by Janice H. Walton, Blake Cassels & Graydon LLP
OCTOBER 27, 2017 – On October 30, 2017, amendments to the spill management regime that were made under the British Columbia Environmental Management Act (EMA) in 2016 will come into force. These amendments will implement a new spill reporting, preparedness and response process in B.C. (for more information, see our April 2016 Blakes Bulletin: B.C. Proposes to Significantly Broaden Requirements for Spill Reporting and Response). Additionally, the new Spill Reporting Regulation, as well as the Spill Preparedness, Response and Recovery Regulation and Spill Contingency Planning Regulation will become effective on October 30, 2017.
The 2016 EMA amendments created two categories of entities and established their consequent responsibilities in the event of spills to the environment: responsible and regulated persons. The provisions regarding responsible persons amend the triggers for reporting spills and expand the requirements of what needs to be done when spills occur. The regulated persons component of the amendments establishes the framework for new spill contingency planning and response to be carried out by specified industries.
This bulletin discusses the new spill reporting regime. A second bulletin detailing the spill contingency and response planning requirements will be published shortly.
RESPONSIBLE PERSONS: EXPANSION OF SPILL REPORTING AND RESPONSE
The EMA amendments apply new spill reporting and response requirements on all “responsible persons”, who are defined as any persons who have possession, charge or control of a substance when a spill of a substance or thing occurs, or there is an imminent risk of the spill occurring. A spill is defined as the introduction into the environment of any substance or thing that has the potential to cause adverse effects the environment, human health or infrastructure.
Under the amendments, every responsible person must, in accordance with the regulations:
- Report prescribed information
- Provide any information an officer requests respecting response activities
- Ensure persons with the skills, experience, resources and equipment necessary to properly deal with a spill arrive at a site within a prescribed period after a spill and implement an incident command system
- Assess, monitor and prevent the continuation of any threats or hazards caused by the spill
- Stabilize, contain, remove and clean up the spill
- Identify the immediate risks to the environment, human health or infrastructure and take steps to protect, recover and restore
- Evaluate long-term impacts of the spill
- Take steps to resolve or mitigate immediate and long-term impacts.
Like its predecessor of the same name (which is repealed), the new Spill Reporting Regulation prescribes the triggers for reporting of spills that have occurred or that are of imminent risk of occurring. There are now two occurrences that trigger spill reporting:
- The spill of a prescribed quantity of a substance listed on the Schedule to the Regulation. Notably, the list of substances and the quantities that trigger a spill report remain the same as the previous version of the regulation.
- The spill of any quantity of a substance on the Schedule that enters or is likely to enter a body of water.
While the removal of a quantity threshold for spills to water would appear to create a significantly conservative reporting trigger, to some extent, it aligns the provincial reporting more closely with the reporting required under section 38 of the federal Fisheries Act, although it applies to all bodies of water, not just those that are fish bearing. We note that the B.C. and federal governments recently renewed their agreement providing for spill reports to the province to be passed on to Environment and Climate Change Canada in fulfilment of Fisheries Act reporting requirements.
The government has also expanded the information requirements that must be provided. As of October 30, 2017, the following must be reported when a spill occurs:
- Verbal report: The responsible person must immediately call the Provincial Emergency Program. The information which must be reported includes the details required under the previous regulation, however, some of the elements have been expanded. For example, the report should include, where practicable, a description of the circumstances, cause and adverse effects of the spill and details of actions taken to comply with the new spill response requirements in the EMA. In addition, the requirement to report the names of all government agencies that are attending the spill site, or have been advised of the spill, has been clarified to include local, provincial, federal and First Nations’ governments.
As of October 30, 2018, the information that must be provided to the government will be significantly expanded to include prescribed written reports:
- 30-day reports: Written reports must be submitted as soon as practicable on the request of the Minister of Environment and Climate Change Strategy, or at least once every 30 days after the date the spill began, plus any time the responsible person has reason to believe that the information previously reported is either inaccurate or incomplete. The manner and form of the report will be specified by the minister. The 30-day reports must continue until the emergency response completion date has been reached. The emergency response completion date is the date after which the incident command post has been disestablished, the sources of the spill are under control, emergency actions have been taken, waste has been removed from the site, notices regarding evacuations have expired, and all emergency spill response equipment and personnel have been removed.
- End-of-spill report: An end-of spill report must be made to the minister within 30 days after the emergency response completion date. This incorporates much of the information required by the immediate verbal and 30-day written reports, as well as additional information, including details of the biological and other resources adversely affected. The report must also include descriptions of actions taken to respond and copies of data from, and reports of, any sampling, testing, monitoring and assessment carried out during the spill response actions.
The government may also order the responsible person to prepare and implement recovery plans to resolve or mitigate the impact of a spill. The Spill Preparedness, Response and Recovery Regulation prescribes the content of the recovery plan, including assessment of the impacts of the spill, identification of quantifiable targets for recovery, description of actions proposed to achieve the targets, analysis of alternatives, summary of engagement and consultation with directly affected local governments, First Nations, residents, businesses or recreational organizations, and a schedule for implementation.
If impacts of a spill cannot be completely restored, the government can order compensatory mitigation measures to be taken elsewhere, or payments to a “primarily not-for-profit” organization that must apply the funds to projects that will compensate for the damage caused by the spill.
In addition, the government has the authority to order a responsible person to submit a written report to the director on “lessons learned” from the spill response. Such orders must be made in writing within six months after the emergency response completion date.
The written reporting provisions do not apply to persons holding permits to carry out oil and gas activities to which the Emergency Management Regulations under the Oil and Gas Activities Act apply.
Many of the spill response steps specified in the regulations, such as assessment of long-term impacts, and post spill written reporting, have typically been carried out when large spill occurred in B.C. in the past. However, they occurred either under orders made by the regulators in consideration of the specific circumstances of the spill, under requirements in individual permits, or voluntarily. Under the EMA amendments, such activities will become requirements that apply to all reportable spills, no matter how small or inconsequential to the long-term health of the environment, potentially increasing the regulatory burden on industry and the government significantly. It is also unclear how, or even if, the written reporting under the EMA will be aligned with similar requirements under various federal legislation, such as the Fisheries Act, the Canadian Environmental Protection Act and the Transportation of Dangerous Goods Act.
Companies should ensure their environmental management systems are updated immediately to make certain that spill reporting triggers properly reflect the new requirement to report any quantity of the prescribed substances that are spilled into bodies of water, and to prepare themselves for the more extensive assessment and reporting that will be required for all spills after October 2018.
Blakes periodically provides materials on our services and developments in the law to interested persons.This article is for informational purposes only and does not constitute legal advice or an opinion on any issue. Blakes would be pleased to provide additional details or advice about specific situations if desired. For permission to reprint articles, please contact the Blakes Marketing Department at 416-863-4345 and © 2017 Blake, Cassels & Graydon LLP.