more persons shall be deemed to be equally at fault or negligent.

3. Where no person to whom the Director is entitled to issue an order under subsection (1) caused or contributed to the costs or expenses by fault or negligence, each of the persons to whom the Director is entitled to issue an order under subsection (1) is liable to make contribution to and indemnify each other in such degree as is determined to be just and equitable in the circumstances.

Enforcement of contribution

(7) The right to contribution or indemnification under subsection (6) may be enforced by action in a court of competent jurisdiction.

Adding parties

(8) Wherever it appears that a person not already a party to an action under subsection (7) may be a person to whom the Director is entitled to issue an order under subsection (1) in respect of the costs or expenses, the person may be added as a party defendant to the action on such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.

(20) Subsection 100 (1) of the Act, as amended by the Statutes of Ontario, 2002, chapter 17, Schedule F, Table, is amended by,

(a) striking out "and causes or is likely to cause an adverse effect" at the end of the portion before clause (a); and

(b) striking out "ameliorate the adverse effects" and substituting "ameliorate any adverse effects" in the portion after clause (c).

(21) The Act is amended by adding the following section:

Municipality's order for costs and expenses

100.1 (1) If a pollutant is spilled, a municipality may issue an order requiring the owner of the pollutant or the person having control of the pollutant to pay to the municipality any reasonable costs or expenses incurred by the municipality, or a local board of the municipality within the meaning of the Municipal Affairs Act, to prevent, eliminate or ameliorate any adverse effects or to restore the natural environment.

Same

(2) If an order to pay costs or expenses is issued under subsection (1) to a receiver or trustee in bankruptcy, the receiver or trustee in bankruptcy is not personally liable for those costs unless the spill arose from the gross negligence or wilful misconduct of the receiver or trustee in bankruptcy or of a receiver representative or trustee in bankruptcy representative.

Contents

(3) An order under subsection (1) shall include,

(a) a statement identifying the spill to which the order relates;

(b) a description of things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1);

(d) a direction that the person to whom the order is issued pay the costs and expenses to the municipality.

Application of s. 153

(4) Section 153 applies, with necessary modifications, in respect of an order under subsection (1).

Lien

(5) If a municipality issues an order under subsection (1) against a person who owns real property in the municipality and the pollutant was spilled on that property, the municipality shall have a lien on the property for the amount specified in the order and that amount shall have priority lien status, as described in section 1 of the Municipal Act, 2001.

Contribution and indemnity

(6) Subsections 99.1 (5) to (8) apply, with necessary modifications, in respect of orders issued by a municipality under subsection (1) and, for that purpose, a reference in those subsections to Her Majesty in right of Ontario shall be deemed to be a reference to the municipality.

Appeals

(7) A person to whom an order of a municipality is directed under subsection (1) may, by written notice served on the municipality and the Tribunal within 15 days after service on the person of a copy of the order, require a hearing by the Tribunal.

Extension of time for requiring hearing

(8) The Tribunal shall extend the time in which a person may give a notice under subsection (7) requiring a hearing if, in the Tribunal's opinion, it is just to do so because service of the order on the person did not give the person notice of the order.

Contents of notice requiring hearing

(9) A person who gives a notice under subsection (7) shall state in the notice,

(a) the portions of the order in respect of which the hearing is required; and

(b) the grounds on which the person intends to rely at the hearing.

Effect of contents of notice

(10) Except with leave of the Tribunal, at a hearing by the Tribunal, the person who required the hearing under subsection (7) is not entitled to appeal a portion of the order, or to rely on a ground, that is not stated in the person's notice requiring the hearing.

Leave by Tribunal

(11) The Tribunal may grant the leave referred to in subsection (10) if the Tribunal is of the opinion that to do so is proper in the circumstances, and the Tribunal may give such directions as the Tribunal considers proper consequent on the granting of the leave.

Automatic stay on appeal

(12) The commencement of a proceeding before the Tribunal stays the operation of the order made under subsection (1).

Parties to hearing

(13) The person requiring the hearing, the municipality and any other person specified by the Tribunal are parties to the hearing.

Costs may be increased

(14) At a hearing by the Tribunal under this section, the municipality may, on reasonable notice to all parties, ask the Tribunal to amend the order by adding new costs or expenses or by increasing the amounts set out in the order.

What Tribunal may consider

(15) At a hearing by the Tribunal under this section, the Tribunal shall consider only,

(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,

(i) the owner of the thing that was discharged,

(ii) the person having charge, management or control of the thing that was discharged, or

(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or

(b) whether any of the costs or expenses specified in the order,

(i) do not relate to things for which the municipality or local board incurred costs or expenses for a purpose referred to in subsection (1), or

(ii) are unreasonable having regard to what was done.

Appeals from Tribunal

(16) Any party to a hearing before the Tribunal under this section may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.

Appeal to Minister

(17) A party to a hearing before the Tribunal under this section may, within 30 days after receipt of the decision of the Tribunal or within 30 days after final disposition of an appeal, if any, under subsection (16), appeal in writing to the Minister on any matter other than a question of law and the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.

Decision of Tribunal not automatically stayed on appeal

(18) An appeal of a decision of the Tribunal to the Divisional Court or to the Minister under this section does not stay the operation of the decision, unless the Tribunal orders otherwise.

Divisional Court or Minister may grant or set aside stay

(19) If a decision of the Tribunal is appealed to the Divisional Court or to the Minister under this section, the Divisional Court or the Minister may,

(a) stay the operation of the decision; or

(b) set aside a stay ordered by the Tribunal under subsection (18).

(22) Clause 132 (1) (b) of the Act is amended by striking out "alternate water supplies" and substituting "temporary or permanent alternate water supplies".

(23) Clause 132 (1.1) (b) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "alternate water supplies" and substituting "temporary or permanent alternate water supplies".

