Richard Yntema v. Director, Environmental Management Act

Decision Date: November 29, 2021

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – ss. 115, 109(6); Code of Practice for the Slaughter and Poultry Processing Industries - ss. 3, 5(c), 6; Administrative Penalties (Environmental Management Act) Regulation – s. 7; contravention; administrative penalty; slaughter facility; producing records for inspection

Richard Yntema (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 Director levied a $6,300 penalty against the Appellant for contravening section 109(6) of the Environmental Management Act (the “Act”) by failing to produce records to an inspector.

The Appellant is the sole proprietor of a slaughter facility (the “Facility”) in Enderby, British Columbia. The Facility processes meat for consumption by local clients and for sale to the public. The Code of Practice for the Slaughter and Poultry Processing Industries (the “Code”) regulates the discharge of waste by the slaughter facilities. In 2010, the Ministry accepted the Appellant’s application to register the Facility under the Code. Registration meant that the Facility was authorized to discharge waste in accordance with the Act and the Code. Under sections 5 and 6 of the Code, the Appellant had to keep records of the amount of wastewater discharged per day, and meat or poultry produced per year, at the Facility.

Inspections of the Facility during 2013 to 2018 identified non-compliance with certain requirements in the Code. The Appellant was repeatedly told that he needed to measure and record the Facility’s wastewater discharge and meat/poultry production. He either did not keep, or refused to produce, those records. Inspectors warned the Appellant that non-compliance with sections 5 and 6 of the Code may lead to enforcement action.

In early 2019, an Environmental Protection Officer (“EPO”) with the Ministry requested that the Appellant provide the records required under the Code. The EPO warned that failure to provide the records in a timely manner may result in penalties for contravening section 109(6) of the Act and sections 5 and 6 of the Code. The Appellant did not respond.

In July 2019, the EPO notified the Appellant that he had breached section 109(6) of the Act by failing to produce the records, and the matter was being referred for a penalty. In June 2020, the Ministry notified the Appellant that a penalty of $6,300 was being considered for contravening section 109(6) of the Act. The Appellant was given an opportunity to make submissions before a penalty was issued.

In November 2020, the Director issued the determination and levied a $6,300 penalty against the Appellant for contravening section 109(6) of the Act.

The Appellant appealed the determination. The Appellant questioned the Code’s applicability to the Facility. He also submitted that the penalty was excessive, he had no way to measure the Facility’ wastewater discharge, and he would be forced to close the Facility. He asked the Board to rescind or reduce the penalty.

The Board found that although the Facility was built before the Code came into effect, the Facility produces wastewater, and therefore, it must be registered under, and comply with, the Code. Although the Appellant may have to redesign the drainage system at the Facility to be able to measure its wastewater discharge as required by section 5(c)(i) of the Code, he was alerted to this when the Facility was registered in 2010. In addition, although the Appellant kept some records of the Facility’s meat/poultry production as required under section 5(c)(ii) of the Code, and he declined to produce those records for inspection.

The Appellant was reminded and warned numerous times of his obligation to comply with section 5(c) of the Code. He had considerable time to comply, but he failed to do so. The Appellant failed to produce the necessary records for inspection as required under both section 109(6) of the Act and section 3(b) of the Code.

Given that the requirement to produce records for inspection in section 3(b) of the Code is similar to section 109(6) of the Act, the Board agreed with the Ministry’s decision to enforce only one of those sections. However, based on the facts in this case, the Board held that it would be more appropriate to levy a penalty for contravening section 3(b) of the Code, than for contravening section 109(6) of the Act. Section 3(b) of the Code specifically applies to slaughter facilities such as the Facility, whereas section 109(6) of the Act imposes a general requirement to produce records for inspection. Further, the $10,000 maximum penalty for contravening section 3 of the Code was more appropriate than the $40,000 maximum penalty for contravening section 109(6) of the Act, given that this was the Appellant’s first penalty.

Next, the Board considered the factors in section 7 of the Administrative Penalties (Environmental Management Act) Regulation. The Board generally agreed with the Director’s consideration of those factors, but the Board reduced the penalty to reflect the maximum penalty of $10,000 for contravening section 3 of the Code instead of the $40,000 maximum for contravening section 109(6) of the Act. In addition, the Board reduced the penalty by 25% based on the Ministry’s policy that penalties for individuals and small operators should be lower than for companies.

In conclusion, the Board varied the penalty by reducing it to $3,525, and allowed the appeal, in part.