In the aftermath of a number of high profile environmental emergencies, the federal government of Canada has changed its Environmental Emergency Regulations to the Canadian Environmental Protection Act (“E2 Regulations”) in the name of the “four pillars” of environmental emergency management:
- response; and
Hazard Risks Caught by E2 Regulations
E2 Regulations will regulate substances identified as containing unacceptable hazards to environment/health & safety such as:
- inhalation hazards;
- possibility of pool fires; and
- aquatic toxicity.
E2 Regulations will replace current regulations which are viewed as inadequate due to insufficient mitigation of risk and pre-incident disclosure obligations (beyond substance notifications/permits).
The mandate is to customize compliance and enforcement activities, seemingly making simple adherence to standardized communications unacceptable.
The E2 Regulations contain a number of new (and novel) compliance obligations, while dramatically increasing the scope of the substances caught:
- Annual exercise of one part of the plan (so that rolling 5-year testing of whole);
- Consolidating explosive, inhalation and “other” hazard lists into 1 (which is distinct from Canada’s toxic substances list);
- Emergency plan with “adequate measures” for any emergency which could occur;
- Periodic report every 3 & 5 years depending upon substance quantities (creating double reporting with the Chemical Management Plan?);
- 49 new substances are added; and
- Public notification of the possibility and potential consequences of environmental emergency.
How Do You Notify the Pubic of Either:
a) the “possibility” of an emergency; or
b) the potential consequences of such emergency.
More notably, the communications must consider the specific:
a) property and characteristics of the substance and maximum expected any time during the year;
b) commercial, manufacturing, processing or other activity involving substance; and
c) place where substance is located, environment and health/safety of the surrounding area may be affected on worst case scenario including:
- residential, commercial or industrial buildings;
- parks, forest and wildlife habitations; and
- water sources and water bodies.
What to Say?
The conundrum faced by companies making these types of communications will be all too obvious:
- say too little or otherwise downplay the risks and it’s not “adequate measures” to protect public; and
- say too much and it’s an admission of unreasonable risk, as well as making your company a community pariah.
The solution likely starts with the rigorous GHS communications companies are already required to prepare and maintain, such as the hazard warnings already contained in compliant Safety Data Sheets.
But these will not be site specific, placing companies in the unenviable position of having to model site risk scenarios and reduce the worst case to writing in communications that will, no doubt, be viewed by the public, emergency response personnel and regulators.