Vol. 137, No. 19 — September 10, 2003

Registration
SOR/2003-307 20 August, 2003

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

P.C. 2003-1293 20 August, 2003

Whereas, pursuant to subsection 332(1) of the Canadian Environmental Protection Act, 1999 (see footnote a) , the Minister of the Environment published in the Canada Gazette, Part I, on August 10, 2002, a copy of the proposed Environmental Emergency Regulations, substantially in the form set out in the annexed Regulations, and persons were given an opportunity to file comments with respect to the proposed Regulations or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

And whereas, pursuant to subsection 200(1) of that Act, the National Advisory Committee has been given an opportunity to provide its advice under section 6 of that Act;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 200(1) of the Canadian Environmental Protection Act, 1999 (see footnote b) , hereby makes the annexed Environmental Emergency Regulations.

ENVIRONMENTAL EMERGENCY REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

"Act" means the Canadian Environmental Protection Act, 1999. (Loi)

"CAS registry number" means the identification number assigned to a substance by the Chemical Abstracts Service Division of the American Chemical Society. (numéro d'enregistrement CAS)

"environmental emergency plan" means a plan respecting the prevention of, preparedness for, response to and recovery from an environmental emergency in respect of a substance. (plan d'urgence environnementale)

LIST OF SUBSTANCES

2. For the purposes of the definition "substance" in section 193 of the Act, the list of substances consists of the substances set out in column 1 of Schedule 1, having a concentration equal to or greater than the applicable concentration set out in column 2.

IDENTIFICATION OF PLACES

3. (1) Any person who owns or has the charge, management or control of a substance set out in column 1 of Schedule 1 that is located at a place in Canada, must submit to the Minister a notice containing the information requested in Schedule 2 for each such place in either of the following circumstances:

(a) the substance is in a quantity that at any time is equal to or exceeds the quantity set out in column 3 of Schedule 1 for that substance; or

(b) the substance is stored in a container that has a maximum capacity equal to or exceeding the quantity set out in column 3 of Schedule 1 for that substance.

(2) In determining quantity for the purposes of subsection (1), the person must include all quantities of the substance that are located at the place, whether in storage or in use, except the following:

(a) quantities of the substance that are temporarily stored for 72 hours or less in a container not normally located at the place, if the person keeps evidence during the temporary storage period of the date the substance was received;

(b) quantities of the substance in a container that has a maximum capacity of 30 kg or less;

(c) quantities of the substance when it is a component of another substance set out in column 1 of Schedule 1;

(d) quantities of the substance when it is a component of natural gas, except if the natural gas is in liquefied form;

(e) quantities of the substance in a fuel tank that supplies the engine of a conveyance that is used for transportation;

(f) quantities of a substance that are the object of an activity that is subject to the Transportation of Dangerous Goods Act, during the performance of that activity;

(g) quantities of a substance set out in column 1 of Part 1 of Schedule 1 that is a component in a mixture, other than a mixture that is a substance set out in column 1 of Schedule 1, and the mixture has a flash point equal to or greater than 23°C or a boiling point equal to or greater than 35°C; and

(h) quantities of a substance set out in column 1 of Part 2 of Schedule 1 when the substance is a gas or a liquid and in a mixture and the partial pressure of the substance is equal to or less than 10 millimetres of mercury.

(3) The person must submit the notice within 90 days after the later of

(a) the day on which these Regulations come into force, and

(b) the day on which either of the circumstances under paragraph (1)(a) or (b) first occurs.

(4) The person must resubmit the notice referred to in subsection (1) within 60 days after the occurrence of any of the following changes:

(a) any change to the information provided to the Minister under section 1 or 2 of Schedule 2; or

(b) any increase of 10% or more in the maximum expected quantity of a substance reported under paragraph 3(d) of Schedule 2.

(5) The person must notify the Minister within 90 days after the quantity of the substance located at the place or the maximum capacity of the largest container in which the substance is stored, has for 12 consecutive months been less than the quantity set out for the substance in column 3 of Schedule 1.

(6) At the same time as a person submits information required under subsection (1), (4) or (5), the person shall submit to the Minister, in the form set out in Schedule 3, a certification that the information contained in the notice is accurate and complete, signed by the person or a duly authorized representative.

