Appeal No. 97-001

 

Hearing: May 8, 1997
Date of Decision: June 6, 1997

 

IN THE MATTER OF Sections 84, 86, 87, 90, and 223 of the Environmental Protection and Enhancement Act (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Donald F. Ball of Haypsur Aviation Ltd. against an administrative penalty issued on January 24, 1997, by the Director of Pollution Control, Alberta Environmental Protection to Hayspur Aviation Ltd. for the contravention of Section 34 of the Pesticide Sales, Handling, Use and Application Regulation, Alberta Regulation 126/93 and Section 99(1) of the Environmental Protection and Enhancement Act.

Cite as: Hayspur Aviation Ltd. v. Director of Pollution Control, Alberta Environmental Protection.

HEARING BEFORE

Dr. Steve Hrudey, Panel Chair
Dr. John P. Ogilvie
Mr. Ron Peiluck

APPEARANCES

Appellant: Mr. Donald Ball, Hayspur Aviation Ltd., represented by Mr. Julian Bodnar, Ms. Ruth Ball

Other Parties: Mr. Ray Bodnarek, Environmental Law Section, Alberta Justice, representing Mr. Fred Schulte, Director of Pollution Control, Alberta Environmental Protection; Mr. Jock McIntosh and Mr. Wayne Boyd

SUMMARY

The Department of Environmental Protection assessed a preliminary penalty of $5,000.00 against the Appellant for contraventions of the Environmental Protection and Enhancement Act and the Pesticide Sales, Handling, Use and Application Regulation. Following a meeting with the Appellant, the Director assessed a final penalty of $2,500.00. The Appellant admitted that he disposed of pesticide rinsate on the runway of the City of Camrose Airport and he offered to make any needed repairs to damaged grass in the spring.

The Board varies the decision of the Director of Pollution Control by assigning a final penalty of $1,000.00. No costs were awarded.

TABLE OF CONTENTS


FINDINGS OF FACT 5
I. BACKGROUND 5
A. Approval Issued to Hayspur Aviation Ltd. 6
B. Pesticide Regulation 6
II. INVESTIGATION AND ADMINISTRATIVE RESPONSE 6
A. Investigation of Hayspur Aviation Ltd. 6
B. Facts Agreed to in the Submissions of the Parties and Established by the Evidence 7
C. Preliminary Assessment of Administrative Penalty 8
D. Final Assessment 9
III. LEGISLATIVE SCHEME 9
IV. FACTORS RELATED TO ASSESSMENT OF PENALTIES 11
V. ASSESSMENT OF PENALTIES IN THIS CASE 13
A. Decision to Proceed with the Administrative Penalty Process 13
B. Step One of the Assessment 14
C. Step Two of the Assessment 15
D. Meeting with the Appellant and the Final Assessment 16
CONCLUSIONS 17
I. JURISDICTION AND STANDING 17
II. ENVIRONMENTAL PROTECTION AND ENHANCEMENT ACT 18
III. ADMINISTRATIVE PENALTIES 19
IV. REVIEW OF THE DIRECTOR'S DECISION 20
V. ORDER 23
A. Administrative Penalty 23
B. Costs 23

 

FINDINGS OF FACT

I. BACKGROUND

[1] On February 24, 1997, Mr. Donald F. Ball of Hayspur Aviation Ltd. (Appellant) filed a Notice of Appeal dated February 18, 1997, with the Environmental Appeal Board (Board). The appeal relates to an administrative penalty assessed on January 24, 1997, for the contravention of Section 34 of the Pesticide Sales, Handling, Use and Application Regulation, Alberta Regulation 126/93 and Section 99(1) of the Environmental Protection and Enhancement Act (Act). According to the Notice of Administrative Penalty, the contravention was that:

Donald Ball, a certified pesticide applicator and Director of Hayspur Aviation Ltd., improperly disposed of approximately 100 gallons of pesticide rinsate by releasing it from his aircraft spray tanks to the surrounding environment on a runway at the City of Camrose airport; and

The disposal of the pesticide rinsate resulted in an adverse effect, and was not reported by Donald Ball as required.

