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

5.0 Application of Section 199


5.1 Section 199

Subsection 199(1) of CEPA 1999 authorizes the Minister of the Environment to require any person or class of persons to prepare and implement an environmental emergency plan respecting the prevention of, preparedness for, response to and recovery from an environmental emergency for substances on the List of Toxic Substances in Schedule 1 of CEPA 1999 and substances the Ministers of the Environment and Health have recommended or ordered to be added to Schedule 1 of the Act. However, as previously mentioned, section 200 was identified as the main regulatory tool for the prevention of environmental emergencies, and section 199 would be used only in the event that more expeditious action is required. The following information is provided in order to offer guidance in the event that a section 199 notice might be issued.

5.2 Requirements for Environmental Emergency Plans - CEPA Subsection 199(1)

According to CEPA 1999 subsection 199(1):

The Minister may at any time publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons described in the notice to prepare and implement an environmental emergency plan respecting the prevention of, preparedness for, response to or recovery from an environmental emergency in respect of

  1. a substance or group of substances on the List of Toxic Substances in Schedule 1; or
  2. a substance or group of substances in relation to which there has been published in the Canada Gazette
    1. a statement of the Ministers under paragraph 77(6)(b) indicating that the measure that they propose to take, as confirmed or amended, is a recommendation that the substance be added to the List of Toxic Substances in Schedule 1, or
    2. a copy of an order proposed to be made under subsection 90(1).

Rationale

The Minister may require a person or class of persons to prepare an environmental emergency plan for a substance that is on the List of Toxic Substances or has been recommended or ordered to be added to the List. A notice published in the Canada Gazette must indicate the recommendation of a substance's addition to the List of Toxic Substances before an environmental emergency plan may be required for that substance under section 199. Note that the requirement for environmental emergency plans can occur only in relation to those aspects of an environmental emergency that:

  1. have or may have an immediate or long-term harmful effect on the environment;
  2. constitute or may constitute a danger to the environment on which human life depends; or
  3. constitute or may constitute a danger to human life or health in Canada.

Although the frequent use of section 199 Canada Gazette notices is not anticipated, their publication, as with section 200 of CEPA 1999, would require that any person who owns or has the charge, management or control of the particular CEPA toxic at or above the specified threshold quantity prepare and implement environmental emergency plans. The same timelines would apply, as with section 200; however, given that section 199 was created in conjunction with pollution prevention planning, some differences do arise. Unlike section 200, section 199 allows for the official request of time extensions, although these must be reviewed and approved by the Minister before they are permitted. As per the pollution prevention timelines identified in subsection 58(3) of CEPA 1999, any information submitted under section 199 that becomes false or misleading requires Environment Canada to be notified within 30 days of the change, rather than the 60 days identified by the Environmental Emergency Regulations. In most cases, when a CEPA toxic is determined to require an environmental emergency plan under section 199, it will be added to the list of substances under the Environmental Emergency Regulations and subject to its requirements.

Guidance

a. Factors that may be taken into consideration when determining which toxic substances should be subject to the requirements of section 199

The Department may make a recommendation to the Minister that an environmental emergency plan should be required following the criteria mentioned above. At any time, the Minister may require that environmental emergency plans be prepared and implemented for substances already placed on Schedule 1 of the Act or substances recommended or ordered for addition to the List of Toxic Substances. Information about CEPA 1999 and the substances on Schedule 1 is available from the website.

For materials or mixtures that contain substances declared toxic under CEPA 1999, the requirement to prepare and implement an environmental emergency plan specific to the toxic substance may depend upon several factors (e.g., the concentration of the substance or the volume of the material). Given that the intent of section 199 is to prevent harm from toxic substances, the requirement to prepare and implement an environmental emergency plan specific to the toxic substance will be made on a case-by-case basis.

b. Factors that may be taken into consideration when determining when an environmental emergency plan would be required under section 199

For substances on the List of Toxic Substances in Schedule 1, the Minister may take the following factors into consideration when determining whether an environmental emergency plan would be required:

  • whether the substance is currently imported, manufactured, used or stored in Canada;
  • whether the management option for the substance includes the requirement for an emergency plan outlining preventive, control or remedial measures (or equivalent) that adequately address prevention of, preparedness for, response to and recovery from an environmental emergency; and
  • for all other commercial, manufacturing, processing or other activities from which the Minister is satisfied that the uncontrolled, unplanned or accidental release of the toxic substance:
    1. has or may have an immediate or long-term harmful effect on the environment;
    2. constitutes or may constitute a danger to the environment on which human life depends; or
    3. constitutes or may constitute a danger to human life or health in Canada.

For regulatees with several facilities or places where toxic substances are located, an environmental emergency plan specific to each location may be required. As with section 200, these plans must address prevention, preparedness, response and recovery for an uncontrolled, unplanned or accidental release of a toxic substance at that location. For each location, a declaration of identification of substance and place, preparation and implementation must be submitted, and a site-specific environmental emergency plan must be prepared and kept at that location.

5.3 Emergency Management during Interim Periods

The Minister of the Environment may require an environmental emergency plan for substances the Ministers of the Environment and Health have recommended:

  • under paragraph 77(6)(b) that the Governor in Council add to Schedule 1 of the Act; or
  • under subsection 90(1) that the Governor in Council make an order adding the substance to Schedule 1 of the Act.

This plan may be required as a temporary instrument for the interim period until risk management measures that address environmental emergencies are implemented satisfactorily; however, nothing precludes the environmental emergency plan from being used as a permanent risk management tool for a substance. Substances determined to require environmental emergency plans under section 199 will most likely be proposed for addition to the section 200 regulated list.

5.4 Extensions of Time - CEPA Subsection 199(3)

CEPA subsection 199(3) states that where the Minister is of the opinion that further time is necessary to prepare or implement the plan, the Minister may extend the period for a person who submits a written request before the expiry of the period referred to in the notice or of any extended period.

Rationale

Unlike section 200, persons affected by a section 199 Canada Gazette notice have the option of requesting an extension for the time needed to submit their declarations of identification of substance and place, preparation and implementation. Subsection 199(3) gives the Minister the authority to extend the time limit set in a notice made under subsection 199(1) when a written request for an extension is submitted before the end of this limit or another extension and the Minister believes that extra time is necessary.

Guidance

In general, the Minister will provide a period of 90 days after the publication of a subsection 199(1) notice for the declaration of identification of substance and place to be filed, where the quantity and location of the substance are identified. The preparation of environmental emergency plans is to be completed within six months of the notice, and a further six months is provided for completion of the implementation of the plan. In order for the Minister to decide whether an extension should be granted, a request must be submitted to the Minister prior to the end of the time limit set in the notice. The Minister must be of the opinion that further time is necessary.

5.5 Application of Provisions

Persons required to prepare an environmental emergency plan under section 199 must submit three types of declarations to the Minister, as explained in section 2.1 of these Guidelines.

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