Canada: Written Spill Reporting Requirements In British Columbia Now In Effect

On October 30, 2018, British Columbia significantly expanded its spill reporting requirements to include written reports, thus implementing the last of the amendments to the spill management and reporting requirements under the Environmental Management Act (EMA) that came into force on October 30, 2017. Reporting of all spills must now include multiple written reports, which meet extensive prescriptive components. For more information, see our October 2017 Blakes Bulletin: British Columbia Implements New Spill Reporting Requirements.

The written reporting provisions do not apply to persons holding permits to carry out oil and gas activities to which the Emergency Management Regulations under the Oil and Gas Activities Act apply.

30-DAY REPORTS

In addition to an immediate verbal report when there has been a spill or there is a risk of a spill occurring, written reports are required:

  • As soon as possible on request of the Minister of Environment and Climate Change Strategy (Minister)
  • At least once every 30 days since the spill occurred
  • Any time the responsible person has reason to believe the information previously submitted is incomplete or inaccurate

The 30-day reports must include, to the extent practicable, the information that is required in an end-of-spill report (see below). The 30-day reports must be submitted until the response completion date. The emergency response completion date is the date after which the incident command post has been disestablished, the sources of the spill are under control, emergency actions have been taken, waste has been removed from the site, notices regarding evacuations have expired and emergency response equipment and personnel have been removed.

END-OF-SPILL REPORTS

End-of-spill reports must be submitted to the Minister within 30 days after the emergency response completion date. These reports require much of the same information that is required to be submitted through verbal reports, but they must also include:

  • The circumstances, cause and adverse effects of the spill, including:

    • The activity, incident or underlying cause that led to the spill (e.g., collision, human error, management failure)
    • The spill's adverse effects to human health
    • The spill's adverse effects to the environment and infrastructure at the spill site and the area surrounding the spill
  • Details of action taken to respond to the spill
  • How and where waste from the spill was disposed of
  • Copies of data from, and reports of, sampling, testing, monitoring and assessment work carried out during the spill response
  • A map of the spill site and surrounding area and photographs of the spill
  • The names of agencies on the scene
  • The names of other persons or agencies advised about the spill

For both 30-day reports and end-of-spill reports, the Ministry will provide instructions to the responsible person via email regarding how to complete and submit the report forms.

LESSONS-LEARNED REPORT

Within six months following an emergency response completion date for a spill, the Minister may order a responsible person to submit a written lessons-learned report on the spill to the director. Lessons-learned reports must include:

  • A description of the effectiveness of the spill response actions
  • A description of actions taken to prevent future spills and improve responses to future spills
  • Responses to any questions posed by the director in the order

Responsible persons will have six months after the emergency response completion date to submit the lessons-learned report. The order will specify the manner and form in which the report is to be submitted. There are further requirements for lessons-learned reports if the "responsible person" is also a regulated "person".

COMMENTARY

Written reporting in response to spills has typically occurred in British Columbia voluntarily or in response to orders and permit requirements. Under the new EMA amendments, written reports are not voluntary, and apply to all reportable spills regardless of size or environmental impact. The scope and number of reports has also increased. Accordingly, these changes significantly increase the obligations on responsible parties in the event of a reportable spill.

Companies should amend their environmental management systems to ensure compliance with the written reporting that must be completed for all spills that occur on or after October 30, 2018. The Ministry has issued various fact sheets and guidance documents to assist in understanding the new requirements.

The written reports that must be submitted on a monthly basis until the incident response is complete will result in multiple reports with largely the same information, although it is likely some of the answers will change over time as understanding of the incident evolves. While questions must be answered as fully as possible, reporting parties should avoid speculation when complete answers are unknown, and should make it clear when answers are preliminary, incomplete or when the information is not yet available.

Companies should also keep in mind that spill reports will inform any inspections or investigations that follow an incident, and may be used as evidence in any enforcement actions taken. In due course, they also may become public through requests under the Freedom of Information and Protection of Privacy Act. Depending on the circumstances, it may be advisable to obtain legal advice when preparing the report and before submitting the information to the regulators.

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© 2018 Blake, Cassels & Graydon LLP.

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