[2] In result, Hayspur Aviation, received a preliminary assessment from the Pollution Control Division of Alberta Environmental Protection (Department) of $5,000.00, and a final assessment of $2,500.00.

[3] The Appellant now appeals, pursuant to Section 84 of the Environmental Protection and Enhancement Act (Act), for dismissal or a reduction of the administrative penalty. The Appellant has admitted to the disposal of pesticide rinsate which is the subject of the penalty under Section 34 of the Pesticide Sales, Handling, Use and Application Regulation, Alberta Regulation 126/93 but the Appellant disputes the penalty assigned. The Appellant disputes the validity of the penalty for failing to report under Section 99(1) of the Environmental Protection and Enhancement Act (Act). The Appellant seeks to have the penalties set aside and requests full costs.

A. Approval Issued to Hayspur Aviation Ltd.

[4] Hayspur Aviation Ltd., was issued Pesticide Service Approval No. 16980 on February 1, 1996 and Pesticide Applicator Certificate of Qualification No. 13405 on May 6, 1996.

B. Pesticide Regulation

[5] The history of the regulatory scheme for pesticides has been recently reviewed in an earlier decision of the Board.(1)

[6] Failure to comply with the Environmental Protection and Enhancement Act and the pesticide regulations is an offence and may result in enforcement actions for the contraventions in question ranging from administrative penalties with a maximum value of $5,000.00 per count for each day of the contravention up to charges with maximum fines up to $50,000.00 for a person or up to $500,000.00 for a corporation per count for each day of the contravention. Enforcement action by means of an administrative penalty was the process that brings this appeal to the Board.

II. INVESTIGATION AND ADMINISTRATIVE RESPONSE

A. Investigation of Hayspur Aviation Ltd.

[7] On July 23, 1996, Department staff were informed by the City of Camrose of damage to grass adjacent to the runway.

[8] On July 25, 1996, the Pesticide Management Branch (PMB), inspected the runway and noted three areas where grass adjacent to the runway had been damaged. Soil samples were taken. Upon being notified by an official of the City of Camrose of the damaged grass, Mr. Ball admitted that he had disposed of pesticide rinsate from his aircraft spray tanks onto the runway at the location where the damage occurred and indicated that he may be responsible for this damage. Mr. Ball made arrangements with City of Camrose staff to repair the damage the following spring if necessary.

[9] On August 6, 1996, Mr. Ball contacted the PMB with the same admission and an offer to remediate any damage. He provided a written report(2) respecting the incident to PMB on August 21, 1996. Mr. Ball subsequently provided a written statement(3) to a PMB investigator on October 21, 1996 providing a copy of the work order for the pesticide spray application which created the rinsate in question.

[10] The Pesticide Management Branch inspected the City of Camrose airport runway on August 21, 1996. Damage to the grassy areas was still visible but regrowth was evident. The opinion of PMB was that there would not be a long term adverse effect and no remediation was likely to be required.

B. Facts Agreed to in the Submissions of the Parties and Established by the Evidence

[11] Donald Ball is a director and shareholder of Hayspur Aviation Ltd.

[12] On or about June 27, 1996, Donald Ball disposed of approximately 100 gallons of pesticide rinsate with residues of Achieve Extra Gold together with cleaning agents onto a runway at City of Camrose Airport.

[13] Mr. Ball provided a written statement(4) to Alberta Environmental Protection indicating that rinsate contained residues of Achieve Extra Gold which normally contains tralkoxydim, bromoxynil and MCPA. The cleaning agents in the disposed solution were approximately 2 to 3 litres of Finish, 7% ammonia and 2 to 3 litres of Super Plus 115 degreaser soap. The disposed rinsate ran out on both sides of the runway off the pavement on to the adjacent grass.

[14] Mr. Ball confirmed in his evidence at the hearing that the rinsate disposal took place along a stretch of approximately 100 ft. on the runway of the City of Camrose Airport at the location where grass adjacent to the runway subsequently showed damage.

C. Preliminary Assessment of Administrative Penalty

[15] On January 14, 1996, the Director wrote to Mr. Ball of Hayspur Aviation Ltd. and informed him of the following:

On the basis of the [investigation], I intend to assess an administrative penalty of $5,000.00 pursuant to Section 223 of the Environmental Protection and Enhancement Act, and as specified in Section 1 of the Schedule to the Administrative Penalty Regulation (AR 143/95).

