This article is the third 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.
Part 1, we provided a general overview of environmental release
reporting obligations. In
Part 2, we summarized best practices for pre-release planning.
In this final installment, we address what to expect after the
unauthorized release has been reported. As with Parts 1 and 2, we
focus our comments on the Alberta regulatory regime.
As we have previously observed, it is important to understand
that this series addresses releases from the environmental law
perspective only. This article is not an appropriate replacement
for robust, site-specific protocols for release prevention and
response, which should include many other considerations, such as
occupational health and safety issues, appropriate emergency
response measures, and cleanup activities.
Many acts and regulations, including the Environmental
Protection and Enhancement Act
("EPEA"), require submission of
additional information in writing, sometimes within a very short
period after the unauthorized release. Contact a lawyer as soon as
practicable after the release to confirm what, if any, additional
obligations you have, and your deadlines for meeting those
Depending on your organization's familiarity with the
regulatory process, and the likelihood of an investigation, you and
your lawyer can assess how much involvement of legal counsel you
require going forward.
The likelihood of an investigation is impacted by a number of
factors, including but not limited to the substance released, the
amount and duration of the release, and potential impacts to human
health or the environment.
Anticipate an Investigation
Investigators have significant powers to enter and inspect
business premises, generally without a warrant. Those powers
arise where there is a reasonable belief that a substance is being,
has been, or may be released into the environment; where
there is reason to believe that an approval has been violated; or
for many other reasons specified in the authorizing legislation and
Personnel should be trained in advance of an investigation about
what they can expect. In particular, it is important to ensure they
it is a serious criminal offence to either obstruct an
investigator or peace officer performing his or her duties, or to
destroy or alter evidence;
they may be required to give statements to the investigators
that may be used against the company, but they are not required to
sign "statements" that have been drafted by the
they may be required to testify for either the company or the
Crown (prosecution) at a later date;
they cannot be compelled to give statements that may be used
against them personally; and
they may be personally and criminally liable for possible
offences (potentially creating a conflict of interest with the
In addition to training all potentially affected personnel, the
designated "Communications Coordinator" described in Part
2 of this article series should be familiar with relevant
legislation and regulations and company-specific policies relating
to releases. The Communications Coordinator should have up-to-date
information on incident response efforts, including the technical
aspects of how the release is being addressed and the company's
compliance with the reporting obligations outlined earlier in this
Ideally, no statement should be made by any individual until
legal advice has been sought and received.
The end of an investigation is not necessarily the end of your
involvement. In the modern world, everything is publicized. If
charges are laid, you should expect the Crown to issue a press
release commenting on the charges. In such circumstances, your
communications personnel should be ready to issue a public
response, developed in consultation with your professional
If an enforcement order is issued, you will have limited time in
which to file an appeal.
As illustrated in this series of articles, an unauthorized
release gives rise to significant reporting obligations that must
be addressed to minimize liability risks for your organization and
the individuals associated with it. While our articles are no
substitute for timely and specific legal advice, we hope that this
series has provided you with a general understanding of the nature
of your 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.
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