On May 19, 2016, the Province of British Columbia amended the Environmental Management Act (the “EMA”) to adopt the new spill preparedness and response regime (the “Regime”). The amendments are not yet in force and will be brought into force by regulation at a later date.
The Regime has broad implications for the public and private sectors. When in force, the Regime will prescribe spill response and reporting requirements; require specified persons to engage in spill contingency planning; enable the Province to designate geographic response areas and certify preparedness and response organizations; and allow the Minister of Environment to establish an advisory committee respecting spill-related matters.
The Regime can be divided into four components: preparedness, response, recovery and oversight. While many of the details remain uncertain, key elements of the Regime are as follows.
The Regime contains three methods of planning for a spill: contingency response plans, geographic response plans and area response plans.
Contingency response plans
Regulated persons must adopt a spill contingency plan, review and update the plan, make the plan available to employees, test the plan and demonstrate the capability to effectively respond to a spill.
To be considered a regulated person, a person must in the course of operating an industry, trade or business, have possession, charge or control of a prescribed substance in prescribed quantities.
The details of the contingency planning process (including substances, testing methods and the like) have not yet been established, but the intentions paper published in April by the Province (the “Intentions Paper”) contains some details about what may be coming. The Intentions Paper can be viewed here.
Geographic response plans
Regulated persons may be required to prepare a geographic response plan in areas designated by the Minister.
Area response plans
The Province intends to certify preparedness and response organizations (“PROs”) – organizations capable of dealing with spills and impacts of spills within a specified area. To become fully certified, a PRO must prepare and publish a response plan for the area designated in its certificate. The Province may, by regulation, require regulated persons to enter into an arrangement with a certified PRO to meet the regulated person’s obligations under the EMA.
Requirement to provide information
Persons who are not regulated persons may be required to provide information if, in the course of operating an industry, trade or business, they have possession, charge or control of a substance which a director under the EMA believes may, if spilled, cause adverse impact to the environment, human health or infrastructure.
The Province contemplates that the Regime will standardize spill response and reporting requirements by imposing clearer and more consistent requirements.
The term “spill” means the introduction into the environment of a substance or thing that has the potential to cause adverse effects to the environment, human health or infrastructure. Any person who has possession, charge or control of a substance or thing when a spill of the substance or thing occurs is a responsible person in respect of the spill. Such person must report and respond to a spill or the imminent risk of a spill. The definitions of “spill” and “responsible person” are new, but the concepts are not significantly different from those that currently exist under the EMA.
The Province anticipates five reporting stages for the responsible person after discovering a spill: immediate reporting (Initial Spill Report A); update within 6 hours of spill discovery (Initial Spill Report B); confirmation and update within 48 hours of spill discovery (Confirmation Report); follow up reports over 30 days; and end of spill report within 30 days of completing the emergency response phase (see Intentions Paper for details).
Personnel responding to a spill must have specialized training. The Province anticipates prescribing various types of training requirements (see Intentions Paper for details).
A director under the EMA may order a recovery plan to resolve or mitigate the impacts of a spill. If a director believes that an impact of a spill on the environment cannot be restored, the director may order the responsible person to take mitigation measures elsewhere or to pay to a specified non-profit organization an amount equal to what they would be liable to pay if restoration were achievable.
As one of the new requirements, the Minister must report on the administration of the Regime to the Legislative Assembly. The Minister may also establish an advisory committee to advise the Minister respecting spill preparedness, response and recovery. The committee may include representatives of local governments, first nation governments and individuals with technical expertise.
Written by Olga Rivkin and Emily Chan