You may make an oral or written submission to me addressing any additional information relating to this incident of which we may not be aware, or comments relating to the amount of the assessment. Your submission will be considered before making a final assessment of the administrative penalty.

[16] A penalty assessment meeting took place on January 22, 1997, between the Director, his staff, including a legally trained compliance analyst (P. Gariepy) and the Appellant.

D. Final Assessment

[17] After consideration of the case presented by Mr. Ball, a final assessment of $2,500.00 was issued by the Director on January 24, 1997. From that assessment the Appellant initiated the appeal to the Board.

III. LEGISLATIVE SCHEME

[18] The Act established this Board to hear appeals from individuals or corporations who have complaints with decisions of Department officials. Section 83 of the Act states:

83 (1) There is hereby established the Environmental Appeal Board consisting of persons appointed by the Lieutenant Governor in Council.

(2) The Board shall hear appeals as provided for in this Act or any other enactment.

(3) The Board may convene a panel of Board members to conduct a hearing of an appeal and appoint a person to chair the panel. ..

[19] The purposes of the legislation establishing and governing the Board are found in Section 2 of the Act. These purposes are:

2 The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing the following:

(a) the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society;

(b) the need for Alberta's economic growth and prosperity in an environmentally responsible manner and the need to integrate environmental protection and economic decisions in the earliest stages of planning;

(c) the principle of sustainable development, which ensures that the use of resources and the environment today does not impair prospects for their use by future generations;

(d) the importance of preventing and mitigating the environmental impact of development and of government policies, programs and decisions;

(e) the need for Government leadership in areas of environmental research, technology and protection standards;

(f) the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions;

(g) the opportunities made available through this Act for citizens to provide advice on decisions affecting the environment;

(h) the responsibility to work co-operatively with governments of other jurisdictions to prevent and minimize transboundary environmental impacts;

(i) the responsibility of polluters to pay for the costs of their actions;

(j) the important role of comprehensive and responsive action in administering this Act.

[20] Section 34 of the Pesticide Sales, Handling, Use and Application Regulation (126/93) restricts the disposal of pesticide rinsate:

34 In addition to any terms and conditions in an approval, a person in possession of pesticide rinsate or pesticide solution shall dispose of the rinsate or solution in accordance with the latest edition of Procedures for Pesticide Applicators published by the Department.

[21] The section on Disposal of Pesticide Rinsate in The Procedures for Pesticide Applicators states:

9.1 Pesticide rinsate must:

9.1.1 be used in spraying operations as mix water; or

9.1.2 be sprayed over the treated area; or

9.1.3 be disposed of in a manner acceptable to a Director of the Department.

9.2 Pesticide rinsate used in accordance with 9.1 must comply with label directions regarding application rates and uses.

[22] Section 99(1) of the Act discusses the duty to report a release:

99(1) A person, other than the person having control of the substance, who releases or causes or permits the release of a substance into the environment that has caused, is causing or may cause an adverse effect shall, as soon as that person knows or ought to know of the release, report it to

(a) the Director,

(b) the owner of the substance, where the person reporting knows or is readily able to ascertain the identity of the owner,

(c) the person having control of the substance, where the person reporting knows or is readily able to ascertain the identity of the person having control, and

(d) any other person who the person reporting knows or ought to know may be directly affected by the release.

[23] Section 223 of the Environmental Protection and Enhancement Act enables the Director to require a person to pay an administrative penalty. Where the Act or regulations are contravened, the Administrative Penalty Regulation(5) sets out a method of calculating the penalty to be assessed. Appeals to this Board from Section 223 assessments come via Section 84 (k) which reads:

[A notice of appeal may be submitted]:

84(k) where the Director requires a person to pay an administrative penalty under section 223, [by] the person to whom the notice is directed. . . .