ENVIRONMENTAL EMERGENCY PLAN

4. (1) Subject to section 7, a person required to submit a notice to the Minister under subsection 3(1) must prepare an environmental emergency plan with respect to the substance referred to in that subsection in the following circumstances:

(a) if the substance is set out in column 1 of Part 1 of Schedule 1 and is not part of a mixture, and

(i) the maximum expected quantity of the substance that was reported under paragraph 3(d) of Schedule 2 is equal to or exceeds the quantity set out in column 3 of Schedule 1 for that substance, and
(ii) the substance is in a storage container that has a maximum capacity equal to or exceeding the quantity set out in column 3 of Schedule 1;

(b) if the substance is set out in column 1 of Part 1 of Schedule 1 and is a component in a mixture, other than a mixture that is a substance set out in column 1 of Schedule 1, and

(i) the mixture is in a quantity that is equal to or exceeds 4.5 tonnes, and
(ii) the mixture is in a storage container that has a maximum capacity equal to or exceeding 4.5 tonnes; and

(c) if the substance is set out in column 1 of Part 2 of Schedule 1, and

(i) the maximum expected quantity of the substance that was reported under paragraph 3(d) of Schedule 2 is equal to or exceeds the quantity set out in column 3 of Schedule 1 for that substance, and
(ii) the substance is in a storage container that has a maximum capacity equal to or exceeding the quantity set out in column 3 of Schedule 1 for that substance.

(2) In preparing an environmental emergency plan with respect to a substance, the person must consider the following factors:

(a) the properties and characteristics of the substance and the maximum expected quantity of the substance at the place at any time during a calendar year;

(b) the commercial, manufacturing, processing or other activity in relation to which the plan is to be prepared;

(c) the characteristics of the place where the substance is located and of the surrounding area that may increase the risk of harm to the environment or of danger to human life or health; and

(d) the potential consequences from an environmental emergency on the environment and on human life or health.

(3) The environmental emergency plan must include:

(a) a description of the factors considered under subsection (2);

(b) the identification of any environmental emergency that can reasonably be expected to occur at the place and that would likely cause harm to the environment or constitute a danger to human life or health, and identification of the harm or danger;

(c) a description of the measures to be used to prevent, prepare for, respond to and recover from any environmental emergency identified under paragraph (b);

(d) a list of the individuals who are to carry into effect the plan in the event of an environmental emergency and a description of their roles and responsibilities;

(e) the identification of the training required for each of the individuals listed under paragraph (d);

(f) a list of the emergency response equipment included as part of the environmental emergency plan, and the equipment's location; and

(g) the measures to be taken to notify members of the public who may be adversely affected by an environmental emergency.

(4) For each place, the person must submit to the Minister a report containing the information requested in Schedule 4 within six months after the later of

(a) the day on which these Regulations come into force, and

(b) the day on which the person is first required to prepare an environmental emergency plan under subsection (1).

(5) At the same time as a person submits the report under subsection (4), the person shall submit to the Minister, in the form set out in Schedule 3, a certification that the information contained in the report is accurate and complete, signed by the person or a duly authorized representative.

5. (1) A person referred to in subsection 4(1) must implement and test the environmental emergency plan referred to in section 4 or 7 and submit a notice to the Minister with the information requested in Schedule 5 within one year after the later of

(a) the day on which these Regulations come into force, and

(b) the day on which the person is first required to prepare an environmental emergency plan under subsection 4(1).

(2) At the same time as the person submits the notice under subsection (1), the person shall submit to the Minister, in the form set out in Schedule 3, a certification that the information contained in the report is accurate and complete, signed by the person or a duly authorized representative.

6. (1) The person referred to in subsection 5(1) must update and test the environmental emergency plan at least once a year to ensure that the plan continues to meet the requirements of subsections 4(2) and (3).

(2) The person must keep a copy of the plan readily available for the individuals who are to carry into effect the plan in the event of an environmental emergency and, if the place where one or more substances are located is a place of work, a copy must be available at that place.

(3) The person must keep with the plan, a record of the results from the annual updates and tests for a period of not less than five years beginning on the day the record is made.

7. (1) If a person, required to prepare a plan under subsection 4(1), has prepared an environmental emergency plan with respect to one or more of the substances set out in column 1 of Schedule 1 on a voluntary basis or for another government or under another Act of Parliament and the plan meets the requirements of subsections 4(2) and (3), the person may use that plan for the purposes of meeting those requirements.

(2) If a person has a plan that is described in subsection (1) except that the plan does not meet all of the requirements of subsections 4(2) and (3), the person may use the plan if they amend the plan so that it meets all of those requirements.

8. The notices and reports referred to in subsections 3(1), (4) and (5), 4(4) and 5(1) must be submitted in writing, or in electronic format, if any, that is provided by the Department of the Environment.

