The Environmental Emergency Regulations, 2019 (the final regulations) were recently published in the Canada Gazette. They come into force on August 24, 2019, and until then, the Environmental Emergency Regulations (first published in 2003) are in force.
The objective of the Environmental Emergency Regulations, 2019 (the final Regulations) is to further enhance environmental emergency management in Canada. For instance, improved environmental emergency management has been introduced through the addition of hazardous substances to Schedule 1 of the Regulations. This addition requires reporting on these substances, environmental emergency planning for higher-risk facilities, and reporting of environmental emergencies involving these substances.
In addition, the final Regulations aim to clarify and strengthen existing regulatory requirements and to ensure that the information available to public safety organizations and the Department is reliable, in order to help in minimizing the frequency and consequences of environmental emergencies in Canada and further enhance environmental emergency management in Canada.
The government estimates that the final Regulations implicate an additional 200 businesses, along with the existing 4 800 regulated parties across Canada. Of these facilities, approximately 3,000 will be required to prepare, implement, exercise and update environmental emergency (E2) plans.
These regulations require that any person who owns, has the charge, management or control of a regulated substance at or above certain quantities notify Environment and Climate Change Canada (ECCC). For higher-risk facilities, an environmental emergency plan must also be prepared, brought into effect and exercised.
Under section 193 of CEPA 1999 an environmental emergency means an uncontrolled, unplanned or accidental release, or release in contravention of regulations or interim orders made under Part 8 of CEPA 1999, of a substance into the environment; or the reasonable likelihood of such a release into the environment.
Schedule 1 of the final regulations includes 249 substances that pose an acute hazard to the environment or to human health should an accidental release occur. There are six hazard categories covered under the final regulations:
- aquatically toxic
- explosion hazard
- pool fire hazard
- inhalation hazard
- oxidizer that may explode
E2 Plans must be prepared by any company that owns or that has the charge, management or control of a substance listed in Schedule 1 of the E2 Regulations at the threshold quantity listed. Those companies companies must prepare, implement, and test an E2 plan. ECCC must also be notified about the E2 Plan.
The complexity of E2 plans may vary depending upon the circumstances of the person required to prepare and implement a plan. Although the primary goal of preparing and implementing an E2 plan is to prevent emergencies from occurring, such advance planning is critical for preparedness, response and recovery activities in the event that an emergency does occur. In accordance with the E2 Regulations, the person must consider the following factors when preparing an environmental emergency plan:
- The properties and characteristics of the substance and the maximum expected quantity of the substance at the place at any time during a calendar year
- The commercial, manufacturing, processing or other activity in relation to which the plan is being prepared
- The characteristics of the place where the substance is located and of the surrounding area that may increase the risk of harm to the environment or of danger to human life or health
- The potential consequences of an environmental emergency on the environment and on human life or health.
As per the E2 Regulations, the environmental emergency plan must include the following:
- A description of the factors considered above
- The identification of any environmental emergency that can reasonably be expected to occur at the place and that would likely cause harm to the environment or constitute a danger to human life or health, and identification of the harm or danger
- A description of the measures to be used to prevent, prepare for, respond to and recover from any environmental emergency identified
- A list of individuals who are to carry out the actions described in the plan in the event of an environmental emergency, and a description of their roles and responsibilities
- The identification of the training required for each of the individuals listed
- A list of the emergency response equipment included as part of the E2 plan, and its location
- A description of the measures to be taken by the person referred to above to notify members of the public who may be adversely affected by an environmental emergency and to inform them of those measures and of what to do in the event of an environmental emergency
Environment Canada recommends that, while submitting information to fulfill the E2 Regulations requirements, regulatees consider a senior-level statement demonstrating their commitment to implementing and maintaining the E2 plan. They need to keep the plan current, comprehensive and effective (e.g., annual testing and updating of the plan). Appendix 1 of the Implementation Guidelines contains a list of suggested references to assist anyone having to develop an E2 plan.
Environment Canada strongly recommends that persons preparing an E2 plan include community and interest groups and local and provincial emergency authorities in the development and preparation of the plan, and also share the implemented plan with these persons.
Final Impacts on Business
ECCC commissioned a study on the financial impacts of the new regulations in 2014. The study found that the addition of the 33 additional substances to Schedule 1 of the final Regulations will result in some businesses having to prepare, bring into effect, exercise and update environmental emergency plans. Approximately 120 businesses will be required to prepare a new environmental emergency plan at an estimated unit cost of $14,000, while about 80 businesses will be required to update an existing plan at an estimated unit cost of $5,000.
The 2014 financial impact study also found that it will be necessary for the businesses preparing new environmental emergency plans to exercise their plans on an annual basis. In particular, a full-scale simulation exercise (action-based simulation exercise requiring the deployment of personnel, resources and equipment) will be required once every five years at each facility. The estimated cost for each full-scale simulation exercise will vary depending on the size of the facility in question, as follows: $3,000 for small-sized facilities; $5,000 for medium-sized facilities; and $10,000 for large-sized facilities. Simulation exercises (exercise simulating the response to an environmental emergency involving the release of a substance) will need to be conducted at each facility once per year during the four years that full-scale exercising is not conducted, at an estimated cost of $1,000 per exercise.