(24) Subsection 143 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is repealed and the following substituted:

No automatic stay on appeal

(1) The commencement of a proceeding before the Tribunal under this Part does not stay the operation of a decision or order made under this Act, other than,

(a) an order to pay costs and expenses under section 99.1;

(b) an order to pay the costs of work made under section 150; or

(25) Section 144 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is repealed.

(26) Part XIII of the Act is amended by adding the following sections:

Costs specified in order to pay may be increased by Tribunal

145.1 At a hearing by the Tribunal under this Part on an order to pay costs or expenses under section 99.1 or 150, the Director may, on reasonable notice to all parties, ask the Tribunal to amend the order by adding new costs or expenses or by increasing the amounts set out in the order.

Powers of Tribunal

145.2 Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

What Tribunal may consider at hearing to pay costs

145.3 (1) At a hearing by the Tribunal on an order under subsection 99.1 (1) to a person to pay the costs and expenses of doing things, the Tribunal shall consider only,

(a) whether the person to whom the order was directed was, immediately before the discharge into the natural environment,

(i) the owner of the thing that was discharged,

(ii) the person having charge, management or control of the thing that was discharged, or

(iii) the employee or agent of the person having charge, management or control of the thing that was discharged; or

(b) whether any of the costs or expenses specified in the order,

(i) do not relate to things for which Her Majesty in right of Ontario incurred costs or expenses for a purpose referred to in subsection 99.1 (1), or

(ii) are unreasonable having regard to what was done.

Same

(2) At a hearing by the Tribunal on an order under subsection 150 (1) or (2.1) to a person to pay the costs of doing things, the Tribunal shall consider only whether any of the costs specified in the order,

(a) do not relate to a thing that the person was required to do by an order or decision made under this Act, as amended by any Tribunal decision or on any appeal from a Tribunal decision; or

(b) are unreasonable having regard to what was done.

Same, receiver or trustee in bankruptcy

(3) For the purpose of subsection (2), if the order under subsection 150 (1) or (2.1) was issued to a receiver or trustee in bankruptcy,

(a) the receiver or trustee in bankruptcy shall be deemed to have been required to do any thing that was required to be done by the person whose property the receiver or trustee in bankruptcy holds or administers; and

(b) the receiver or trustee in bankruptcy shall be deemed to have been required to do a thing that, pursuant to subsection 19 (5) or 168.20 (7), the receiver or trustee in bankruptcy was not required to do.

(27) Part XIII of the Act is amended by adding the following sections:

Amount of environmental penalties

145.4 (1) For greater certainty, if a hearing by the Tribunal is required under section 140 in respect of an order to pay an environmental penalty, the regulations made under clause 182.1 (15) (d) governing the determination of the amounts of environmental penalties apply to the Tribunal.

Same

(2) Subject to subsection (1), if a hearing by the Tribunal is required under section 140 in respect of an order to pay an environmental penalty, the Tribunal shall not substitute its opinion for that of the Director with respect to the amount of the penalty unless the Tribunal considers the amount to be unreasonable.

Onus for certain proceedings that relate to discharges

145.5 (1) This section applies to a hearing by the Tribunal under this Part if,

(a) the hearing was required by a regulated person;

(b) the order that is the subject of the hearing is,

(i) an order made under subsection 182.1 (1), or

(ii) an order made under section 157, an order made under section 157.2 that amends an order made under section 157, or an order made under section 157.3 that confirms or alters an order made under section 157, unless the contravention in respect of which the order is made is prescribed by the regulations made under section 182.1 as a contravention in respect of which an order may not be issued under subsection 182.1 (1); and

Contraventions of s. 14

(2) If this section applies to a hearing and the order that is the subject of the hearing relates to a contravention of section 14, the person who required the hearing has the onus of proving that the discharge of the contaminant into the natural environment did not cause and could not have caused an adverse effect.

Contraventions of s. 93

(3) If this section applies to a hearing and the order that is the subject of the hearing relates to a contravention of section 93, the person who required the hearing has the onus of proving that,

(a) the discharge of the pollutant was not abnormal in quality or quantity in light of all the circumstances of the discharge;

(b) the pollutant that was spilled did not cause and was not likely to cause an adverse effect; or

(c) forthwith after the pollutant was spilled, the person did everything practicable to prevent, eliminate and ameliorate the adverse effect and to restore the natural environment.

Contraventions of other discharge provisions

(4) If this section applies to a hearing and the order that is the subject of the hearing relates to a discharge into the natural environment in contravention of a provision referred to in subclause 182.1 (1) (a) (iii), (iv) or (v), the person who required the hearing has the onus of proving that the person did not contravene the provision.

(28) Part XIII of the Act is amended by adding the following section:

Appeals from Tribunal

145.6 (1) Any party to a hearing before the Tribunal under this Part may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.

Appeal to Minister

(2) A party to a hearing before the Tribunal under this Part may, within 30 days after receipt of the decision of the Tribunal or within 30 days after final disposition of an appeal, if any, under subsection (1), appeal in writing to the Minister on any matter other than a question of law and the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.

Decision of Tribunal not automatically stayed on appeal

(3) An appeal of a decision of the Tribunal to the Divisional Court or to the Minister under this section does not stay the operation of the decision, unless the Tribunal orders otherwise.

Divisional Court or Minister may grant or set aside stay

(4) If a decision of the Tribunal is appealed to the Divisional Court or to the Minister under this section, the Divisional Court or the Minister may,

(a) stay the operation of the decision; or

(b) set aside a stay ordered by the Tribunal under subsection (3).

(29) Section 150 of the Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule G, section 5 and 2001, chapter 17, section 2, is amended by adding the following subsections:

Joint and several liability

(5) Where two or more persons are liable to pay costs pursuant to an order under subsection (1), (2) or (2.1), they are jointly and severally liable to Her Majesty in right of Ontario.

