Compliance and enforcement for environmental assessment projects

 

Overview of EAO compliance & enforcement

When a project is issued an environmental assessment certificate or exemption order, ongoing compliance oversight, including compliance inspections – and where required – enforcement actions, ensure that projects are designed, built, operated and decommissioned/reclaimed in compliance with their certificate or order.

The EAO will continue to coordinate compliance and enforcement activity with our regulatory partners using modernized compliance and enforcement tools that enhances the current compliance and enforcement program.

Compliance with what?

Upon completion of the environmental assessment process, projects may be granted a certificate or exemption order. Both certificates and exemptions are legally binding and contain requirements that must be followed for the life of the project to mitigate potential adverse effects.

In addition to a project's certificate or exemption order, compliance and enforcement officers use the Act and its regulations to guide their compliance and enforcement activities.

Who is involved?

Throughout the life of a project, compliance and enforcement officers coordinate with other provincial government agencies to ensure the projects are built and operated in accordance with the Act, including the certificate or exemption order. In addition, compliance and enforcement officers routinely work with Indigenous nations on the conduct of compliance and enforcement within their traditional territories and treaty lands.

Indigenous nation involvement

In alignment with the reconciliation objectives of the Act, EAO compliance and enforcement enhances the effectiveness and transparency of compliance oversight by engaging Indigenous nations in the conduct of compliance and enforcement activities within their traditional territories and treaty lands. The EAO Compliance and Enforcement Indigenous Liaison Program focuses on two primary objectives:

• Objective 1:  Engage with Indigenous nations on all EAO involved projects within the Nation’s traditional territory or treaty lands. This compliance and enforcement engagement process is flexible to accommodate the interests of the Nation and provides a formal structure to facilitate engagement, increases EAO compliance and enforcement’s accountability to Nations, supports consistency of practice throughout the province, and provides continuity of engagement with Nations throughout the life of a project. This objective is focused on facilitating communication between EAO compliance and enforcement and Nations, ensuring Nations are aware of EAO involved projects within their traditional territories or treaty lands, and ensures EAO compliance and enforcement understands the interests and concerns of Nations regarding those projects in relation to compliance and enforcement.
• Objective 2:  Establish formal dialogue with Indigenous nations throughout the inspection process and encourage Indigenous participation in inspections. EAO compliance and enforcement branch retains compliance and enforcement and Indigenous Liaison Officers. compliance and enforcement conduct inspections and liaison officers work with both Indigenous nations and compliance and enforcement to ensure that Nations are involved in EAO inspections to the greatest extent practicable. Participation is seen by compliance and enforcement as a critical aspect that links the consultation, certificate requirements and field verification processes together in a transparent and effective manner.

What gets inspected?

Every year, compliance and enforcement officers go through an inspection planning process to determine which projects will be inspected. This process results in an inspection plan that guides routine inspections for the year. In addition to the inspection plan, inspections may be conducted following a complaint, information received from an Indigenous nation, other government agencies, the public, or as follow-up to previous inspections.

Once an inspection is complete, the EAO posts the inspection record to the EAO Project Information Centre (EPIC) website.

What happens if a project is not in compliance?

If a project is found to be out of compliance, compliance and enforcement officers at the EAO determine the appropriate enforcement response which could include:

• Warnings 
• Orders to prevent, cease or remedy
• Violation tickets ($575)
• Administrative monetary penalties (up to $750,000) 
• A range of other potential sanctions set out in the Environmental Assessment Act - such a court imposed penalties of up to $1,000,000 for a first conviction and up to $2,000,000 for subsequent convictions

For example, a compliance and enforcement officer may order a certificate or exemption holder to cease activity or take action to remedy a non-compliance in a specific way and by a specific date. The Minister may also suspend, cancel, or amend a certificate. Once an enforcement order is issued, the EAO publicly posts the order to the EAO's Project Information Centre.

Through inspections, investigations, self-reports and working closely with partners, compliance and enforcement officers independently and objectively ensure certificate or exemption holders are adhering to the legally binding requirements of the Act, including their certificates or exemption orders.

 

What's new under the 2018 Environmental Assessment Act?

