Unauthorized releases of substances into the environment can occur any time, in many different circumstances, and bring with them varying degrees of risk. The minutes and hours following an unauthorized release can be dangerous, confusing and stressful for those involved, and in particular, for the first-responders, who may or may not have experience responding to a release.
Should an unauthorized release of substances occur, it is important that you and your staff are as prepared as possible to minimize risk of harm to human health and the environment. Dealing with any emergency, and safeguarding people and the environment, is always the first and immediate priority. However, another key element in your emergency response plan is reporting any unauthorized release to the appropriate authorities (and other affected parties) in a timely fashion. Failing to report the release, or failing to do so in a timely fashion, can have serious environmental and liability consequences.
This article is the first in a three-part series intended to provide the reader with a basic understanding of:
- environmental reporting obligations and the consequences for failing to meet those obligations;
- best practices for pre-release planning; and
- information about what to expect after an unauthorized release has been reported.
It is important to note that this article series will be addressing releases purely from the environmental law perspective. There are many other considerations, including occupational health and safety issues and, of course, appropriate emergency response measures and clean-up activities. These are general observations and guidelines; legal advice should always be sought in the context of a specific incident.
What is an unauthorized release?
Generally speaking, an "unauthorized release" is:
- any release of a substance (usually a solid, liquid or gas, but may also include: any sound, vibration, heat, radiation or other form of energy),
- into the environment (air, land, water),
which when released has the potential to be harmful to the environment, including plants, wildlife, and humans, and that is not specifically and expressly authorized by one or more of the following:
- a regulatory authorization to conduct a particular activity, such as an approval, registration, licence or permit;
- applicable Code(s) of Practice; or
- federal and/or provincial statutes or regulations.
It is critical to understand that the substance released may not, on its own, be harmful. However, if it is deposited in such a manner, concentration, or volume that it is likely to be harmful, it may be reportable. For example, an uncontrolled spill of otherwise safe water may increase the turbidity of the receiving waters, such that the sediment suspended in the turbulent waters suffocates fish. This would be reportable under the Fisheries Act.
Even a release which does not occur directly into the environment, but which has the potential to enter the environment, may be reportable. For example, a release of a toxic substance into a ditch, which later discharges into fish-bearing waters, is reportable under the Fisheries Act.
Is every unauthorized release reportable?
Sometimes applicable legislation or regulation(s) will specify precisely what volume of a released substance triggers your duty to report, and volumes below that amount are not reportable unless there is a risk of harm. For example, your duty to report an unauthorized release of a Class 1 substance (as set out in the Transportation of Dangerous Goods Act and regulations thereunder) is triggered only when the release "could pose a danger to public safety" or is in excess of 50 kilograms.
Compare that to a Class 6.2 substance under that same legislation, which must be reported when released in "any quantity, whatsoever".
Where the applicable legislation and regulation(s) are less prescriptive, consider the following three factors, which will help you to decide if you are required to report an unauthorized release:
1. volume of the released substance;
2. toxicity of the released substance and/or its potential to cause harm to human, environmental, or aquatic health; and
3. location of the unauthorized release.
The greater the volume, the potential harm, and the sensitivity of the location, the more likely it is that you have a duty to report the release. Frequently, you do not know the potential for harm with certainty immediately after a release, and it is likely that further tests or sampling will be required. In such circumstances, our recommendation is generally to report the release, as discussed under the next subheading.
When in doubt, report.
The penalty for failing to report is often greater than, or equal to, the penalty associated with the underlying release. "Failure to report" can, and frequently is, added to the list of charges against an operator when a spill results. This can result in a higher penalty than would otherwise apply and may even result in a conviction where one would not otherwise occur. Even if a due diligence defence can be advanced in connection with the release incident itself, that will not serve as a defence for the charges pertaining to the failure to report a release in accordance with the applicable legislative and regulatory requirements.
Accordingly, in most cases our recommendation is to report a release even where there is uncertainty as to volume, content, or potential for harm. If you later discover that the incident did not need to be reported, you can advise the authority of your error. It is our view that this approach carries with it a lower risk of liability in the majority of cases. When in doubt, reach out to your legal counsel to discuss whether or not you have a duty to report. They may advise you that a reporting exception applies. In any event, ensure that you consult your counsel as soon as possible.
When do you report an unauthorized release and to whom?
There are a number of different Acts and regulations which govern when an unauthorized release must be reported and to whom. More often than not, the expectation is that the release will be reported "without delay", "immediately", or "as soon as possible".
Depending on your authorizations, you may need to report to more than one authority the nature of the released substance, location of the release, and many other factors. In Alberta, most required reporting can be done by contacting the provincial Energy & Environmental Response Line (24 Hour Hotline) at 1-800-222-6514 – but be warned, this hotline does not necessarily cover all reporting obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.