Contribution and indemnity

(6) Where the Director is entitled to issue an order to two or more persons under subsection (1), (2) or (2.1) in respect of costs, as between themselves, in the absence of an express or implied contract, each of those persons is liable to make contribution to and indemnify the other in accordance with the following principles:

1. Where the Director is entitled to issue an order to two or more persons under subsection (1), (2) or (2.1) in respect of costs and one or more of them caused or contributed to the costs by fault or negligence, such one or more of them shall make contribution to and indemnify,

i. where one person is found at fault or negligent, any other person to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1), and

ii. where two or more persons are found at fault or negligent, each other and any other person to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) in the degree in which each of such two or more persons caused or contributed to the costs by fault or negligence.

2. For the purpose of subparagraph 1 ii, if it is not practicable to determine the respective degrees in which the fault or negligence of two or more persons to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) caused or contributed to the costs, such two or more persons shall be deemed to be equally at fault or negligent.

3. Where no person to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) caused or contributed to the costs by fault or negligence, each of the persons to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) is liable to make contribution to and indemnify each other in such degree as is determined to be just and equitable in the circumstances.

Enforcement of contribution

(7) The right to contribution or indemnification under subsection (6) may be enforced by action in a court of competent jurisdiction.

Adding parties

(8) Wherever it appears that a person not already a party to an action under subsection (7) may be a person to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) in respect of the costs, the person may be added as a party defendant to the action on such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties.

(30) Section 151 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12, is repealed.

(31) Section 152 of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 12 and 2001, chapter 17, section 2, is repealed.

(32) Clause 156 (1) (b) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 14, is repealed and the following substituted:

(b) entering any place in which the provincial officer reasonably believes can be found anything that is governed or regulated under this Act or anything the dealing with which is governed or regulated under this Act;

(33) Clause 156 (1) (k) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 14, is repealed and the following substituted:

(k) entering any place where a pollutant as defined in Part X is spilled.

(34) Clause 157 (1) (b) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 16, is repealed and the following substituted:

(b) a provision of an order under this Act, other than an order under section 99.1, 100.1, 150 or 182.1 or an order of a court; or

(35) Section 157 of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 16 and amended by 2001, chapter 17, section 2, is amended by adding the following subsection:

Contravention of s. 14

(1.1) Subsection (1) does not apply to a contravention of section 14 unless,

(a) an order to pay an environmental penalty could be issued in respect of the contravention; or

(b) the contravention involves a discharge that causes or is likely to cause an adverse effect.

(36) Subsection 157 (2) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 16, is amended by striking out "and" at the end of clause (b) and by adding the following clause:

(b.1) in the case of a contravention of section 14 for which an order to pay an environmental penalty could be issued, describe the adverse effects that were caused by or that may be caused by the contravention; and

(37) Clause 157 (3) (f) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 16, is repealed and the following substituted:

(f) where the contravention has caused damage to or endangered or is likely to cause damage to or endanger existing water supplies, providing temporary or permanent alternate water supplies;

(38) Subsection 157.1 (1) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 16, is repealed and the following substituted:

Order by provincial officer re preventive measures

(1) A provincial officer may issue an order to any person who owns or who has management or control of an undertaking or property if the provincial officer reasonably believes that the requirements specified in the order are necessary or advisable so as,

(a) to prevent or reduce the risk of a discharge of a contaminant into the natural environment from the undertaking or property; or

(b) to prevent, decrease or eliminate an adverse effect that may result from,

(i) the discharge of a contaminant from the undertaking, or

(ii) the presence or discharge of a contaminant in, on or under the property.

(39) Subsection 157.3 (9) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 16 and amended by 2000, chapter 26, Schedule F, section 12, is amended by striking out "For the purpose of an appeal to the Tribunal" at the beginning and substituting "For the purpose of section 140 and a hearing required under that section".

(40) Section 157.3 of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 16 and amended by 2000, chapter 26, Schedule F, section 12, is amended by adding the following subsection:

Same

(10) Subsections (8) and (9) do not apply if, within seven days of receiving the request for review, the Director stays the order under subsection (4) and gives written notice to the person requesting the review that the Director requires additional time to make a decision under subsection (5).

(41) Clause 162.3 (6) (a) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 23, is repealed and the following substituted:

(a) has been served with an order requiring the person to pay an environmental penalty in connection with a matter that was associated with the seizure of the thing, unless the order has been revoked; or

(42) The French version of section 164 of the Act is amended by striking out "la propriété en l'état où elle" and substituting "le bien en l'état où il".

(43) Paragraph 4 of subsection 168.8 (3) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "alternate water supplies" at the end and substituting "temporary or permanent alternate water supplies".

(44) The French version of clause 168.12 (1) (d) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "d'une propriété" and substituting "d'un bien".

(45) Paragraph 4 of subsection 168.14 (4) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "alternate water supplies" at the end and substituting "temporary or permanent alternate water supplies".

(46) The French version of clause 168.17 (1) (d) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "d'une propriété" and substituting "d'un bien".

(47) Paragraph 4 of subsection 168.20 (5) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "alternate water supplies" at the end and substituting "temporary or permanent alternate water supplies".

(48) The French version of clause 168.26 (d) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "d'une propriété" and substituting "d'un bien".

(49) Subsection 176 (1) of the Act, as amended by the Statutes of Ontario, 1997, chapter 7, section 4 and 2001, chapter 17, section 2, is amended by adding the following clause:

(w) governing payments out of the account referred to in section 182.2, including governing the circumstances in which payments may be made, governing the amounts of payments and governing procedures for determining what payments are made;

(50) Subsection 176 (1) of the Act, as amended by the Statutes of Ontario, 1997, chapter 7, section 4 and 2001, chapter 17, section 2, is amended by adding the following clause:

(x) governing the development and implementation of plans required under paragraph 7 of subsection 18 (1) or section 91.1, including,

(i) regulations requiring procedures to be followed, including procedures involving public consultation,

(ii) regulations establishing time limits related to the development and implementation of the plans,

(iii) regulations governing the contents of the plans, including requirements for provisions relating to updating the plans and testing compliance with the plans.

(51) Clause 176 (8) (d) of the Act, as amended by the Statutes of Ontario, 2001, chapter 17, section 2, is amended by striking out "but no discharge of pollutant or location of discharge shall be designated" and substituting "but no discharge of pollutant shall be designated".