IV. FACTORS RELATED TO ASSESSMENT OF PENALTIES

[24] The Administrative Penalty Regulation (143/95) allows a maximum penalty to be assessed in respect of a contravention. The deeming provision provides that:

3(3) The maximum administrative penalty that may be charged in respect of a contravention is $5000 for each day or part of a day on which the contravention occurs or continues.

[25] The Director has a discretion in assessing a penalty, but the discretion must be exercised from the starting point of a Table that requires determination of the Variation From Regulatory Requirements and the Potential for Adverse Effect. Section 3(1) of the Regulation establishes Step One:

3(1) Subject to subsections (2) and (3), the amount of an administrative penalty shall be the base penalty calculated by the Director in accordance with the following Table:

Variation from Regulatory Requirements

    Major Moderate Minor
Potential Major $5000 $3500 $2500
For Moderate 3500 2500 1500
Adverse Effect Minor 2500 1500 1000

[26] In making a final determination, the Director begins with the Table (of Minor to Major Factual determinations). He then may raise or lower the penalty based on Section 3(2), a provision that creates Step Two:

3(2) In a particular case the Director may increase or decrease the amount of the administrative penalty from the base penalty after considering the following factors:

(a) importance of compliance with the regulatory scheme;

(b) the degree of wilfulness or negligence in the contravention;

(c) whether or not there was any mitigation of the consequences of the contravention;

(d) whether or not the person who receives the notice of administrative penalty has a history of non-compliance;

(e) whether or not the person who receives the notice of administrative penalty has derived any economic benefit from the contravention;

(f) any other factors that, in the opinion of the Director, are relevant.

[27] Essentially, the Director can set the base penalty assessment according to the severity of the potential adverse effects and the extent of contravention of the regulatory requirement. The Director can than modify the base penalty by considering the role of compliance with the particular provision under the overall regulatory scheme, the degree of intent in the commission of the offence, the presence of good faith in the efforts to comply or mitigate damage; the compliance history of the individual and economic benefit (if any) resulting from the violation. Finally, there is a "catch all" phrase of any other factor that may be relevant. In other words, the Director may look at any other matter that justice and fairness require.

V. ASSESSMENT OF PENALTIES IN THIS CASE

A. Decision to Proceed with the Administrative Penalty Process

[28] The Appellant presented evidence(6) that the investigator in this case, Mr. Wayne Boyd had issued a warning in response to another case, involving other parties. In that case, pesticide spraying had apparently drifted onto an adjacent property leading to a complaint to the PMB by the affected landowner. Following an investigation by PMB, Mr. Boyd advised the complainant that the party who had applied the herbicide to his crop had been notified of his responsibility to comply with provincial legislation for all future pesticide applications on his property, but, based upon the PMB investigation, no further compliance action was taken.

[29] The Appellant argued that the foregoing discretion to issue a warning rather than pursue further compliance action should have applied to his circumstances. The Board takes note of this argument. However, there was insufficient evidence of the merits of the decision by the inspector in the referenced case and of similarity between the circumstances of the referenced case to the subject of this appeal to determine that the Director was constrained to issue a warning rather than proceeding with an administrative penalty.

B. Step One of the Assessment

[30] Section 3(1) of AR 143/95 establishes as Step One the matrix to be used by the Director is assessing the penalty. First, the Director looks at the particular facts before him to determine the variation from regulatory requirements in reaching a base penalty. The range of options, in $500.00 increments, is from "major" to "minor".

[31] In determining Step One, the Director attempts to determine the potential for "adverse effect", a term defined in Section 1(b) of the Act:

1 In this Act,

(b) "adverse effect" means impairment of or damage to the environment, human health or safety or property:

[32] Reading the Act and the Pesticides and Administrative Penalty Regulations together, we conclude that confirmation of measurable environmental harm is not a necessary prerequisite for a penalty to be appropriate.

[33] In the case before the Board, the Director determined for both contraventions that the potential for adverse effect was moderate because while there was evidence of damage to grass over an area of approximately 0.5 ha,(7) the damage was not expected to last and remedial actions were likely not needed.

[34] The Director determined that the variation from regulatory requirements was major for the contravention of Section 99(1) of the Act, because of the importance of self-reporting obligations as a cornerstone for the Act. The variation from regulatory requirements was determined to be moderate for the contravention of Section 34 (AR 126/93). The importance of responsible actions by approved pesticide applicators is essential, so that the contravention was not minor, but the contravention was deemed to be less significant than the failure to report under Section 99(1).

