The Environmental Emergency Regulations, effected under section 200(1) of the Canadian Environmental Protection Act (CEPA) and in force since August 24, 2019, implement new reporting and environmental emergency planning requirements involving certain hazardous substances for “higher-risk” onshore  facilities across Canada. Replacing the prior Environmental Emergency Regulations, the federal government drafted the new Regulations “intending to improve industry’s capacity to deal with environmental emergencies”. The new Regulations expand both the number of substances to which they apply and the regulatory requirements of persons responsible for those substances. Those to whom the new regulations apply as at August 24, 2019, must comply with the new Regulations by the following deadlines:

• Submit notification of information about the substances at the facility by November 22, 2019.
• Prepare an environmental emergency plan and submit notice of it by February 24, 2020.
• Put the plan into effect by August 24, 2020.
• Carry out the first yearly simulation on or before August 24, 2020.

To help prepare, here’s a look at the scope of the new Regulations and its five key requirements.

Scope

These key definitions determine the scope of the new Regulations in terms of to whom and to what the new requirements apply:

“Responsible Persons”. The Regulations impose requirements on “responsible persons”, a new term the Regulations define as any person (either a natural person or a corporation) who owns or has the charge, management or control of a “substance” located at a “facility”.

“Facility”. The Regulations define a facility as “property on which one or more fixed onshore installations are located and where a substance is present”.

“Substance”. The Regulations define a “substance” for the purposes of both the Regulations and the “Environmental Matters Related to Emergencies” provisions of CEPA (section 193) as both of the following (section 2(1)):

• The substances assigned an identification number by the Chemical Abstracts Service (CAS), with such number being set out in column 1 of Part 1 of Schedule 1 of the Regulations and that, if present in a mixture, are in a concentration that is greater than or equal to the concentration set out in column 3 of that Part.
• The solutions assigned a CAS identification number, with such number being set out in column 1 of Part 2 of Schedule 1 of the Regulations, if the concentration of the solute in the solution is greater than or equal to the concentration set out in column 3 of that Part and, in the case of a solution that is present in a mixture, if the concentration of the solute in the mixture is greater than or equal to the concentration set out in column 3 of that Part.

The new Regulations change a number of the substances listed in Schedule 1, requiring a fresh look to determine whether a “substance” is located at a facility. The new Schedule 1 lists only substances that fall under the following hazard categories: aquatically toxic; combustible; explosion hazards; pool fire hazards; inhalation hazards; or oxidizers that may explode. Furthermore, the Regulations apply only to certain quantities and container sizes of a Schedule 1 “substance”.

Exemptions. The Regulations exempt certain “substances” from its requirements. For example, any substance regulated under the Transportation of Dangerous Goods Act or the Canada Shipping Act is exempt.

5 Key Requirements of the New Regulations

Here’s a summary of the five key requirements under the new Regulations.

1. Emergency Plan

The core of the Regulations is the requirement that responsible persons implement plans to ensure they are prepared to prevent and minimize harmful effects in the event of an environmental emergency. Facilities that have reported that substances exceed the levels set out in section 4(1) of the Regulations must prepare an emergency plan. While it is possible to reuse an existing emergency plan to satisfy the Regulations, it is prudent to review that plan to ensure it fulfills all the requirements the new Regulations mandate and update it if required to do so.

Plan Contents. The emergency plan must:

• Identify any environmental emergency that could “reasonably be expected to occur at the facility” and that “would likely cause harm to the environment or constitute a danger to human life or health”.
• Contain all other relevant information set out at section 4(2) of the Regulations, including a description of the facility and surrounding areas, and steps to communicate with the public in the event of an environmental emergency.
• Be reviewed and, if necessary, be updated every year.

Events. The emergency plan must include a plan for all environmental emergencies that could reasonably be expected to occur at the facility and are likely to result in harm to the environment or danger to human life or health. Two such emergency “events” that each plan must address are:

• A “Worst-Case Release Event”. An environmental emergency involving the release of either: the maximum quantity of the substance that could be contained in the container system with the largest maximum capacity, if a quantity of the substance is in a container system; or the maximum expected quantity of the substance that will not be in a container system, if a quantity of the substance is not in a container system.
• A “Worst-Case Impact Range Event”. An environmental emergency that is more likely to occur than a Worst-Case Release Event and would have the longest impact distance outside the boundary of the facility, if applicable.