(52) Section 182.1 of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 34 and amended by 2000, chapter 22, section 1, 2000, chapter 26, Schedule F, section 12, 2001, chapter 9, Schedule G, section 5 and 2001, chapter 17, section 2, is repealed and the following substituted:

Environmental penalties

182.1 (1) Subject to the regulations, the Director may issue an order requiring a regulated person to pay a penalty if,

(a) the regulated person contravenes,

(i) section 14,

(ii) section 93,

(iii) a provision of the regulations that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment,

(iv) a provision of an order under this Act that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment, or

(v) a provision of a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment; or

(b) the regulated person contravenes a provision, other than a provision referred to in clause (a), of,

(i) this Act or the regulations,

(ii) an order under this Act, other than an order under section 99.1, 100.1 or 150 or an order of a court,

(iii) a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act,

(iv) a report under section 29, or

(v) an agreement under subsection (9).

Exceptions

(2) Subsection (1) does not apply to,

(a) a contravention of section 14, if,

(i) neither this Act nor the Ontario Water Resources Act requires the regulated person to notify the Ministry of the discharge to which the contravention relates, or

(ii) the discharge to which the contravention relates was authorized under this Act or the Ontario Water Resources Act; or

(b) a contravention of section 184.

Contents of order

(3) The order shall be served on the person who is required to pay the penalty and shall,

(a) contain a description of the contravention to which the order relates, including, where appropriate, the date and location of the contravention;

(b) in the case of a contravention of section 14, contain a description of the adverse effects that were caused by or that may be caused by the contravention;

(d) give particulars respecting the time for paying the penalty and the manner of payment; and

(e) provide information to the person as to the person's rights under section 140.

Amount

(4) The amount of the penalty shall be determined in accordance with the regulations.

Maximum penalty

(5) The amount of the penalty shall not exceed $100,000 for each day or part of a day on which the contravention occurred or continued.

Absolute liability

(6) A requirement that a person pay an environmental penalty applies even if,

(a) the person took all reasonable steps to prevent the contravention; or

(b) at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention innocent.

Same

(7) For greater certainty, nothing in subsection (6) affects the prosecution of an offence.

Limitation

(8) An order requiring payment of an environmental penalty shall be served not later than the first anniversary of the later of the following dates:

1. The date the contravention occurred.

2. The date on which the evidence of the contravention first came to the attention of the Director or a provincial officer.

Agreements

(9) The Director and a person against whom an order may be or has been made under subsection (1) may enter into an agreement that,

(a) identifies the contravention in respect of which the order may be or has been made;

(b) requires the person against whom the order may be or has been made to take steps specified in the agreement within the time specified in the agreement; and

(c) provides that the obligation to pay the penalty may be cancelled in accordance with the regulations or the amount of the penalty may be reduced in accordance with the regulations.

Publication of agreements

(10) The Ministry shall publish every agreement entered into under subsection (9) in the environmental registry established under section 5 of the Environmental Bill of Rights, 1993.

Penalty does not prevent prosecution

(11) A person may be charged, prosecuted and convicted of an offence under this Act in respect of a contravention referred to in subsection (1) even if an environmental penalty has been imposed on or paid by the person or another person in respect of the contravention.

No admission

(12) If a person pays a penalty imposed under subsection (1) in respect of a contravention or enters into an agreement under subsection (9) in respect of a contravention, the payment or entering into of the agreement is not, for the purposes of any prosecution in respect of the contravention, an admission that the person committed the contravention.

Failure to pay when required

(13) If a person who is required to pay an environmental penalty fails to comply with the requirement,

(a) the order or decision that requires the payment may be filed with a local registrar of the Superior Court of Justice and may be enforced as if it were an order of the court;

(b) the Director may by order suspend any certificate of approval, provisional certificate of approval, licence or permit that has been issued to the person under this Act until the environmental penalty is paid; and

(c) the Director may refuse to issue any certificate of approval, provisional certificate of approval, licence or permit to the person under this Act until the environmental penalty is paid.

Same

(14) Section 129 of the Courts of Justice Act applies in respect of an order or decision filed with the Superior Court of Justice under subsection (13) and, for that purpose, the date on which the order or decision is filed under subsection (13) shall be deemed to be the date of the order that is referred to in section 129 of the Courts of Justice Act.

Regulations

(15) The Lieutenant Governor in Council may make regulations,

(a) specifying the form and content of orders under subsection (1);

(b) specifying types of contraventions or circumstances in respect of which an order may not be issued under subsection (1);

(c) requiring and governing public consultation before an agreement is entered into under subsection (9) and, subject to that subsection and to any regulations made under subclause (d) (iv), governing the contents of agreements under that subsection;

(d) governing the determination of the amounts of environmental penalties, including,

(i) prescribing criteria to be considered in the exercise of any discretion,

(ii) providing that the total amount of the penalty for a contravention that occurs or continues for more than one day not exceed a maximum prescribed by the regulations,

(iii) providing for different amounts depending on when an environmental penalty is paid,

(iv) with respect to agreements under subsection (9), governing the cancellation of the obligation to pay an environmental penalty or the reduction of the amount of an environmental penalty;

(e) prescribing circumstances in which a person is not required to pay an environmental penalty;

(f) prescribing procedures related to environmental penalties;

(g) respecting any other matter necessary for the administration of a system of penalties provided for by this section.

General or particular

(16) A regulation under subsection (15) may be general or particular in its application.

Regulations governing determination of amounts

(17) The regulations made under clause (15) (d) must, with respect to a contravention referred to in clause (1) (a), provide for the following matters:

1. The person who is required to pay the penalty must be entitled,

i. to seek and obtain a reduction in the amount of the penalty if the person took steps prescribed by the regulations to prevent the contravention in respect of which the penalty is imposed, and

ii. to seek and obtain a reduction in the amount of the penalty if the person took steps prescribed by the regulations to mitigate the effects of the contravention in respect of which the penalty is imposed.