[35] Accordingly, the result of Step One was a base penalty of $3,500.00 for the contravention of Section 99(1) of the Act and a base penalty of $2,500.00 for the contravention of Section 34 of AR 126/96.

C. Step Two of the Assessment

[36] The base penalty set in Step One was evaluated by the Director(8) in relation to six factors which the Director may consider for the purposes of increasing or decreasing the administrative penalty.

Importance of compliance with the regulatory scheme

[37] This factor was judged to be neutral because the importance of the contraventions for the regulatory scheme had already been adequately addressed in determining the base penalty.

Degree of wilfulness, or negligence in the contravention

[38] This factor was invoked to increase the penalty by $500.00 because Mr. Ball was a recently trained and certified applicator and he should have been fully aware of the applicable regulatory requirements for disposing of pesticide rinsate and reporting of spills.

Whether or not there was any mitigation of the consequences of the contravention

[39] This factor was invoked to decrease the penalty by $500.00 because Mr. Ball had initiated actions to prevent his transfer lines and spray tanks from gumming up in future, he had believed that the pesticide rinsate would not cause a problem based on advice from an agent for the manufacturer of the pesticide in question and he had offered to bear any remediation costs.

Whether or not the person who receives the notice of administrative penalty has a history of non-compliance

[40] This factor was invoked to decrease the penalty by $500.00 because he had no previous history of non-compliance.

Whether or not the person who receives the notice of administrative penalty has derived any economic benefit from the contravention

[41] This factor was judged to be neutral because the Director found no evidence of economic gain derived from the contraventions.

Any other factors that, in the opinion of the Director, are relevant

[42] The cooperative nature of Mr. Ball with the City of Camrose and with Alberta Environmental Protection was invoked to decrease the penalty by $500.00.

D. Meeting with the Appellant and the Final Assessment

[43] The Director goes beyond the legislative requirements of Section 3(1) and 3(2) of the Administrative Penalty Regulation (AR 143/95) by meeting with the assessed party before determining the final assessment. At this meeting the assessed party may make an oral or written submission addressing any additional information relating to this incident of which the Director may not be aware or providing comments about the amount of the assessment. The Director undertakes to consider any additional information provided before assessing the final penalty.

[44] At this meeting, Mr. Ball indicated that he took full responsibility for his actions. He admitted his mistake and provided details on a new system he has developed to prevent a similar event from occurring. The Appellant also indicated that he is in competition with another applicator who continually contravenes the regulations and underbids jobs in the Sedgewick area. This competition apparently continues to operate outside the law and has been subject to court fines below $1,000.00.(9) The Appellant demonstrated by the information provided and his demeanour that he is concerned about his reputation, and that he would not likely contravene the regulations again and has a commitment to protect the environment.

[45] In consideration of the discussions at the meeting with Mr. Ball, the Director reduced the preliminary assessment by 50% from $5,000.00 to a final assessment of $2,500.00.

CONCLUSIONS

I. JURISDICTION AND STANDING

[46] This appeal is a direct challenge to the decision of the Director. The underlying decision of the Director(10) to assess the penalty pursuant to Section 223 of the Act appears to have been properly made in law. The Appellant's challenge of the penalty pursuant to Section 84 of the Act appears to have been filed and properly made in law. Both parties are properly before this Board given the definitions of "party" found in Section 1(f) of the Environmental Appeal Board Regulation.(11) The Board therefore has jurisdiction to hear the appeal.

II. ENVIRONMENTAL PROTECTION AND ENHANCEMENT ACT

[47] Certain provisions of the Act have already been referred to earlier in this decision. For purposes of reaching our conclusion, the Board is mindful of the legislative alternatives given to the Board in reviewing the Director's decision. Section 90(3) states:

90(3) In its decision the Board may

(a) confirm, reverse or vary the decision appealed and make any decision that the Director whose decision was appealed could make, and

(b) make any further order the Board considers necessary for the purposes of carrying out the decision.