ENVIRONMENTAL EMERGENCIES

9. When an environmental emergency occurs in respect of a substance set out in column 1 of Schedule 1, for the purpose of paragraph 201(1)(a) of the Act, the persons designated to be notified are the persons providing 24-hour emergency telephone service provided by the office set out in column 2 of Schedule 6, and the persons designated to be sent the written report are the persons occupying the positions set out in column 3 of Schedule 6, for the province, set out in column 1 of Schedule 6, where the environmental emergency occurs.

COMING INTO FORCE

10. These Regulations come into force 90 days after the day on which they are registered.

SCHEDULE 1
(Section 2, subsection 3(1), paragraph 3(3)(b), subsections 3(5) and 4(1), paragraphs 4(4)(b) and 5(1)(b), subsection 7(1) and section 9)

LIST OF SUBSTANCES

PART 1

PART 2

NOTE: The percentage concentration in column 2, is the percentage concentration based on the proportion of the weight of the substance to the weight of the mixture

SCHEDULE 2
(Subsections 3(1) and (4) and subparagraphs
4(1)(a)(i) and (c)(i))

INFORMATION TO BE SUBMITTED IN THE NOTICE REGARDING THE IDENTIFICATION OF SUBSTANCE AND PLACE

1. Place where one or more substances are located:

(a) the facility name (or description), civic address and location by latitude and longitude; and

(b) for a contact person and alternate contact person, their name or the title of their position, e-mail (if any), telephone number and fax number (if any).

2. Head office (if different from above):

(a) name and address; and

(b) for the contact person and alternate contact person, their name or the title of their position, e-mail (if any), telephone number and fax number (if any).

3. For each substance located at the place:

(a) the name of the substance;

(b) the CAS registry number;

(c) the UN number (if applicable);

(d) the maximum expected quantity at any time during the calendar year; and

(e) the maximum capacity of the largest container in which the substance is stored.

SCHEDULE 3
(Subsections 3(6), 4(5) and 5(2))

CERTIFICATION

I hereby certify that the information provided with respect to Schedule ______ to the Environmental Emergency Regulations is accurate and complete.

_______________________________________________
(Signature of the person or duly authorized representative)

SCHEDULE 4
(Subsection 4(4))

INFORMATION TO BE SUBMITTED IN THE REPORT REGARDING THE PREPARATION OF AN ENVIRONMENTAL EMERGENCY PLAN

1. Place where one or more substances are located:

(a) the facility name (or description) and civic address; and

(b) the name of each substance.

2. Use of prior plans:

(a) indicate whether the environmental emergency plan was based on a plan prepared on a voluntary basis;

(b) indicate whether the environmental emergency plan was based on a plan prepared for another government and provide particulars, if applicable; and

(c) indicate whether the environmental emergency plan was based on a plan prepared under another Act of Parliament and provide particulars, if applicable.

3. Local-level involvement:

(a) give the name of the local authorities, community or interest groups that have been involved in the plan's development, if any; and

(b) identify whether the plan or its relevant parts were made available to the appropriate local authorities (such as police and fire departments) that may be involved in an emergency response.

4. Information for each substance covered by an environmental emergency plan:

(a) the name, CAS registry number and UN number (if applicable) of the substance; and

(b) the nature of activities at the place where the substance is located.

5. The date on which the preparation of the environmental emergency plan was completed.

6. The location of the environmental emergency plan if it is different from the place where one or more substances are located.

SCHEDULE 5
(Subsection 5(1))

INFORMATION TO BE SUBMITTED IN THE NOTICE OF THE IMPLEMENTATION AND TESTING OF AN ENVIRONMENTAL EMERGENCY PLAN

1. Place where one or more substances are located:

(a) the facility name and civic address; and

(b) the name of each substance.

2. The implementation and testing of the environmental emergency plan for the substances mentioned in section 1:

(a) the date of testing; and

(b) the list of all local authorities, community or interest groups, if any, that have been involved in the testing of the plan.

SCHEDULE 6
(Section 9)

DESIGNATED PERSONS FOR NOTIFICATION AND REPORTING OF ENVIRONMENTAL EMERGENCIES

^*NOTE: The specific 24-hour environmental emergency notification telephone numbers for each province are available in Appendix 6 to the "Implementation Guidelines for Part 8 of the Canadian Environmental Protection Act, 1999 — Environmental Emergency Plans"

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Environmental Emergency Regulations (hereinafter referred to as the regulations) are made under subsection 200(1) of Part 8 of the Canadian Environmental Protection Act, 1999 (CEPA 1999). These Regulations will enhance the protection of the environment and human life and health by promoting the prevention of, preparedness for, response to and recovery from environmental emergencies at fixed facilities, from the accidental release of flammable or other hazardous substances.

An environmental emergency is defined in section 193 of CEPA 1999 as:

An uncontrolled, unplanned or accidental release, or release in contravention of regulations made under this Part, of a substance into the environment; or

The reasonable likelihood of such a release into the environment.