2. The determination of the amount of the penalty must take into account factors prescribed by the regulations that relate to the seriousness of the contravention in respect of which the penalty is imposed.

3. If the Director is of the opinion that, as a result of the contravention in respect of which the penalty is imposed, a monetary benefit prescribed by the regulations was acquired by the person who is required to pay the penalty, the amount of the benefit must be considered in determining the amount of the penalty.

Environmental management systems

(18) The regulations made under clause (15) (d) must provide for a reduction in the amount of an environmental penalty if, at the time the contravention to which the penalty relates occurred, the person who is required to pay the penalty had in place an environmental management system specified by the regulations.

Annual report

(19) The Minister shall, not later than March 31 in each year, publish a report that sets out the following information for each contravention in respect of which an order was made under this section during the previous year:

1. The name of the person against whom the order was made.

2. The amount of the penalty.

3. A description of the contravention.

4. An indication of whether an agreement was entered into under subsection (9) in respect of the order and, if an agreement was entered into, the effect of the agreement on the obligation to pay the penalty or on the amount of the penalty.

Five-year review

(20) At least once every five years, the Minister shall cause a report to be prepared and published on the operation of this section, including the effect of this section on prosecutions under this Act and including recommendations on the contraventions to which and circumstances in which orders should be issued under subsection (1).

Application

(21) This section does not apply to contraventions that occurred before this section came into force.

(53) The Act is amended by adding the following section:

Special purpose account

182.2 (1) Environmental penalties paid under this Act shall be deposited in a separate account in the Consolidated Revenue Fund.

Same

(2) For the purpose of the Financial Administration Act, money deposited in the account referred to in subsection (1) shall be deemed to be money paid to Ontario for a special purpose.

Payments out of account

(3) Subject to the regulations, if money is deposited in the account referred to in subsection (1), the Minister of the Environment may direct that money be paid out of the account for the following purposes:

1. To compensate persons or bodies who incurred costs or expenses or suffered other losses as a result of a spill of a pollutant within the meaning of Part X, including providing funds for making compensation payments under section 101.

2. To provide financial assistance to persons or bodies who undertake environmental remediation projects.

3. Such other purposes as are prescribed by the regulations.

(54) Section 186 of the Act, as amended by the Statutes of Ontario, 1998, chapter 35, section 36, 2001, chapter 9, Schedule G, section 5 and 2001, chapter 17, section 2, is amended by adding the following subsection:

Exception

(1.1) Subsection (1) does not apply to a contravention of section 14 unless the contravention causes or is likely to cause an adverse effect.

(55) Subsection 186 (2) of the Act is amended by striking out "under section 150" and substituting "under section 99.1, 100.1, 150 or 182.1".

(56) Subsection 186 (5) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 36, is amended by striking out "an administrative penalty under section 182.1" at the end and substituting "an environmental penalty".

(57) Section 187 of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 37 and amended by 2000, chapter 22, section 1 and 2001, chapter 9, Schedule G, section 5, is repealed and the following substituted:

Penalties

187. (1) Every individual convicted of an offence under section 186, other than an offence described in subsection (3), is liable,

(a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $50,000; and

(b) on each subsequent conviction,

(i) for each day or part of a day on which the offence occurs or continues, to a fine of not more than $100,000,

(ii) to imprisonment for a term of not more than one year, or

(iii) to both such fine and imprisonment.

Same: corporations

(2) Every corporation convicted of an offence under section 186, other than an offence described in subsection (3), is liable,

(a) on a first conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $250,000; and

(b) on each subsequent conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $500,000.

Application of subss. (4) and (5)

(3) Subsections (4) and (5) apply to the following offences:

1. An offence under subsection 186 (1) of,

i. contravening section 14 or 15,

ii. contravening section 27, 40 or 41 in respect of hauled liquid industrial waste or hazardous waste as designated in the regulations relating to Part V,

iii. contravening section 92 or 184, or

iv. contravening a provision of the regulations that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment.

2. An offence under subsection 186 (2) of failing to comply with an order under this Act that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment.

3. An offence under subsection 186 (3) of failing to comply with a term or condition of a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act, or a report under section 29, that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment.

4. An offence under subsection 194 (2) that relates to a contravention or failure to comply referred to in paragraph 1, 2 or 3.

Certain offences: corporations

(4) Every corporation convicted of an offence described in subsection (3) is liable, for each day or part of a day on which the offence occurs or continues, to a fine of,

(a) not less than $25,000 and not more than $6,000,000 on a first conviction;

(b) not less than $50,000 and not more than $10,000,000 on a second conviction; and

Certain offences: individuals

(5) Every individual convicted of an offence described in subsection (3) is liable,

(a) for each day or part of a day on which the offence occurs or continues, to a fine of,

(i) not less than $5,000 and not more than $4,000,000 on a first conviction,

(ii) not less than $10,000 and not more than $6,000,000 on a second conviction, and

(iii) not less than $20,000 and not more than $6,000,000 on each subsequent conviction;

(b) to imprisonment for a term of not more than five years less one day; or

(58) Section 188 of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 38 and amended by 2002, chapter 4, section 62, is amended by striking out the portion before clause (a) and substituting the following:

Number of convictions

188. In determining the number of a person's previous convictions for the purpose of section 187, the court shall include previous convictions of the person under,

. . . . .

(59) The Act is amended by adding the following section:

Sentencing considerations

188.1 (1) Subject to subsection (3), in determining a penalty under section 187, the court shall consider each of the following circumstances to be aggravating factors:

1. The offence caused an adverse effect.

2. The defendant committed the offence intentionally or recklessly.

3. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.

4. The defendant committed the offence despite having been warned by the Ministry of circumstances that subsequently became the subject of the offence.