Plan Deadlines. A responsible person must prepare the environmental emergency plan within six months, and bring it into effect within 12 months, from the day on which they become obligated to create such a plan, as outlined in section 4(1) of the Regulations. A responsible person must subsequently update and review the environmental emergency plan at least once a year. Those required to prepare an emergency plan as of the date the Regulations came into force must prepare a plan by February 24, 2020 and bring it into effect by August 24, 2020.

2. Simulations

Responsible persons must put their plans to the test by carrying out yearly simulations of emergency events listed in the emergency plan:

Hazard Category Substances. A responsible person must conduct a yearly simulation exercise for one substance falling under each of the following hazard categories: substances that are aquatically toxic, combustible, explosion hazards, pool fire hazards, inhalation hazards, or oxidizers that may explode. The simulation must use a different substance every year until all the substances identified in the plan have been tested. However, a yearly simulation is not required during years in which a Worst-Case Event or a Worst-Case Impact Range Event simulation is carried out. These simulation exercises must be completed on the date the environmental emergency plan is brought into effect, and every year thereafter. For facilities with substances falling under the new Regulations on the date they took effect, a simulation must be carried out on or before August 24, 2020.

Worst-Cases. A responsible person must carry out a Worst-Case Event or a Worst-Case Impact Range Event simulation for one substance every five years.

3. Notices

The Regulations require a responsible person to provide numerous notices to the Minister of Environment at various times, including all of the following:

• Notice containing information where the amount of a substance reaches certain levels or is placed in a container with certain volumes, within 90 days of reaching those levels or placing substances in such a container.
• Notice of change of certain information that has previously been reported, within 60 days of such change.
• Notice of preparation of plan, within 6 months of being required to prepare a plan.
• Notice of bringing Emergency Plan into effect, within 12 months of being required to prepare a plan.
• Notice of simulation exercises conducted, within 5 years after the day on which a plan is brought into effect, and within 5 years of their most recent simulation submission.

Those that, before August 24, 2019, already had substances at levels or contained at volumes equal to or greater than those allowed by section 3(1) of the Regulations must submit the required notices by these deadlines:

• Notice containing information on or before November 22, 2019.
• Notice of preparation of plan on or before February 24, 2020.
• Notice of bringing Emergency Plan into effect within 5 years of their most recent simulation submission, and by August 24, 2025 at the latest.
• Notice of simulation exercises conducted on or before August 24, 2020.

5. Environmental Emergencies

The Regulations serve to qualify and clarify the requirements respecting remedial measures in the event of an environmental emergency as detailed in section 201(1) of CEPA, breach of which constitutes an offence.

Written Report. CEPA requires any party that owns, manages or controls a substance immediately before, or that causes or contributes to, the environmental emergency to notify an enforcement officer (or other designated person) and provide a written report on the environmental emergency to that officer or person. However, the Regulations clarify that only environmental emergencies with one of these elements trigger these notification and reporting requirements:

• Has or may have an immediate or long-term harmful effect on the environment.
• Constitutes or may constitute a danger to the environment on which human life depends.
• Constitutes or may constitute a danger in Canada to human life or health.

Schedule 8 of the Regulations also clarify the criteria for submitting the report required by section 201(1)(a) of CEPA and the information it must contain. Reports of events pertinent to section 201(1)(a) of CEPA must be provided to an enforcement officer or the Regional Director, Environmental Enforcement Directorate, Enforcement Branch, Department of the Environment, in the region where the environmental emergency occurs.

Reasonable Measures & Remediation. Section 201(1)(b) of CEPA also requires any party that owns, manages or controls a substance immediately before, or that causes or contributes to, the environmental emergency to take reasonable measures to prevent, and to repair, reduce, and mitigate the negative results of, environmental emergencies. Section 12 of the Regulations stipulates that failure to carry out the steps set out in an environmental emergency plan constitutes failure to carry out the duties required under section 201(1)(b) of CEPA.

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Please contact your McInnes Cooper lawyer or any member of the Energy & Natural Resources Team @ McInnes Cooper to discuss this topic or any other legal issue.