[48] In general, the Board believes that the Director's decision should be sustained if the discretion exercised by the Director in interpreting the regulations is supported by substantial evidence when based on a review of the whole record and the evidence before us. We recognize that the Director has been given a range of several thousand dollars in assessing penalties in the regulatory matrix and we defer to the expertise of the Department and its delegation of discretionary powers to assess a penalty, as long as we are satisfied that the Director:

1. made appropriate inquiries into the factual basis for the penalty;

2. stated in a written decision his findings of fact with considered reasons to support the penalty based on the regulatory matrix and associated discretionary factors;

3. that his reasons reflect a considered response to the evidence before him as well as the contention of the Appellant; and

4. that the Appellant had a reasonable opportunity including adequate notice to furnish relevant evidence to contradict the Department's evidence and to explain the facts from the Appellant's perspective.

[49] That said, the Board would consider changing or reversing the decision of the Director if the evidence before us did not in a particular case meet the goals of the Act, or if one of the above factors was neglected by the Director.

III. ADMINISTRATIVE PENALTIES

[50] One of the key purposes of the Act is the protection of the environment, which is essential to the integrity of ecosystems, human health and the well-being of society (Section 2(a)). The Act achieves these goals by creating both "criminal" penalties and, in this case, a "civil" penalty option.

[51] The Board believes Section 2(a) of the Act is confirmable by the assessment of civil penalties in appropriate cases, to ensure deterrence, some form of retribution, and restitution in the form of compensation or partial compensation for the expenses incurred by the government in the investigation of offences.

[52] The Board believes the amount of the penalty must reflect the regulatory matrix and associated criteria, the Board believes that to achieve the goal of deterrence, the penalty must also be high enough so that those who violate the law without reasonable excuse will not be able to "write off" the penalty as an acceptable trade-off for the harm or potential harm done to Alberta's environment.

IV. REVIEW OF THE DIRECTOR'S DECISION

[53] The Board finds that the Director made appropriate inquiries into the factual basis of the penalty. An investigation was launched to an appropriate level for the nature of the circumstances involved.

[54] The Board finds that the Director provided a written decision of his findings of fact and a list of considered reasons to explain the penalty based upon the regulatory matrix and associated discretionary factors.(12) The Director's determination of moderate potential for adverse effect was reasonable based on the evidence. This finding did not require a determination that the observed damage was solely the result of Mr. Ball's action.

[55] The Board finds that the Director's response to the evidence for consideration of steps one and two of the process was reasonable except for consideration of Mr. Ball's expectation that no harm would arise from his actions. This was listed as one of three positive compensating factors under consideration of the matter of mitigation of the consequences. The Board believes the compliance analyst erred in preparing this analysis. The other two considerations under the matter of mitigation, Mr. Ball's willingness to remediate any damage and his efforts to prevent any future incidents were sufficient to justify the $500.00 decrease in the base penalty. The sincere expectation of no harm from this action by Mr. Ball should have been applied under the consideration of the degree of wilfulness or negligence. In this case, the Board accepts that Mr. Ball's honest belief would properly balance the negative weighting given to the fact that he was recently trained and should have been very familiar that his actions were prohibited. According to this logic, the $500.00 increase in the base penalty from consideration of this factor would be neutralized.

[56] The Board finds that the Director provided a reasonable opportunity to the Appellant to present the facts from his perspective prior to fixing the final assessment, except for failing to provide access to the full investigative file. The mechanism of assigning an administrative penalty rather than pursuing a prosecution provides benefits of efficiency to both the Department and to the party assigned the penalty. Much higher investigative costs, case preparation costs and potential fines will accrue if a prosecution is pursued, inevitably raising the financial stakes forve penalties cannot be acquired at the expense of fairness to the assessed parties. The Appellant cannot be expected to anticipate the full scope of potentially helpful responses to the Director without being provided full access to the evidence available to the Director. The Board believes that access to the full investigative file would have had negligible effect on the merits of the penalty assigned under Section 34 (AR 126/96), given the agreed upon facts in this case, but such access may have facilitated a better discussion about the merits of the penalty under Section 99(1) of the Act.