5. After the commission of the offence, the defendant,

i. attempted to conceal the commission of the offence from the Ministry or other public authorities,

ii. failed to co-operate with the Ministry or other public authorities,

iii. failed to take prompt action to mitigate the effects of the offence, including action to compensate persons for loss or damage that resulted from the commission of the offence, or

iv. failed to take prompt action to reduce the risk of similar offences being committed in the future.

6. The defendant previously contravened legislation of Ontario or another jurisdiction that is intended to prevent or minimize harm to the natural environment.

7. Any other circumstance that is prescribed by the regulations as an aggravating factor.

Severity of penalty

(2) Subject to subsection (3), the severity of a penalty under section 187 shall reflect the number of aggravating factors that apply under subsection (1) and the seriousness of the particular circumstances of each of those aggravating factors.

Reasons

(3) If the court decides that an aggravating factor that applies under subsection (1) does not warrant a more severe penalty, the court shall give reasons for that decision.

Compliance with order not a mitigating factor

(4) Subject to subsection (5), in determining a penalty under section 187, the court shall not consider compliance with an order issued under this Act in response to the offence to be a mitigating factor.

Reasons

(5) If the court decides that compliance with an order issued under this Act in response to the offence warrants a less severe penalty, the court shall give reasons for that decision.

Environmental penalty

(6) If an order is made requiring a person to pay an environmental penalty in respect of a contravention and the person is also convicted of an offence in respect of the same contravention, the court, in determining a penalty under section 187, shall consider the order to pay the environmental penalty to be a mitigating factor and, if subsection 187 (4) or (5) applies, may impose a fine of less than the minimum fine provided for in that subsection.

(60) Clause 190 (1) (a) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 39, is amended by striking out "an alternate water supply" and substituting "a temporary or permanent alternate water supply".

(61) Clause 190 (1) (c) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 39, is amended by striking out "any order that the Director has issued" and substituting "any order issued under this Act".

(62) Subsection 190.1 (3) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 40, is amended by striking out "an alternate water supply" and substituting "a temporary or permanent alternate water supply".

(63) Clause 190.1 (5) (b) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 40, is repealed and the following substituted:

(b) a contravention in respect of which an order has been served on the person requiring the person to pay an environmental penalty, unless the order has been revoked.

(64) Clause 190.2 (6) (a) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 40, is repealed and the following substituted:

(65) Subsection 194 (1) of the Act is repealed and the following substituted:

Duty of director or officer

(1) Every director or officer of a corporation has a duty to take all reasonable care to prevent the corporation from,

(a) discharging or causing or permitting the discharge of a contaminant, in contravention of,

(i) this Act or the regulations, or

(ii) a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act;

(b) failing to notify the Ministry of a discharge of a contaminant, in contravention of,

(i) this Act or the regulations, or

(ii) a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act;

(c) contravening section 27, 40 or 41 in respect of hauled liquid industrial waste or hazardous waste as designated in the regulations relating to Part V,

(d) contravening section 93 or 184;

(e) failing to install, maintain, operate, replace or alter any equipment or other thing, in contravention of a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under this Act; or

(f) contravening an order under this Act, other than an order under section 99.1, 100.1, 150 or 182.1.

Contraventions of s. 14

(1.1) Clause (1) (a) does not apply to a contravention of section 14 unless the contravention causes or is likely to cause an adverse effect.

(66) Section 194 of the Act is amended by adding the following subsection:

Onus

(2.1) If a director or officer of a corporation is charged with an offence under subsection (2) in connection with a specific contravention of the corporation, the director or officer has the onus, in the trial of the offence, of proving that he or she carried out the duty under subsection (1) in connection with that contravention.

Ontario Water Resources Act

Ontario Water Resources Act

2. (1) Subsection 1 (1) of the Ontario Water Resources Act, as amended by the Statutes of Ontario, 1992, chapter 23, section 39, 1993, chapter 23, section 73, 1998, chapter 35, section 44, 2000, chapter 22, section 2, 2000, chapter 26, Schedule E, section 5, 2000, chapter 26, Schedule F, section 13, 2001, chapter 9, Schedule G, section 6, 2001, chapter 17, section 5 and 2002, chapter 17, Schedule F, Table, is amended by adding the following definition:

"environmental penalty" means a penalty imposed under section 106.1; ("pénalité environnementale")

(2) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1992, chapter 23, section 39, 1993, chapter 23, section 73, 1998, chapter 35, section 44, 2000, chapter 22, section 2, 2000, chapter 26, Schedule E, section 5, 2000, chapter 26, Schedule F, section 13, 2001, chapter 9, Schedule G, section 6, 2001, chapter 17, section 5 and 2002, chapter 17, Schedule F, Table, is amended by adding the following definition:

"regulated person" means,

(a) a person who belongs to a class of persons prescribed by the regulations and who holds or is required to hold,

(i) an approval, licence or permit under this Act, or

(ii) a certificate of approval, provisional certificate of approval, certificate of property use, licence or permit under the Environmental Protection Act, or

(b) a corporation that belongs to a class of corporations prescribed by the regulations; ("personne réglementée")

(3) Section 1 of the Act, as amended by the Statutes of Ontario, 1992, chapter 23, section 39, 1993, chapter 23, section 73, 1998, chapter 35, section 44, 2000, chapter 22, section 2, 2000, chapter 26, Schedule E, section 5, 2000, chapter 26, Schedule F, section 13, 2001, chapter 9, Schedule G, section 6, 2001, chapter 17, section 5 and 2002, chapter 17, Schedule F, Table, is amended by adding the following subsections:

Deemed impairment

(3) For the purposes of this Act, the quality of water shall be deemed to be impaired by the discharge of material if the material or a derivative of the material enters or may enter the water, directly or indirectly, and,

(a) the material or derivative causes or may cause injury to or interference with any living organism that lives in or comes into contact with,

(i) the water, or

(ii) soil or sediment that is in contact with the water;

(b) the material or derivative causes or may cause injury to or interference with any living organism as a result of it using or consuming,

(i) the water,

(ii) soil or sediment that is in contact with the water, or

(iii) any organism that lives in or comes into contact with the water or soil or sediment that is in contact with the water;

(d) a scientific test that is generally accepted as a test of aquatic toxicity indicates that the material or derivative, in diluted or undiluted form, is toxic;

(e) peer-reviewed scientific publications indicate that the material or derivative causes injury to or interference with organisms that are dependent on aquatic ecosystems; or

(f) the material or derivative has a prescribed characteristic or is a prescribed material.

