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ARCHIVED - Implementation Guidelines for Part 8 of the Canadian Environmental Protection Act, 1999 – Environmental Emergency Plans

3.0  Application of Section 200


3.1 Section 200

Section 200 of Part 8 is the regulation-making authority of CEPA 1999, which allows the Government of Canada to establish a list of substances that, if they enter the environment as a result of an environmental emergency, may harm the environment and its biological diversity, human life or health or the environment on which human life depends. An environmental emergency plan is required for any substance identified in the Regulations under section 200 that is stored or used in an amount at or above the threshold quantity in a container exceeding the specified threshold (see Appendix 4).

The primary objective for requiring environmental emergency planning under section 200 is to ensure that appropriate risk management measures are adopted and implemented for hazards associated with the manufacture, storage and use of hazardous substances in Canada.

3.2 Requirements for Environmental Emergency Plans - CEPA 1999 Subsection 200(1)

Subsection 200(1) of CEPA 1999 states:

The Governor in Council may, on the recommendation of the Minister and after the Committee is given an opportunity to provide its advice to the Minister under section 6, make regulations

  1. establishing a list of substances that, if they enter the environment as a result of an environmental emergency,
    1. have or may have an immediate or long-term harmful effect on the environment or its biological diversity,
    2. constitute or may constitute a danger to the environment on which human life depends, or
    3. constitute or may constitute a danger in Canada to human life or health;
  2. prescribing, in respect of a substance on the list established under paragraph (a), a minimum quantity;
  3. respecting the identification of the places in Canada where a substance referred to in paragraph (a), in any quantity or in the quantity prescribed for that substance under paragraph (b), is located and requiring notification to the Minister of those places;
  4. respecting the prevention of, preparedness for, response to and recovery from an environmental emergency in respect of a substance;
  5. respecting the notification and reporting of an environmental emergency;
  6. respecting the notification and reporting of the measures taken
    1. to prevent the environmental emergency, or
    2. to repair, reduce or mitigate any negative effects on the environment or human life or health that result from the environmental emergency or that may reasonably be expected to result from it;
  7. respecting the implementation of international agreements entered into by Canada in relation to environmental emergencies; and
  8. respecting any other matter necessary for the purposes of this Part.

Rationale

Section 200 allows the creation of a list of substances with specified threshold quantities.1 The Government of Canada may then require environmental emergency plans for all facilities that store or use any of these substances at or above the identified thresholds.

With the help of multistakeholder consultations, the Environmental Emergency Regulations were selected as being the best measure to protect the environment and human health from environmental emergencies. The authorities under Part 8 of CEPA 1999 provide a "safety net" to fill the gap where no similar federal legislation exists. For instance, regulations under the Transportation of Dangerous Goods Act, which also require the preparation and implementation of emergency response assistance plans for substances in transport, do not take into consideration the storage and use of toxic and other hazardous substances at fixed facilities. In some cases, however, the use of the Environmental Emergency Regulations may entail supplementing existing regulations or other instruments such as pollution prevention planning measures found in Part 4 of CEPA 1999.

In the interest of efficiency, multistakeholder consultation selected the list of hazardous chemicals developed by the Conseil pour la réduction des accidents industriels majeurs (CRAIM) as the best starting point for the Environmental Emergency Regulations. CRAIM, the Montreal chapter of the now-defunct Major Industrial Accidents Council of Canada (MIACC), prepared a list of toxic and hazardous substances based on different sources, such as MIACC's Lists 1 and 2 as well as the U.S. Environmental Protection Agency's Risk Management Program list. During consultations, there was agreement among stakeholders to utilize the list of substances and thresholds prepared by CRAIM as the basis for the drafting of the Environmental Emergency Regulations. Some of the nomenclature used in the original CRAIM list was modified to match those names most commonly used, as listed under the Transportation of Dangerous Goods Act. In spite of this, the entire Transportation of Dangerous Goods Act list was not adopted for the Environmental Emergency Regulations, as the Transportation of Dangerous Goods Act threshold quantities were intended to capture smaller-quantity transported substances. Such quantities were considered too small to capture storage and chemical facilities covered by the Environmental Emergency Regulations.

The use of United Nations identification numbers (UN numbers) as well as the Chemical Abstracts Service Registry numbers (CAS numbers) and the classification of substances as flammable or other hazardous are identified as necessary for greater public understanding and clear communication of the regulated substances. Periodic review and reevaluation of the regulated list will be undertaken by Environment Canada to ensure the best possible protection of the environment and human health.

Guidance

  1. Factors that have been considered when determining which toxic and other hazardous substances should be subject to the requirements of section 200

The Government of Canada has taken the following factors into consideration when determining whether to publish a notice requiring the preparation and implementation of environmental emergency plans:

  • toxicity and/or other hazardous properties of the substance;
  • physical properties of the substance;
  • the quantity of the substance in commercial use or storage in Canada to determine potential for exposure;
  • historical data relating to uncontrolled, unplanned or accidental releases of these substances (i.e., frequency and severity of spills);
  • data regarding toxic substances that, when released into the environment, present an immediate or long-term harmful effect to the environment, a danger to the environment on which human life depends or a danger to human life or health;
  • whether the risks posed by these substances are being adequately managed by existing federal or provincial regulations or legislation. This may involve an examination of whether or not these regulations/legislation achieve or take into account the environmental goal of preventing, preparing for, responding to or recovering from a sudden, unplanned or accidental release of the substance. In the event that regulations/legislation have not yet been developed for specific substances, this information may also be incorporated into the assessment process;
  • review of existing regulations/legislation to avoid duplication; and
  • results of Environment Canada's risk evaluation framework analysis.

