Implementation guidelines for Environmental Emergency Regulations: chapter 3

6.0 Notification of environmental emergencies

According to section 193 of the Canadian Environmental Protection Act, 1999 (CEPA), an environmental emergency means:

1. an uncontrolled, unplanned or accidental release, or release in contravention of regulations or interim orders made under this Part [Part 8 of CEPA], of a substance into the environment, or
2. the reasonable likelihood of such a release into the environment

Section 201 of CEPA requires that, when an environmental emergency occurs in respect of any of the substances listed on Schedule 1 of the Environmental Emergency Regulations (E2 regulations), any person who owned or had the charge, management or control of the substance immediately before the environmental emergency, or any person who caused or contributed to the environmental emergency, shall, as soon as possible, notify an enforcement officer or any other person designated by regulation and provide a written report.

For the purposes of section 201 of CEPA,

• a verbal notification is to be made as soon as possible in the circumstances to the authorities identified in the Release and Environmental Emergency Notification Regulations^{Footnote 6} (notification regulations) under CEPA, which provide the regulated community and the public with the telephone number of the 24-hour authorities operating for the respective province or territory to which notifications are to be made
• a written report should be made as soon as possible under the circumstances to the relevant authorities

Information on what a written report must include and to whom it must be sent can be found in section 9 of the E2 regulations and in Appendix 7. Appendix 7 also provides a recommendation on information to be included in the verbal notification and the telephone numbers to call when a release or an environmental emergency occurs.

A person that is required to notify Environment and Climate Change Canada must take all reasonable measures consistent with the protection of the environment and public safety, including preventing, mitigating or recovering from any negative effects on the environment or on human life or health. The person must make a reasonable effort to notify any member of the public who may be adversely affected by the environmental emergency.

7.0 Access to submitted notices

7.1 Public access

Information on facility location is available to the public under the “search E2 database” section of the environmental emergencies program web page. However, in order to comply with existing federal legislation related to confidential business information and national security considerations, some detailed information about chemical substances, such as the exact quantities and location of the chemicals, is not available on the website. In concert with the Canadian Security Intelligence Service (CSIS), steps have been taken to manage the sensitive information provided in the notices in a way that does not place Canadians at risk through access to such information by potential criminal or terrorist elements.

7.2 Access for first responders

To the extent that such access is legally permissible, and on a need-to-know basis only, first responders may request public safety authority to access sensitive environmental emergencies database information that is classified for either confidential business or national security reasons. First responders may obtain this access by registering under  the “Public Safety Authorities” section of the environmental emergencies program web page.

8.0 Compliance and enforcement

Environment and Climate Change Canada (ECCC) evaluates the accuracy and completeness of the notices and reports submitted under the E2 regulations. This evaluation assists the department in determining:

• whether the regulatee must submit E2 plan reports and notifications
• when the regulatee must submit E2 plan reports and notifications
• whether Environment Canada should refer possible situations of non-compliance to enforcement officers for investigation

As part of an ongoing monitoring process, ECCC may request that copies of E2 plans be submitted to the department for review. Such action will help ECCC determine whether departmental guidance on environmental emergency planning is adequate and being properly interpreted. An ongoing auditing of E2 plans is also necessary to assess the effectiveness of the E2plans in protecting Canadians’ safety and security.

Investigation of possible non-compliance

Enforcement officers apply the compliance and enforcement policy for CEPA when verifying compliance with the E2 regulations. This policy sets out the range of possible responses to alleged violations: warnings, directions, environmental protection compliance orders (EPCOs), ticketing, ministerial orders, injunctions and prosecution, as well as environmental protection alternative measures (EPAMs).

For the purposes of enforcing the E2 regulations under section 218 of CEPA, enforcement officers are authorized to enter places and inspect E2 plans and any other relevant record in order to confirm compliance with the E2 regulations.

When an enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following factors:

• Nature of the alleged violation: This includes the consideration of how serious the harm or potential harm is, what the reason of the alleged violation is, whether this is a repeated occurrence and whether attempts have been made to conceal information or otherwise subvert the objectives and requirements of the CEPA.
• Effectiveness in achieving the desired result with the alleged violator: The desired result is compliance with the CEPA, within the shortest possible time and with no further occurrence of violation. Factors to be considered include:
  • the violator’s history of compliance with the CEPA and, if applicable, with regulations by a provincial, territorial or Aboriginal government that are deemed, by order in council, to be equivalent to those under the act
  • willingness to co-operate with enforcement officers
  • evidence of corrective action already taken
  • the existence of enforcement actions under other statutes by other federal authorities or by provincial, territorial or Aboriginal governments as a result of the same activity
• Consistency in enforcement: Enforcement officers strive to achieve consistency in their responses to alleged violations. Accordingly, officers consider how similar previous situations were handled when deciding what enforcement action to take.

9.0 Summary of the risk evaluation framework

This section introduces the evaluation methodology that ECCC has developed and is using to evaluate the properties of chemical substances that would prove hazardous in the event of an environmental emergency, and to calculate the threshold quantity for substances listed in Schedule 1 of the E2 regulations.

The risk evaluation framework (REF) is designed to:

• evaluate the risk posed by a substance to the environment and human health
• determine the need to add this substance to Schedule 1 of the E2 regulations, based on the risk evaluation results obtained
• calculate the minimum quantity (the threshold) for substances listed in Schedule 1 of the E2 regulations

Section 200 of CEPA is the authority that allows the Governor in Council to make regulations establishing a list of substances that, should they enter the environment as a result of an environmental emergency, might be harmful to the environment, or to human life or health. Section 200 also gives the Governor in Council the authority to prescribe a minimum quantity for these substances.

In 2003, when the E2 regulations were published, the REF had not yet been developed. As a result, the substances in Schedule 1 (parts 1 and 2) were adopted from the Major Industrial Accidents Reduction Council (MIARC). These thresholds, therefore, were not generated by the REF. The rationale for the MIARC list focused almost entirely on human health and safety criteria (MIARC 2002; J.P. Lacoursière Inc. 2002). The first amendment to the E2 regulations added substances from the Toxic Substances List (CEPA), and other substances of concern.

The regulated list is not a static one. ECCC continues to assess CEPA substances and other substances of concern (reactives, pesticides, petroleum, biologics, etc.) for possible inclusion in the E2 regulations. As part of this ongoing process, substances may be added to or removed from Schedule 1 of the E2 regulations, or thresholds may be adjusted if new data show such adjustments to be warranted.

Please see Appendix 9 for examples of these calculations.