The Administrative Penalties Regulation

Perhaps a home-owner burns some brush without a permit or a service technician, topping up an air conditioner, purposefully overlooks a small leak. Or perhaps a company misses the deadline for supplying information to the Environment Department as part of its application for an Air Quality Approval.

Technically, in each of these situations, the individual or company could face prosecution for violating the Clean Air Act.

For minor offenses like these, however, legal action is not always the best response. Prosecution can be time-consuming and expensive, and may not always serve the best interests of New Brunswickers. The Administrative Penalties Regulation provides another option for enforcement.

The Regulation is administered directly by the Department. It allows a Director, appointed by the Minister, to issue a penalty for minor offenses that are not clearly intentional or that cause limited harm to the environment.

First and foremost, this Regulation is designed to encourage individuals and companies to comply with the law, and it allows the Department to impose penalties that are in direct proportion to the offence. When a minor offence occurs, the Department can respond without resorting to the court system, a process which generally involves longer time-frames and greater costs for all involved.

The Director must have reasonable and probable grounds to believe that the Act or its Regulations have been violated. A warning may be given, or a penalty may be issued without any previous warning, depending on the circumstances. Based on the severity of the offence, and its likely impact on the environment, the Director can issue a penalty to an individual or company ranging from $200 to $5,000. The Director keeps a record of all decisions and reviews it in order to ensure consistency and fairness.

A person who, or company which refuses to pay the penalty may be prosecuted for the offence which initially led to the penalty.

The Department keeps a record of all administrative penalties that have been paid. A five-year account of this information is available to the public through the Clean Air Act's Public Registry. Information from the Registry may be retrieved by contacting the Department or any of its Regional Offices, or by accessing the Clean Air Act site on the Department's internet pages.

There is no appeal process for administrative penalties. If a penalty is unpaid, the case will be considered for prosecution.

The Administrative Penalties Regulation lists the specific provisions of the Act and Regulations that could be subject to penalties.

For example, administrative penalties might be appropriate for:

• Failure to conduct monitoring tests or submit information to the Department;
• Open burning without a permit;
• Starting construction of a source without first obtaining the required approval;
• Exceeding the smoke density limits prescribed by regulation; or
• Topping up an air conditioner with ozone depleting substances, without first repairing leaks.

An administrative penalty can be issued no more than three times for the same or a similar offence. After that point, prosecution is likely to follow.

In deciding to take a case to court instead of issuing an Administrative Penalty, the Director will be guided by the Department's Compliance and Enforcement Policy. It requires the Department to lay charges in cases where:

• There has been death or bodily harm to any person;
• There is significant harm or risk to human health or the environment;
• The alleged offender does not take all reasonable steps to comply with the terms and conditions of a certificate, licence, permit or a Ministerial Order;
• A violation is repeated or warnings ignored, or there is a poor record of compliance;
• The violation is deliberate, or due to a considerable degree of negligence;
• The alleged offender gives false or misleading information to an inspector, obstructs an inspector during his or her duties, hides the offence, or interferes with an item seized by an inspector; or
• Reasonable measures were not taken to prevent the violation.