Same

(4) For the purposes of this Act, water shall be deemed to be impaired if the quality of the water is deemed to be impaired.

Same

(5) Subsections (3) and (4) apply to all water, including the water of any water, watercourse or other waters.

(4) Subsection 15 (1) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 47, is amended by adding the following clause:

(c.1) entering any place in which the provincial officer reasonably believes can be found anything that is governed or regulated under this Act or anything the dealing with which is governed or regulated under this Act;

(5) Clause 16 (1) (b) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 49, is repealed and the following substituted:

(b) a provision of an order, notice, direction, requirement or report made under this Act, other than an order under section 84 or 106.1 or an order of a court; or

(6) Subsection 16 (2) of the Act, as re-enacted by the Statutes of Ontario, 1998, chapter 35, section 49, is amended by striking out "and" at the end of clause (b) and by adding the following clause:

(b.1) in the case of a contravention of subsection 30 (1) for which an order to pay an environmental penalty could be issued, describe how the contravention may impair the quality of the water of any waters; and

(7) Clause 16 (3) (g) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 49, is repealed and the following substituted:

(g) where the contravention has caused damage to or endangered or is likely to cause damage to or endanger existing water supplies, providing temporary or permanent alternate water supplies;

(8) Subsection 16.4 (9) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 49 and amended by 2000, chapter 26, Schedule F, section 13, is amended by striking out "For the purpose of an appeal to the Tribunal" at the beginning and substituting "For the purpose of section 100 and a hearing required under that section".

(9) Section 16.4 of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 49 and amended by 2000, chapter 26, Schedule F, section 13, is amended by adding the following subsection:

Same

(10) Clause 21.3 (6) (a) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 56, is repealed and the following substituted:

(11) The French version of section 23 of the Act is amended by striking out "la propriété en l'état où elle" and substituting "le bien en l'état où il".

(12) Section 28 of the Act, as amended by the Statutes of Ontario, 1998, chapter 35, section 61 and 2000, chapter 22, section 2, is repealed.

(13) Section 84 of the Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule G, section 6 and 2001, chapter 17, section 5, is amended by adding the following subsections:

Joint and several liability

(5) Where two or more persons are liable to pay costs pursuant to an order under subsection (1), (2) or (2.1), they are jointly and severally liable to Her Majesty in right of Ontario.

Contribution and indemnity

i. where one person is found at fault or negligent, any other person to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1), and

2. For the purpose of subparagraph 1 ii, if it is not practicable to determine the respective degrees in which the fault or negligence of two or more persons to whom the Director is entitled to issue an order under subsection (1), (2) or (2.1) caused or contributed to the costs, such two or more persons shall be deemed to be equally at fault or negligent.

Enforcement of contribution

(7) The right to contribution or indemnification under subsection (6) may be enforced by action in a court of competent jurisdiction.

Adding parties

(14) Subsection 86 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 13, is amended by striking out "an order under subsection 84 (1)" in the portion before clause (a) and substituting "an order under subsection 84 (1) or (2.1)".

(15) Paragraph 4 of subsection 89.3 (3) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 5, is repealed and the following substituted:

4. If the presence or discharge of the material has damaged or endangered or is likely to damage or endanger existing water supplies, a direction to provide temporary or permanent alternate water supplies.

(16) Paragraph 4 of subsection 89.8 (4) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 5, is repealed and the following substituted:

(17) Paragraph 4 of subsection 89.12 (5) of the Act, as enacted by the Statutes of Ontario, 2001, chapter 17, section 5, is repealed and the following substituted:

(18) Subsection 100 (1) of the Act is repealed.

(19) Subsection 100 (1.1) of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 67, is repealed.

(20) Subsection 100 (2) of the Act is repealed.

(21) Subsection 100 (8) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 13, is repealed.

(22) Section 100 of the Act, as amended by the Statutes of Ontario, 1998, chapter 35, section 67 and 2000, chapter 26, Schedule F, section 13, is amended by adding the following subsection:

Powers of Tribunal

(10) Subject to sections 86, 101 and 102.1, a hearing by the Tribunal under this section shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

(23) Subsection 101 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 13, is amended by striking out "a hearing by the Tribunal" in the portion before clause (a) and substituting "a hearing by the Tribunal under section 100".

(24) Subsection 102 (1) of the Act, as amended by the Statutes of Ontario, 2000, chapter 26, Schedule F, section 13, is repealed and the following substituted:

Stay of action under review

(1) The commencement of a proceeding before the Tribunal under section 100 does not stay the operation of a direction, order, report, notice or decision made, issued or given under this Act, other than,

(a) an order to pay the costs of work made under section 84; or

(b) an order to pay an environmental penalty.

(25) Subsection 102 (2) of the Act, as re-enacted by the Statutes of Ontario, 2001, chapter 17, section 5, is repealed and the following substituted:

Tribunal may grant stay

(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a direction, order, report, notice or decision, other than,

(a) a direction, order, report or notice to monitor, record and report; or

(b) an order issued under section 89.3, 89.8 or 89.12.

(26) The Act is amended by adding the following sections:

Amount of environmental penalties

102.1 (1) For greater certainty, if a hearing by the Tribunal is required under section 100 in respect of an order to pay an environmental penalty, the regulations made under clause 106.1 (15) (d) governing the determination of the amounts of environmental penalties apply to the Tribunal.

Same

(2) Subject to subsection (1), if a hearing by the Tribunal is required under section 100 in respect of an order to pay an environmental penalty, the Tribunal shall not substitute its opinion for that of the Director with respect to the amount of the penalty unless the Tribunal considers the amount to be unreasonable.

