In February 2021, more than three years after BC's land-based spills regime came into force (see our previous legal update), the BC government amended the Administrative Penalties (Environmental Management Act) Regulation (the Regulation) to allow the government to impose fines for contraventions of the Spill Preparedness, Response and Recovery provisions of the Environmental Management Act and associated regulations.

The new amendments create three categories of penalties with maximum limits of $75,000, $40,000 and $10,000.

Of note, the amendments allow administrative penalties of up to $75,000 to be levied for failing to:

  • Report an actual or potential spill that is at imminent risk of occurring to the Provincial Emergency Program (by phone at 1-800-663-3456).
  • Take specific actions if a spill occurs or is at imminent risk of occurring, including a failure to identify and mitigate spill-related environmental, human health, and infrastructure impacts.
  • Have a compliant spill contingency plan in place.

The amendments also allow administrative penalties of up to $40,000 to be levied for non-compliance with requirements surrounding spill contingency plans, persons qualified to deal with spills, and reports to the director on spill response actions, among others. Administrative penalties of up to $10,000 may be levied for non-compliance with spill contingency plan requirements that are specific to pipeline transporters and railway transporters, for example, and non-compliance with reporting requirements to the director on spill reporting. Due diligence defences (i.e., establishing that the person took all reasonable care to prevent the contravention) are not available for administrative penalties, according to the Regulation.

Further details on maximum administrative penalties that may be imposed for different types of contraventions are listed in the table below. 

The BC government's expanded use of administrative penalties reflects a trend of environmental regulators increasingly turning to administrative penalties as an alternative or additional enforcement mechanism under provincial and federal legislation.

Using administrative penalties can be controversial and may raise questions of constitutionality and due process. In some instances, BC's land-based spills-related regulations also contain subjective language that creates further uncertainty about whether certain acts or omissions constitute contraventions that could trigger administrative penalties. For example, a penalty of up to $75,000 may be levied against a regulated person who contravenes section 91.2(2) of the EMA by failing to "ensure that the actions necessary to address the threat or hazard caused by the spill are taken." Section 91.2(2) contains a non-exhaustive list of potential actions that may be included as "necessary," but it is not clear what other activities may be included or how to assess whether certain actions not taken are "necessary." The Regulation contains some guidance on the factors that must be considered in establishing the amount of an administrative penalty and an aggrieved person may appeal any penalty to the Environmental Appeal Board within 30 days.   

Table: Summary of New Administrative Penalties for BC's Land-Based Spills Regime

Spill Contingency Planning
Up to a maximum of $75,000
  • failing to ensure there is a spill contingency plan in place; and
  • in the event of a spill, failing to ensure that the spill contingency plan is properly executed
Up to a maximum of $40,000
  • failing to ensure that the spill contingency plan is reviewed, updated and tested in the following manner:
    • in every 3-year period, at least one worst-case scenario test; and
    • in every year other than the year a worst-case scenario test is conducted, at lease one discussion-based test and one operations-based test;
  • not making the spill contingency plan available to employees;
  • failing to conduct and maintain records of investigations, tests and surveys that determine the risks a spill poses to the environment, human health and infrastructure;
  • failing to ensure that employees receive training and engage in discussion-based and operations-based tests;
  • not addressing the worst-case scenario or omitting other necessary information in the spill contingency plan
Up to a maximum of $10,000
  • failing to ensure the spill contingency plan demonstrates that the regulated person has the capability to effectively respond to a spill;
  • failing to publish the spill contingency plan (if required to);
  • failing to prepare and submit the necessary reports to the director; and
  • contravening the hazard assessment, spill response planning map, equipment, personnel and other resources, incident command system, human health and safety, communication procedures among personnel and public, waste management, wildlife, and spill response procedure provisions of the Spill Contingency Planning Regulation

Spill Response and Recovery
Up to a maximum of $75,000
  • if a spill occurs or is at imminent risk of occurring, failing to:
    • monitor or prevent the hazard or threat;
    • contain and clean up the spill;
    • identify and evaluate the immediate risks to and impacts on the environment, human health or infrastructure and the long-term impacts; and
    • take steps to mitigate those impacts; and
  • failing to comply with the terms and conditions of the conditional PRO certificate or the PRO certificate (if applicable)
Up to a maximum of $40,000
  • failing to report information about the spills or provide information respecting response activities in relation to the spill when requested by an officer;
  • failing to ensure someone with the necessary skills and resources to properly deal with the spill is at the site and implements an incident command system;
  • failing to ensure an approved recovery plan is carried out by an approved person by the specified date in the plan;
  • failing to ensure a geographical response plan (if required) contains the necessary information;
  • if certified as a PRO, to prepare and publish the area response plan designated in its conditional PRO certificate, and review, update, test and republish such plan;
  • for other substances that a director believes would have adverse effects if spilled, failing to provide information respecting the substance and its properties, the potential adverse effects to the environment, human health or infrastructure, quantities of the substance, or other prescribed information to a director 
Up to a maximum of $10,000
  • failing to prepare and submit a report to the director at the conclusion of the recovery process;
  • failing to ensure a geographic response plan (if required) is prepared in the prescribed form and published in accordance with the regulations;
  • failing to provide information that a director requests respecting the quantities of the substance the person has, or intends to have; and
  • contravening the contents of a recovery plan, records relating to spill contingency plans, records relating to service arrangements, and requirement to produce records to minister provisions of the Spill Preparedness, Response and Recovery Regulation

Spill Reporting
Up to a maximum of $75,000
  • if spill occurs or is at imminent risk of occurring, failing to ensure that the actual or potential spill is immediately reported to the Provincial Emergency Program 
Up to a maximum of $40,000
  • failing to submit a lessons-learned report
Up to a maximum of $10,000
  • contravening the contents of the initial report, updates to minister, and end of spill report provisions of the Spill Reporting Regulation

The authors wish to thank articling student Jennifer Nguyen for her help in preparing this legal update.

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