The Environmental Assessment Act brings the authorities of compliance and enforcement officers in line with other provincial natural resource ministries and introduces modernized compliance and enforcement tools.

Inspection Power (section 49)

• The specific authorities of compliance and enforcement officers while undertaking an inspection have been expanded and clarified in comparison to the previous Act
• Officers are now specifically authorized to examine and take away samples from a project site and request any document related to a reviewable project
• The duty to assist an compliance and enforcement officers during an inspection is now included in the Act
• The Act now clearly states in section 49(6) that a regulated party cannot obstruct an officer during the conduct of their duties
• Officers can bring along persons that are necessary for the purposes of entry on an inspection with them

Investigative Power (section 52)

Compliance and enforcement officers are now able to apply for warrants to enter and search under the Act. Warrants may also authorize seizure and removal of anything that the officer has reasonable grounds to believe is evidence of an offence.

Order to Prevent, Cease or Remedy (section 53)

Authority to cease or remedy under the old Act was limited to circumstances where a non-compliance had already occurred. Under the new Act, compliance and enforcement officers may also issue orders to prevent a non-compliance in addition to the ability to issue orders to cease or remedy an ongoing non-compliance.

Suspension, cancellation and amendment of certificates and exemption orders (section 56)

This provision is expanded to address some practical realities where certificate cancellation would be an appropriate course of action:

• On request of a certificate holder
• If the project is not operational on the 20th anniversary of certificate issuance

Administrative Enforcement Measures (section 60 and Offence Act)

The EAO has new options to impose financial penalties without seeking court-imposed financial penalties

• C&E officers may now issue violation tickets ($575) under the Offence Act
• The EAO may impose an administrative monetary penalty under section 60 of the Act, informed by the Administrative Penalties Regulation 

New offences under the Act (section 63)

New offences under the Act have been added, including:

• Refusing to assist an officer during an inspection
• Obstructing an officer during inspection

Court-Imposed Penalties (section 65)

• Changes to this provision increase the range of fines for court-imposed penalties to be the equal to or higher than other similar provincial and federal statutes
• The Act provides for a maximum court-imposed penalty of $1,000,000 on first conviction and of $2,000,000 on each subsequent conviction

Compliance and enforcement guidance documents

To learn more about the Environmental Assessment Office's compliance and enforcement program, please see the documents below:

• EAO Compliance and Enforcement Policy and Procedure (PDF) (2020) 
• Certificate Holder's Guide to Compliance Self Reports (PDF) (2019) 
• Information Bulletin: Environmental Monitors and Independent Environmental Monitors (PDF) (2019) 
• Investigative Use Policy (PDF) (2019)
• Environmental Assessment Certificates (PDF) (2019) -  an overview of the legal obligations that come with an environmental assessment certificate
• Complaint Guidance (PDF) (2019) -  guidance on how to make a complaint about reviewable projects under the Environmental Assessment Act and explains the EAO's complaint review process 

EAO's progress implementing Auditor General's recommendations

In July 2011, the Office of the Auditor General released an audit that focused on the Environmental Assessment Office's post-certification monitoring and compliance and enforcement efforts. The audit recommended that the Environmental Assessment Office's oversight of certified projects be enhanced to ensure potential significant adverse effects are avoided or mitigated.

You can read the auditor general's audit report at: An Audit of the Environmental Assessment Office's Oversight of Certified Projects

On May 26, 2015, the Office of the Auditor General released a progress report: Follow-Up Report: Environmental Assessment Office (PDF).

The Environmental Assessment Office has made significant progress implementing all six of the Auditor General's recommendations. A key action was the development of a comprehensive compliance and enforcement program in 2011 based on best practices from other agencies and leading jurisdictions.