Onus for certain proceedings that relate to discharges

102.2 (1) This section applies to a hearing by the Tribunal under section 100 if,

(a) the hearing was required by a regulated person;

(b) the order that is the subject of the hearing is,

(i) an order made under subsection 106.1 (1), or

(ii) an order made under section 16, an order made under section 16.3 that amends an order made under section 16, or an order made under section 16.4 that confirms or alters an order made under section 16, unless the contravention in respect of which the order is made is prescribed by the regulations made under section 106.1 as a contravention in respect of which an order may not be issued under subsection 106.1 (1); and

Contraventions of s. 30 (1)

(2) If this section applies to a hearing and the order that is the subject of the hearing relates to a contravention of subsection 30 (1), the person who required the hearing has the onus of proving that the material that was discharged into the natural environment is not material that may impair the quality of the water of any waters in the manner described in the order.

Contraventions of other discharge provisions

(3) If this section applies to a hearing and the order that is the subject of the hearing relates to a discharge into the natural environment in contravention of a provision referred to in subclause 106.1 (1) (a) (ii), (iii) or (iv), the person who required the hearing has the onus of proving that the person did not contravene the provision.

(27) The Act is amended by adding the following section:

Appeals from Tribunal

102.3 (1) Any party to a hearing before the Tribunal under section 100 may appeal from its decision or order on a question of law to the Divisional Court in accordance with the rules of court.

Appeal to Minister

(2) A party to a hearing before the Tribunal under section 100 may, within 30 days after receipt of the decision of the Tribunal or within 30 days after final disposition of an appeal, if any, under subsection (1), appeal in writing to the Minister on any matter other than a question of law and the Minister shall confirm, alter or revoke the decision of the Tribunal as to the matter in appeal as the Minister considers in the public interest.

Decision of Tribunal not automatically stayed on appeal

(3) An appeal of a decision of the Tribunal to the Divisional Court or to the Minister does not stay the operation of the decision, unless the Tribunal orders otherwise.

Divisional Court or Minister may grant or set aside stay

(4) If a decision of the Tribunal is appealed to the Divisional Court or to the Minister, the Divisional Court or the Minister may,

(a) stay the operation of the decision; or

(b) set aside a stay ordered by the Tribunal under subsection (3).

(28) Section 106.1 of the Act, as enacted by the Statutes of Ontario, 1998, chapter 35, section 69 and amended by 2000, chapter 22, section 2, 2000, chapter 26, Schedule F, section 13 and 2001, chapter 9, Schedule G, section 6, is repealed and the following substituted:

Environmental penalties

106.1 (1) Subject to the regulations, the Director may issue an order requiring a regulated person to pay a penalty if,

(a) the regulated person contravenes,

(i) subsection 30 (1),

(ii) a provision of the regulations that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment,

(iii) a provision of an order, notice, direction, requirement or report under this Act that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment, or

(iv) a provision of a licence, permit or approval under this Act that establishes or has the effect of establishing a numerical limit, including a limit of zero, on the amount, concentration or level of anything that may be discharged to the natural environment; or

(b) the regulated person contravenes a provision, other than a provision referred to in clause (a), of,

(i) this Act or the regulations,

(ii) an order, notice, direction, requirement or report under this Act, other than an order under section 84 or an order of a court,

(iii) a licence, permit or approval under this Act, or

(iv) an agreement under subsection (9).

Exceptions

(2) Subsection (1) does not apply to,

(a) a contravention of subsection 30 (1), if,

(i) neither this Act nor the Environmental Protection Act requires the regulated person to notify the Ministry of the discharge to which the contravention relates, or

(ii) the discharge to which the contravention relates was authorized under this Act or the Environmental Protection Act; or

(b) a contravention of section 98.

Contents of order

(3) The order shall be served on the person who is required to pay the penalty and shall,

(a) contain a description of the contravention to which the order relates, including, where appropriate, the date and location of the contravention;

(b) in the case of a contravention of subsection 30 (1), contain a description of the adverse effects that were caused by or that may be caused by the contravention;

(d) give particulars respecting the time for paying the penalty and the manner of payment; and

(e) provide information to the person as to the person's rights under section 100.

Amount

(4) The amount of the penalty shall be determined in accordance with the regulations.

Maximum penalty

(5) The amount of the penalty shall not exceed $100,000 for each day or part of a day on which the contravention occurred or continued.

Absolute liability

(6) A requirement that a person pay an environmental penalty applies even if,

(a) the person took all reasonable steps to prevent the contravention; or

(b) at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention innocent.

Same

(7) For greater certainty, nothing in subsection (6) affects the prosecution of an offence.

Limitation

(8) An order requiring payment of an environmental penalty shall be served not later than the first anniversary of the later of the following dates:

1. The date the contravention occurred.

2. The date on which the evidence of the contravention first came to the attention of the Director or a provincial officer.

Agreements

(9) The Director and a person against whom an order may be or has been made under subsection (1) may enter into an agreement that,

(a) identifies the contravention in respect of which the order may be or has been made;

(b) requires the person against whom the order may be or has been made to take steps specified in the agreement within the time specified in the agreement; and

(c) provides that the obligation to pay the penalty may be cancelled in accordance with the regulations or the amount of the penalty may be reduced in accordance with the regulations.

Publication of agreements

(10) The Ministry shall publish every agreement entered into under subsection (9) in the environmental registry established under section 5 of the Environmental Bill of Rights, 1993.

Penalty does not prevent prosecution

No admission

Failure to pay when required

(13) If a person who is required to pay an environmental penalty fails to comply with the requirement,

(a) the order or decision that requires the payment may be filed with a local registrar of the Superior Court of Justice and may be enforced as if it were an order of the court;

(b) the Director may by order suspend any licence, permit or approval that has been issued to the person under this Act until the environmental penalty is paid; and

(c) the Director may refuse to issue any licence, permit or approval to the person under this Act until the environmental penalty is paid.