Environment Canada has developed a rationale for inclusion of the current 174 substances listed on Schedule 1 of the Environmental Emergency Regulations. The justification for their specified threshold quantities is also provided. Since this list is essentially a combination of substances from two sources (U.S. Environmental Protection Agency's Risk Management Planning Rule and the former MIACC), the criteria used in making the original selections by those organizations are outlined. This document can be found on Environment Canada's Environmental Emergencies website.

Hazardous substances were included on the list based on their toxicity, physical state, vapour pressure and accident history. The minimum vapour pressure for hazardous chemicals to be included on the list is 10 millimetres of mercury (mmHg). Hazardous liquids with a vapour pressure of 10 mmHg or higher under ambient conditions will vaporize, presenting a significant risk to human life and health and to the environment. It was felt that, for the purposes of these Regulations, toxic substances with lower vapour pressures will not readily vaporize and therefore do not pose a significant risk when released during an environmental emergency.

Flammable gases and volatile flammable liquids were also included on the list based on the flash point and boiling point criteria used by Transportation of Dangerous Goods Clear Language Regulations - e.g. a flash point below 23°C and a boiling point below 35°C. Flammable substances fulfilling the Transportation of Dangerous Goods criteria will rapidly or completely vaporize at atmospheric pressure and normal ambient temperature or are easily dispersed in air and will burn readily. Only those substances in commercial production or use were listed.

Some chemicals are considered both hazardous and flammable. The ranking process took both criteria into account, and the threshold quantity was set in accordance with the toxic index that was calculated. Toxic and flammable chemicals that had a toxic index that would have resulted in threshold quantities in excess of 10 000 pounds were defaulted to the 4.50 tonne (10 000 pounds) threshold used for most of the flammable substances.

The regulated list is not a static one. As the rationale for the CRAIM list was focused almost exclusively on human health and safety issues, Environment Canada has refined the datagathering guidelines, the risk evaluation framework and the rationale by integrating environmental considerations in keeping with the goals of CEPA 1999: the mutual protection of both the environment and human health. In order to determine if an environmental emergency plan is required, Environment Canada used the risk evaluation framework, which is an unbiased scoring system using chemical, physical and health impact parameters as inputs. Economic inputs were also considered in the evaluation of each material. The abovementioned reports are currently available on Environment Canada's Environmental Emergencies website.

The section 200 list of hazardous substances currently contains 16 materials that were classified as toxic under CEPA 1999. Following promulgation, Environment Canada will continue to assess the remaining CEPA toxics and other substances of concern (e.g., reactives, pesticides, biologics, ammonium nitrate, etc.) for possible inclusion on the section 200 list. As part of this ongoing process, substances may be added to or dropped from the current list or thresholds adjusted if new data show that to be warranted.

b. Factors that have been considered when determining who will have to prepare and implement an environmental emergency plan under section 200

Unless specifically exempted, an environmental emergency plan is required of any person who owns or has the charge, management or control of any of the regulated substances at or above the specified threshold quantities and that have a single largest container with a capacity equal to or exceeding the listed amount. If either the maximum expected quantity on site or the largest storage container exceeds the specified threshold quantity, but not both, the facility will be required only to fill out the first notice of identification of substance and place. The requirement to prepare and implement an environmental emergency plan will not apply. Specific exemptions are for:

  • all concentrations below those identified in column 2 of Schedule 1 of the Regulations;
  • vapour/partial pressure equal to or less than 10 mmHg for hazardous substances;
  • boiling point equal to or above 35°C for flammable substances;
  • flash point equal to or above 23°C for flammable substances;
  • quantities of the substance that are temporarily stored for 72 hours or less in a container not normally located at the place;
  • quantities of the substance in a container that has a maximum capacity of 30 kg or less;
  • quantities of the substance when it is a component of another regulated substance;
  • quantities of the substance when it is a component of natural gas, except if the natural gas is in liquefied form;
  • quantities of the substance in a fuel tank that supplies the engine of a conveyance that is used for transportation; and
  • quantities of a substance regulated under the Transportation of Dangerous Goods Act.

3.3 Application of Provisions

Persons required to prepare an environmental emergency plan under the Environmental Emergency Regulations must submit three types of notices to the Minister, as explained in section 2.1 of these Guidelines.

A plan will be considered implemented when it has been written and is operational to the point where the regulatee submitting the notice can expect to successfully deal with all aspects of an environmental emergency.

For regulatees with several facilities or places where hazardous substances are located, an environmental emergency plan specific to each location will generally be required. These plans must address prevention, preparedness, response and recovery for an uncontrolled, unplanned or accidental release of any regulated substance at that location. For each place (typically site or property), notices of identification of substance and place, preparation and implementation should be submitted, and a site-specific environmental emergency plan must be prepared, implemented and kept at that location. A single environmental emergency plan may deal with one or more substances but must address the full range of hazards present on the site. Separate documents can be prepared, but they must be readily available and kept in the same location.

If regulated substances are stored or used at a person's unmanned facilities that are subject to the Regulations, a copy of the plan need not be held at the place itself. However, it must be readily available for the individuals who are to carry out the plan in the event of an environmental emergency and for inspection by enforcement officers.

Under certain circumstances, the Minister may require the submission of all or part of a plan when it has been determined that there is a need to develop further risk management measures in relation to specific substances in the plan.


1 A threshold quantity for a given substance would normally be a number stipulating the mass stored, processed or otherwise present at any time at a fixed facility. An exclusion of all substances with concentrations of less than those identified in column 2 of Schedule 1, regardless of the threshold quantity, exists under the Environmental Emergency Regulations.

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