The BC legislature recently enabled an expanded spill preparedness and response regime. Bill 21 creates a new part of the Environmental Management Act (EMA) administered by the BC Ministry of Environment. These new provisions create numerous new obligations that will be important for BC companies to incorporate into their existing emergency response plans.
A person who has possession, charge or control of a substance when a spill occurs will be a “responsible person” required to immediately report the spill to the province’s emergency centre. New regulations will standardize the information to be provided and require the responsible person to make follow-up reports about the status of the spill within six hours, 48 hours and every 30 days until the end of the emergency response phase.
Future regulations will establish prescribed response times for the responsible person to arrive on site. Failure to meet these times will be allowed if responder safety is at risk.
Sampling and monitoring
The ministry is considering regulations that will require the responsible person to undertake sampling and monitoring to assess risks to and impacts on human health, the environment and infrastructure. The degree of sampling may vary depending on the type and quantity of the substance involved and the spill location.
Bill 21 will enable regulations defining “regulated persons” who will be required to have individual and geographic response plans and carry out regular drills and exercises. The ministry is proposing that a person who transports 10,000 liters or more of a prescribed substance by rail or truck, a person who operates a pipeline 1 kilometer or longer transporting a prescribed substance and a person operating a facility, other than a retail gas station, that stores 50,000 liters or more of a prescribed substance to be a regulated person. One hundred forty types of substances are being considered for designation as prescribed substances.
Regulated persons will have to develop spill response plans for a worst-case scenario spill. Future regulations will specify the contents of such plans and require regulated persons to demonstrate they have, or have access to, trained personnel, equipment and resources.
Geographic and area response plans
Bill 21 allows the minister to require a group of regulated persons within a geographical area to develop a geographical response plan. A geographical response plan will allow for a coordinated response by a regulated person with logistical support from other regulated persons in the area.
Bill 21 also contemplates accreditation of professional preparedness and response organizations on a geographical area basis.
Finally, Bill 21 enables the ministry to require a responsible person to clean up a spill and, if warranted, to use qualified individuals. Future regulations are anticipated that will set out deadlines for submitting to the ministry recovery plans and implementing and finalizing clean-up efforts.
Several steps further
To a large extent, Bill 21 takes several steps further than similar legislation in other provinces. For example, Quebec’s regulatory regime for spills applies to spills of any contaminant but has specific rules for spills of liquid or solid hazardous materials that force the responsible party to stop the leak or spill immediately, notify the ministry, recover the spilled materials and remove any contaminated material that is not cleaned or treated on the spot. Quebec’s regulation does not set specific rules as does Bill 21 for issues such as reporting requirements and timelines, sampling, identification of obligated parties, response and clean-up plans.
Ontario adopted a “Spills Bill” as part of its regulatory regime in the 1980s. Since that time, Ontario has continued to enhance its spill reporting and clean-up requirements.
In June 2005 in response to numerous spills into the St. Clair River, an aggressive regime came into force with a “you spill you pay” approach with a corresponding move to lower the impact threshold of a contaminant release from “likely” to “may” cause an adverse effect, a reverse onus on directors and officers to demonstrate compliance and enhanced fines and penalties. Ontario’s current scheme has many of the basic elements as the proposed BC regime. However, BC's unique scheme is much more comprehensive as it includes emergency geographic planning and requirements to exercise and test the plans. These type of elements are seen in Ontario’s new rules related to propane storage and dispensing.
Alberta's legislation requires verbal and written reporting of spills and remediation requirements. However, it does not include specific response times, geographic or area response plans or mandatory emergency response plans other than in a few industries, such as oil and gas.