Canada: A Look Inside B.C.'s New Spill Preparedness And Response Requirements: Who Is Affected And What's Changed

Some companies transporting certain petroleum-based products in British Columbia will have to comply with new spill preparedness and response requirements, after amendments made to the B.C. Environmental Management Act (EMA) came into force on October 30, 2017. Our October 2017 Blakes Bulletin: British Columbia Implements New Spill Reporting Requirements discussed the new spill reporting regime implemented as part of these changes. This bulletin details the spill contingency and response planning requirements that apply to entities referred to as "regulated persons" in the EMA amendments.

The Spill Preparedness, Response and Recovery Regulation and Spill Contingency Planning Regulation prescribe who "regulated persons" are and establish the new spill contingency planning and response to be carried out by industries caught by this definition. Currently the new requirements apply only to entities that are in the business of transporting petroleum-based substances. However, it is likely the list of industries caught by the new requirements will be expanded in the future. Industries that handle potentially harmful substances are advised to follow the next phase of the regulations' development.

REGULATED PERSONS

"Regulated persons" are defined as any persons who, in the course of operating an industry, trade, or business have possession, charge, or control of a prescribed substance in prescribed quantities. This includes companies whose employees have possession, charge, or control of such substances.

For the purposes of defining regulated persons, the Spill Preparedness, Response and Recovery Regulation sets out eight prescribed substances (all petroleum based) transported by pipeline, rail, or road. The prescribed quantity varies with the mode of transportation. Furthermore, persons holding permits to carry out oil and gas activities to which the Emergency Management Regulation under the Oil and Gas Activities Act apply are exempt from spill contingency planning. Thus, the spill contingency planning and response requirements in the EMA are currently limited in application.

PROVINCEWIDE SPILL PREPAREDNESS AND RESPONSE

The Spill Preparedness, Response and Recovery Regulation sets deadlines for all regulated persons transporting prescribed substances to prepare a spill contingency plan:

  • Pipeline and rail: Persons who transport listed substances in any quantity through a pipeline and those who transport listed substances in a quantity of 10,000 litres or more have a deadline of April 30, 2018.
  • Highway: Persons who transport a listed substance in a quantity of 10,000 litres or more on a highway have a deadline of October 30, 2018.

The minister may extend the deadline by no more than six months beyond the dates set out above.

Before a spill contingency plan is prepared, a regulated person must ensure investigations, tests and surveys are undertaken to determine the magnitude of the risk to the environment, human health and infrastructure that would result from a spill of a prescribed substance. Records of these hazard assessments must be maintained for the period during which the regulated person has a spill contingency plan to which these records relate.

The Spill Contingency Planning Regulation sets out the prescribed contents of spill contingency plans, which must include:

  • Hazard assessments
  • Spill response planning map
  • Equipment, personnel and other resources
  • Incident command system
  • Human health and safety
  • Communication procedures
  • Waste management
  • Wildlife
  • Spill response procedures
  • Training

The government has also imposed requirements to review, update and test plans:

  • Review and update: The spill contingency plan must be reviewed and updated at least once each calendar year, and within one month of prescribed events.
  • Testing: Tests must be conducted in every calendar year (except the year in which a worst-case scenario is conducted) for at least one discussion-based test and one operations-based test.
  • Worst-case scenario test: A regulated person who has a spill contingency plan must conduct a worst-case scenario test at least once every three year period. This operations-based test requires a simulation of the worst-case scenario of a spill of the specified quantity of a regulated substance.

Records of any revisions to, and testing of, the spill contingency plan must be kept for at least five years.

The Spill Contingency Planning Regulation also requires that spill contingency plans be available to employees. A regulated person who is a highway transporter must ensure that each motor vehicle used to transport the prescribed substance contains a copy of the parts of the plan that address initial assessment procedures, notification procedures and spill response actions in which a driver may be involved.

COMPARISON WITH OTHER STATUTORY REQUIREMENTS

There are other regulatory schemes that require industries to establish emergency plans, including the provincial Oil and Gas Activities Act, the federal Transportation of Dangerous Goods Act and the federal Canadian Environmental Protection Act (CEPA). Additionally, many holders of permits under the EMA have individual requirements to have prescribed emergency plans. The question for those now caught by the definition of a regulated person is: how much do the new EMA requirements add to their existing obligations?

The Environmental Emergency Regulations under CEPA stipulate requirements for federal environmental emergency plans (E2 Plans) for industries handling a significant list of substances. While the E2 and new EMA requirements have common elements, existing E2 Plans are unlikely to completely satisfy the new, more onerous reporting and planning requirements under the EMA. For example, the EMA regime requires "worst-case scenario" testing be conducted and the personnel requirements in the incident command system are more prescriptive. The E2 regulations permit environmental plans prepared for other governments to satisfy the requirement for an E2 Plan so long as federal requirements are met. Thus regulated persons may already have E2 Plans that can be reviewed and updated to satisfy the new EMA requirements. This may also be the case with other regulatory schemes.

COMMENTARY

Companies now caught by the definition of a regulated person should turn their attention to conducting the required hazard assessments and preparing spill contingency response plans, or updating existing ones, to ensure the 2018 deadlines set out in the regulations are met.

Although the new spill contingency plan requirements are currently limited to eight petroleum-based substances and three types of transporters, it is expected that more substances and industries will be added in the future. The provincial government has stated it will begin consultation in February 2018 regarding "phase 2" of the regulatory development, and will be releasing a public intentions paper for comment. Industries that possess, manage, transport, or control hazardous substances should follow phase 2 carefully as they may soon find themselves included in the definition of regulated persons and subject to enhanced emergency response planning.

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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