Decision Date: September 27, 2021

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – s. 115; Administrative Penalties (Environmental Management Act) Regulation – ss. 7, 20(1); contravention; concrete facility; wastewater sampling; administrative penalty

United Concrete & Gravel Ltd. (the “Appellant”) appealed a determination of contravention and penalty issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy (the “Ministry”).

The Appellant operates a facility that produces concrete and glass abrasives (the “Facility”). The Code of Practice for the Concrete and Concrete Products Industry (the “Code”) regulates the discharge of wastewater by the concrete industry. Section 8(1) of the Code requires process water and runoff from the Facility to be sampled and analyzed at least once per month.

Inspections by Ministry staff in 2016 and 2017 found that the Appellant was not complying with section 8(1) of the Code. A warning letter was issued to the Appellant in 2016. In June 2019, the Ministry levied an $11,000 administrative penalty against the Appellant for contraventions of section 8(1) of the Code. On the same date, the Ministry levied other administrative penalties against the Appellant for other contraventions of the Code.

In July 2019, Ministry staff inspected the Facility and found that analyses of process water and runoff were available for only seven of 21 months from October 2017 to June 2019. Consequently, the Ministry issued a warning letter advising the Appellant that it was noncompliant with section 8(1) of the Code, and that the contraventions may result in administrative penalties. The warning letter requested that the Appellant immediately address the contraventions.

In October 2020, Ministry staff inspected the Facility and found that analyses of process water and runoff were available for only six of the 14 preceding months. Consequently, the Ministry notified the Appellant that its contraventions of section 8(1) of the Code were being referred for an administrative penalty.

In April 2021, the Director issued the determination and imposed a penalty of $16,824 against the Appellant for contravening section 8(1) of the Code eight times from October 2019 to October 2020. In determining the amount of the penalty, the Director considered, among other things, the Appellant’s previous contraventions of section 8(1) and its failure to address the noncompliance.

The Appellant appealed the determination. The Appellant submitted that a landfill had contaminated the groundwater below the Facility, and it made no sense to sample surface water that runs off into contaminated groundwater. The Appellant asked that it be excused from the sampling requirement and that it not have to pay the penalty.

The Board found that even if groundwater below the Facility was already contaminated, the Code does not exempt facilities from compliance with section 8(1) in such circumstances. Even if a site is contaminated in some way, additional contamination may be harmful for the environment, or may exacerbate the existing contamination. Regardless of any pre-existing contamination below the Facility, the Appellant was required to undertake monthly analyses of its runoff and product water pursuant to section 8(1) of the Code, and it failed to do so.

Next, the Board considered the Director’s rationale for the penalty, the factors in section 7 of the Administrative Penalties (Environmental Management Act) Regulation, and the maximum penalty for contravening section 8(1) of the Code. The Board generally agreed with the Director’s findings regarding the amount of penalty that was appropriate in the circumstances. The Board found that the penalty should not be rescinded or reduced.

In conclusion, the Board confirmed the penalty, and dismissed the appeal.