On October 30, 2017, three new regulations under the Environmental Management Act (“EMA”) came into force, greatly revamping the reporting, response and preparedness regime in British Columbia: the Spill Reporting Regulation; the Spill Preparedness, Response and Recovery Regulation and the Spill Contingency Planning Regulation. In addition, amendments passed in 2016 creating Division 2.1 of the EMA have come into force as of the same date. A short summary of the main changes to the spill response and reporting regime is set out below.
Who is affected by the new regulations?
Division 2.1 and the related regulations impose reporting and response obligations on “responsible persons”, defined as all persons with possession, charge or control of a substance when a spill of a substance or thing occurs, or there is an imminent risk of a spill occurring. A “spill” occurs under the EMA when there is an introduction into the environment of any substance or thing that has the potential to cause adverse effects to the environment, human health or infrastructure.
When are the new spill reporting obligations triggered?
An obligation to report is triggered when there is a spill of a prescribed quantity of a substance, as listed in the Schedule of the new Spill Reporting Regulation. The prescribed quantities listed in the Schedule remain the same as those listed in the previous regulation. However, the new regulation has added an obligation to report on a spill of any quantity of a substance listed in the Schedule that enters or is likely to enter a body of water.
What are some of the changes to a responsible person’s spill recovery and response obligations?
Under the new Division 2.1 of the EMA, a director may order a responsible person to prepare a recovery plan to resolve or mitigate the impacts of a spill. The responsible person is required to provide any information an officer may request in the report and ensure that an approved recovery plan is carried out by persons that the director is satisfied have the appropriate qualifications to do so. They should have access to personnel with appropriate skills and training to assist in implementing the plan.
What must be reported when a spill occurs?
As of October 30, 2017, the responsible person must immediately submit an initial verbal report to the Provincial Emergency Program Spill Reporting Hotline. The prescribed contents of the report are the same as under the previous regulation, which include the date and time of the spill, a description of the circumstances, cause and adverse effects of the spill and the location of the spill site, but have now been expanded to include information on the owner of the substance and a description of the source of the spill. As of October 30, 2017, a director under the EMA may also order the responsible person to create a “lessons-learned” report if the spill meets certain criteria. This report must include information such as how the spill response was effective and actions that could be taken in order to improve it. Reporting requirements will be further expanded as of October 30, 2018 to include the requirement to submit a written report after the spill and another report within 30 days after the emergency response completion date.
Be prepared for compliance with stricter regulations
The new legislation reflects a trend towards stricter regulation of spills in B.C. A broader range of spills is now reportable and extensive reporting requirements previously reserved for significant spills are now applicable to all reportable spills. Clients are encouraged to reflect on their current spill reporting and recovery policies to ensure compliance with the current regime and prepare themselves for more changes coming after October 2018.