Section 200 of CEPA 1999 allows the federal government to establish a list of substances that, if they enter the environment as a result of an environmental emergency, may be harmful to the environment, its biological diversity and human life and health. Substances, as defined under section 2 of the regulations are the 174 substances listed under column 1 of Schedule 1 of the regulations that have a concentration equal to or greater than the applicable concentration listed under column 2. These 174 substances (hereinafter referred to as listed substances) are categorized into either flammable substances, which are listed under Part 1 of Schedule 1 (hereinafter referred to as flammable substances) or other hazardous substances, which are listed under Part 2 of Schedule 1 (hereinafter referred to as hazardous substances). Sixteen of these listed substances are toxic substances on the List of Toxic Substances in Schedule 1 of CEPA 1999 or are substances that the Ministers of the Environment and Health have recommended to be added to the List of Toxic Substances in Schedule 1 of the CEPA 1999.

The regulations apply to any person who owns or has the charge, management, or control of a listed substance at or above the quantity set out in column 3 of Schedule 1 (hereinafter referred to as threshold quantity) at any time during a calendar year, or if a listed substance is stored in a container that has a maximum capacity equal to or exceeding the threshold quantity (see footnote 1) . The person must submit a notice to the Minister containing the information requested in Schedule 2, such as information on the maximum expected quantity of a listed substance at any time during the calendar year along with the facility location and the maximum capacity of the largest container in which the listed substance is stored. The notice must be submitted within 90 days of the coming into force of the regulations and/or of the date the person has first met one of the two conditions mentioned above.

The person must resubmit the notice to the Minister within 60 days after any change to the information provided to the Minister under section 1 or 2 of Schedule 2, or after any increase equal to or greater than 10% of the maximum expected quantity reported has occurred. The Minister must also be notified within 90 days when the person no longer has a listed substance in a quantity equal to or exceeding the threshold quantity or when the capacity of the container for the listed substance has become less than the threshold quantity for 12 consecutive months.

In addition, that person is required by the regulations to prepare, test and implement the environmental emergency plan if:

(1) the maximum expected quantity reported of a flammable substance that is not part of a mixture, and the maximum capacity of the container in which the flammable substance is stored, are equal to or exceed the threshold quantity; or

(2) in cases where the flammable substance is a component of a mixture not listed by the regulations, the quantity of the mixture and the maximum capacity of the container in which the mixture is stored are equal to or exceed 4.5 tonnes; or

(3) the maximum expected quantity reported of a hazardous substance that is not part of a mixture, and the maximum capacity of the container in which the hazardous substance is stored, are equal to or exceed the threshold quantity.

The regulations also require that person to provide the Minister, within six months of the coming into force of the regulations and/or of the date the person is first required to prepare an environmental emergency plan, with a report containing the information requested in Schedule 4. This report indicates that the environmental emergency plan has been prepared.

Within one year of the coming into force of the regulations and/or of the date the person is first required to prepare an environmental emergency plan, the person must also submit a notice containing information requested in Schedule 5, indicating that the environmental emergency plan has been tested and implemented. A notice of certification, set out in Schedule 3, must be signed by the person or duly authorized representative and must accompany all notices and reports to the Minister confirming that the information provided is accurate.

Any existing environmental emergency plan may be used to satisfy the requirements of the regulations unless it does not entirely comply with the regulations. In that case, the regulatee has the choice to amend their existing plan to ensure it meets all the prescribed requirements, or to prepare a new plan that meets their needs as well as the regulatory requirements.

The environmental emergency plan will have to address the types of emergencies that can reasonably be expected to occur, the potential consequences, the associated prevention, preparedness, response and recovery measures and the training required. In addition, the plan must also identify the measures to be taken to notify members of the public who may be adversely affected by an environmental emergency and must also identify the persons who will respond to an environmental emergency and their respective roles and responsibilities.

The regulations will come into force 90 days after the date of their registration by the Clerk of the Privy Council.

Alternatives

During the consultation process leading to the decision to introduce the regulations, a number of alternatives were considered.

Status Quo

The status quo was examined but was not retained, because it would not result in any reduction in the potential risks to the environment and to human life and health from environmental emergencies.

Voluntary Measures

The potential risks to the environment and to human life and health from environmental emergencies were determined to be so great that relying on voluntary action from the affected facilities to develop an environmental emergency plan was deemed to be unacceptable. In addition, voluntary action would not ensure a minimum level of protection, consistent across facilities.