[57] Based on evidence and arguments by the Appellant, the Board finds reasons against proceeding with a penalty for contravention of Section 99(1) of the Act. The Appellant questions the application of this Section, which refers to actions by:

"A person, other than the person having control of the substance, who releases or causes or permits the release of a substance into the environment..." (emphasis added)

[58] In this case, Mr. Ball was clearly the person having control of the substance and he was the person who released the substance. The Board agrees with Counsel for the Director that it is absurd for the person having control of the substance to be exempted from the reporting obligations of Section 99. However, a direct application of the wording of Section 99(1) to Mr. Ball appears to create that absurdity by referring to a person other than himself because he was in control of the substance.

[59] Section 99(2) of the Act would have clearly applied to Mr. Ball. Section 99(2) states:

99(2) The person having control of a substance that is released into the environment that has caused, is causing or may cause an adverse effect shall, immediately on becoming aware of the release, report it to the persons referred to in subsection (1)(a), (b) and (d) unless the person having control has reasonable ground to believe that those persons already know of the release. (emphasis added)

[60] The Director could have pursued a penalty for contravention of Section 99(2) to avoid the conflict created by the wording of Section 99(1) if the Director's legally trained compliance analyst had advised the Director of the difficulty posed by Section 99(1). While this may be viewed as a technicality, the Board notes that such technical errors commonly allow the discretion for the prosecution to stay proceedings or allow the courts to dismiss charges. In result, the Section 99(1) assessment is dismissed.

[61] The evidence in this case has established that Mr. Ball did not follow the requirements of Section 34 (126/96) because his disposal of pesticide rinsate was not performed in accordance with the Procedures for Pesticide Applicators. This finding does not require evidence of actual damage resulting from improper disposal.

[62] The Board finds that the Director was justified in applying an administrative penalty for contravention of Section 34. Given an initial penalty assessment of $2,500.00, modified downward by $1,500.00 for the reasons reviewed above yields a final assessment of $1,000.00.

[63] The Board finds that Mr. Ball's actions of improperly disposing pesticide rinsate resulted in costs to himself, to the Department and to the City of Camrose. Mr. Ball's willingness to take responsibility for his actions has been recognized and has justified substantial reduction of the penalty assigned. The Director discharged his responsibility to enforce the Environmental Protection and Enhancement Act and Regulations on behalf of the citizens of Alberta. Based on the evidence, the Board finds no grounds to award costs to Mr. Ball.

V. ORDER

A. Administrative Penalty

[64] The Appellant is ordered to pay $1,000.00 within 30 days.

B. Costs

[65] No award of costs.

Dated on June 6, 1997, at Edmonton, Alberta.

Dr. Steve E. Hrudey
Dr. John P. Ogilvie
Mr. Ron Peiluck

 


Footnotes

1. EAB decision on Appeal No. 96-078 Superior Vet and Farm Supply.

2. Exhibit 3 - Statement Signed by Donald Ball Re: Spill at EQ3 (Camrose Airport).

3.  Exhibit 4 - Statement with Attachment (Field Spray Record) dated October 21, 1996.

4. Exhibit 3 - Statement Signed by Donald Ball Re: Spill at EQ3 (Camrose Airport).

5.  Alta. Reg. 143/95 as amended.

6. Exhibit 13 - Letter Dated November 26, 1996, signed by Wayne Boyd. Re: Herbicide Spray Drift Damage on the NE of 31-42-12-W4.

7. Evidence of Mr. W. Boyd

8. Exhibit 22 - Administrative Penalty Assessment Form - Date Levied: January 24, 1997.

9. Exhibit 22 - Administrative Penalty Assessment Form - Date Levied: January 24, 1997.

10. Contravention of Section 34, AR 126/96.

11. Environmental Appeal Board Regulation 114/93.

                In this Regulation

(f)"party" means

(i) the person who files a notice of objection that results in an appeal,

(ii) the person whose decision is the subject of the notice of objection, and

(iii)any person who the Board decides under section 9(2) should be allowed to make representations in respect of the subject matter of the notice of objection.

12. Exhibit 22 - Administrative Penalty Assessment Form - Date Levied: January 24, 1997.

 

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