The British Columbia government is seeking further input on its proposed new regime for spill reporting, preparedness and response through the release of an intentions paper on April 5, 2016 and an open comment period until June 30, 2016. The proposed program is the government’s response to concerns around the potential impacts of spills from the two major oil pipelines currently proposed to cross the province, and promises to implement a “world class” spill preparedness and response regime. In doing so, the government has also expanded the requirements of what needs to be done when spills happen.
The intentions paper provides an overview of proposed changes to the Environmental Management Act (EMA) which were introduced to the legislature in February 2016. It also sets out what the government is considering for the regulations that will implement the system once the legislative amendments are passed.
PROPOSED AMENDMENTS TO ENVIRONMENTAL MANAGEMENT ACT
Bill 21, the Environmental Management Amendment Act, 2016 was introduced to the legislature on February 29, 2016. If passed and brought into force, the amendments will broaden the requirements for spill planning and response, and add to the box of tools available to the government for enforcement, including new and higher fines for failing to report or respond to spills.
These changes will have a particularly significant impact upon those who handle “prescribed substances” who will be required to pay for and implement area-based spill response plans. However, the amendments also include other new spill reporting and response requirements, which will affect all entities or individuals that cause spills of substances or “things” and that will likely result in a much heavier burden in terms of what has to be done when and after there is a spill.
PROVINCEWIDE SPILL PREPAREDNESS AND RESPONSE
A key amendment proposed to the EMA creates a new category of “regulated persons” who will have significant responsibility of the implementation of the new provincewide spill preparedness and response regime. According to the intentions paper, the government is considering three scenarios though which an entity would be a “regulated person.” If it: (1) transports any quantity of a prescribed substance though a pipeline longer than a kilometre; (2) transports more than 10,000 litres of the substance by rail or road; or (3) stores more than 50,000 litres of the substances in fixed facilities. There are currently 140 substances proposed to be prescribed.
Regulated persons will be required to carry out assessments of the magnitude of risk to the environment, human health and infrastructure that would result from the spill of a prescribed substance and to carry out spill contingency planning. The government will have the authority to order regulated persons to prepare, test, update and pay for geographic response plans.
The bill also establishes the framework for industry-funded certified preparedness and response organizations that will prepare and implement response plans for designated areas.
SPILL REPORTING AND RESPONSE EXPANDED
Under the current regime in the EMA, spills over a threshold quantity must be reported to the provincial government and remedial action must be taken. The prescribed amounts for reporting currently range from 1 to 200 kilograms or litres, depending upon the substances. Further action such as evaluation and remediation of impacts can also be required if the circumstances warrant it, but usually only under orders from the government. Under the amendments to EMA, the need for such orders will be reduced, as the actions automatically required when a spill occurs will be significantly expanded.
The amendments set out a definition of a “responsible person” as a person who has possession, charge or control of a substance when a spill of the substance or thing occurs or is at imminent risk of occurring. A spill is defined as the unauthorized introduction of a substance or thing that has the potential to cause adverse effects to the environment, human health or infrastructure.
Under the amendments, every responsible person must, in accordance with regulations:
- Report prescribed information
- Provide any information an officer requests respecting response activities
- Ensure persons with the skills, experience, resources and equipment necessary to properly deal with a spill arrive at a site within a prescribed period after a spill and implement an incident command system
- Prevent the continuation of any threats or hazards caused by the spill
- Stabilize and clean up
- Identify immediate risks
- Evaluate long-term impacts
- Take steps to mitigate immediate and long-term impacts.
The government is also empowered to order compensatory mitigation measures to be taken elsewhere if the impacts of the spill cannot be completely remediated or make a payment to a “primarily not-for-profit” organization that must apply the funds to projects that will compensate for the damage caused by the spill.
According to the intentions paper, there will be five stages of reporting set out in the regulations:
- Initial report by phone as soon as possible
- Web-based report within six hours to confirm and provide additional details
- Written confirmation report within 48 hours to confirm or update initial information
- Followup reports during response on a timeline set by the Ministry of Environment, if conditions change significantly, or every 30 days
- End of spill report including next steps and analysis of restoration needs.
It is not clear from the amendments or the intentions paper whether the trigger for reporting a spill will continue to be a threshold amount of a prescribed substance, or whether it will be solely based upon the more subjective requirement that it have the potential to cause an adverse effect on the environment, human health or infrastructure. Furthermore, it is also unclear whether all the steps set out above will apply no matter the size of the spill or the magnitude of the risk of the adverse effect. If they do, the amendments would appear to create a substantial regulatory burden upon both large and small entities (or individuals), which may not necessarily correspond with the potential impacts arising from a particular incident.