In addition to the development and implementation of the Compliance & Enforcement Program, the Environmental Assessment Office has undertaken the following initiatives to meet the recommendations of the Auditor General:

Auditor General Recommendation	Environmental Assessment Office Progress	Status of Work
Ensure commitments are clearly written in a measurable and enforceable manner.	Develop draft environmental assessment certificates and exemption orders with input from compliance and enforcement officers.   Assess each draft environmental assessment certificate and exemption order to ensure it is clear, measurable and enforceable.   Work with permitting agencies, working groups and technical experts to ensure there are no regulatory gaps, and that overlaps exist only when necessary to avoid significant adverse effects.   Added a legally-binding Certified Project Description to environmental assessment certificates to specify the physical components of an approved project. Added a legally-binding exempted project description to exemption orders to specify the physical components that can proceed without an environmental assessment.   Developed an expanded policy for drafting certificates, conditions and certified project descriptions: The Environmental Assessment Certificate Policy: Drafting Conventions for Certificates, Certificate Amendments and Exemption Orders (PDF, 1.4MB)	Fully Implemented
Continue to work with the Ministry of Environment to finalize a policy framework that will provide provincial guidance on environmental mitigation.	Participated in the development of the Environmental Mitigation Policy for British Columbia led by the Ministry of Environment.	Fully Implemented
Clarify the post-certification monitoring responsibilities and compliance mechanisms for each commitment.	Work with other agencies to clarify roles and responsibilities for compliance management of certified projects.   Authorization by the Environmental Assessment Office and other agencies to conduct compliance oversight for each other, including: Developed a May 2012 Letter of Agreement with the Ministry of Forests, Lands and Natural Resource Operations to identify roles and responsibilities for inspections of certified projects.  Developed an October 2013 Memorandum of Understanding with the Oil and Gas Commission (PDF) that includes environmental assessment, permitting and compliance-related information.  Participated in interagency compliance committees and initiatives to ensure integration with other enforcement agencies.	Fully Implemented
Develop and implement a comprehensive compliance and enforcement program that includes an integrated information management system to monitor project progress and ensure compliance.	Developed and implemented a Compliance & Enforcement Program that undertakes: compliance operations - field and administrative inspections, complaint reviews, investigations, compliance self-report reviews, enforcement, etc. to promote compliance and enforce legally-binding certificates and exemption orders;  information sharing, outreach and agreements with partner agencies and Indigenous groups;  contributions to the development of measurable and enforceable certificates and exemption orders; and effectiveness management to ensure continuous improvement of environmental assessments and compliance management.  Developed Compliance and Enforcement Policy and Procedures (PDF). Developed an interim information system to support compliance oversight while developing a system in partnership with other agencies that will enhance information-sharing with other compliance agencies.	Fully or Substantially Implemented
Conduct post-certificate evaluations to determine whether environmental assessments are avoiding or mitigating the potentially significant adverse effects of certified projects.	Conduct inspections, including inspections with partner agencies, to evaluate whether mitigation measures are being implemented as required. Use knowledge gained about the effectiveness of mitigation measures through inspections to inform current and future environmental assessments. Standardized conditions developed and implemented for Certificates, Certificate Amendments and Exemption Orders. Develop a library of conditions for common mitigation measures.	Fully or Substantially Implemented
Provide appropriate accountability information for projects certified through the environmental assessment process	Posted information relating to environmental assessments and post-certificate activities on the website, including compliance self-reports. Expanded the website to include detailed compliance information for each project, including compliance self-reports, inspection reports, and enforcement actions.  Created a compliance and enforcement email address to enable the public, Indigenous Groups and industry to submit complaints and inquire about certified projects. Added contact information on the website to enable the public, Indigenous Groups and industry to easily seek out information relating to specific sectors. Working with the Aboriginal Liaison Program to bring designated Aboriginal Liaisons on inspections of certified projects	Fully  Implemented

The Environmental Assessment Office continues to address the recommendations from the audit, including:

• effectiveness and analysis tracking (taking lessons learned from compliance oversight and feedback from certificate of exemption holders and independent environmental monitors for consideration in future environmental assessments)
• posting compliance and enforcement related documents on the Environmental Assessment Office's website (e.g. inspection records, enforcement actions, management plans and reports required by conditions in certificates)
• development of programs with Indigenous Groups regarding the compliance oversight of projects within their traditional territories through the Aboriginal Liaison Program and internal EAO mechanisms
• exploring new and updated partnerships with other compliance agencies

Letter from the EAO to the Office of the Auditor General of British Columbia regarding the posting of inspection reports on the EAO's website (PDF) (2017).