Regulations

The introduction of a regulation under Part 8 of CEPA 1999 was proposed, considered and accepted by Environment Canada and key stakeholders as the most appropriate approach to enhance the protection of the environment and of human life and health in environmental emergency events.

Canadians are becoming more aware of the potential risks associated with environmental emergencies within their communities. They expect that their communities will adopt appropriate emergency management programs that will meet international standards and best practices to address natural and human-caused incidents, including terrorist threats and infrastructure vulnerabilities.

In addition, the knowledge of where certain toxic or hazardous substances exist in Canada and the nature of what is being stored has been a critical missing element in preparing for emergencies from an environmental, health and life protection, and national security perspective. In considering the above-mentioned factors and to ensure the minimum level of protection, it was deemed necessary to require the preparation of environmental emergency plans, which entail prevention, preparedness, response and recovery measures for the safety and protection of the environment and of all Canadians.

The regulations were selected as being the optimal measure to prevent environmental emergencies and to respond quickly and effectively to such events.

Benefits and Costs

Benefits

By requiring targeted facilities to put in place appropriate preventive and safety measures, the regulations bring an immediate benefit of enhancing the safety of the environment and of all Canadians in environmental emergency events. Although many benefits may be realized as a result of the regulations they are difficult to quantify. Consequently, a qualitative analysis of benefits will be provided in this section.

Facilities subject to the regulations will be provided with an "Implementation Guidelines for Part 8 of the Canadian Environmental Protection Act, 1999 — Environmental Emergency Plans (see footnote 2) " (hereinafter referred to as guidelines) to help in preparing the environmental emergency plan. Particularly, the guidelines provide elements to consider when preparing preventive activities, preparedness measures, emergency response and rapid recovery measures. Elements such as information on what citizens should do in the event of an emergency would help these facilities in preparing effective environmental emergency plans.

Consideration and incorporation of these elements in environmental emergency planning bring many benefits to the society at large. These benefits may include human life saved both within and surrounding the facility and avoided health costs from minimized acute exposure to the toxic, flammable and hazardous substances listed in Schedule 1 of the regulations. Benefits can also include avoided costs of remediation to the environment including quality of air, water soil and protection of biodiversity as a result of a quick response time. The recovery rate will also be faster as contacts for clean-up will be set up in advance. Faster recovery implies a shorter disruption in products delivery and less lost workdays.

Another benefit is the Canadian public's heightened sense of awareness that appropriate safety measures have been put in place. Since effective preparedness and emergency response call for co-operation between industries, local communities, local organizations and the different levels of government, these Regulations encourage dialogue between stakeholders and the creation of co-operative relationships formed before emergencies actually occur.

Many of the negative impacts of environmental emergencies in small-and-medium-sized facilities are a result of lack of prevention and preparedness measures. With prevention, preparedness, response and recovery measures in place as a result of the Regulations, negative impacts and the likelihood of environmental emergency events will be minimized. An important factor brought forth by the regulations is the expected heightened confidence that the public will feel due to the Government of Canada's efforts in this area, especially those individuals who live near significant quantities of the particular substances listed in the regulations.

Environment Canada has developed a Web-based reporting system (www.cepae2.ec.gc.ca) whereby the facilities that are subject to the regulations can easily file the required notices, and the public can access information and tools pertaining to relevant legislation and environmental emergency planning. Consequently, the scope of threat and the location of critical facilities will be identified and law enforcement officers and first responders will have access to this information.

Costs

Cost of Compliance

The cost of compliance is largely related to the time and human resources required to prepare or amend, test and implement an environmental emergency plan and to report the required information. Due to the diversity of the operations of facilities subject to the regulations and to the nature of environmental emergency planning (e.g., an environmental emergency plan is site specific) it is difficult to estimate the cost of compliance. Consequently, a qualitative analysis of costs will be presented in this section. However, it is expected that the overall compliance costs for affected facilities will be moderate.

The number of facilities in Canada that will be required to take action under the regulations is estimated to be 1,500, i.e., one-tenth of the 15,000 facilities in the U.S. that are currently subject to similar requirements under the Risk Management Planning Regulation, which was implemented under the U.S. Clean Air Act, July 1990. However, many of the targeted facilities in Canada are part of the chemical industry. Members of the Canadian Chemical Producers' Association (CCPA) represent approximately 90% of the operational capacity in this industry. As part of the association's mandatory "Responsible Care Program", these facilities already have environmental emergency plans in place.

Consultations with representatives of the large facilities in other industries such as petroleum, mining and pulp and paper have confirmed that they already have emergency plans in place for safety, liability and insurance reasons. However, feedback from a wide array of industry indicates that several facilities may need to make some amendments to their existing plans particularly in the prevention and recovery areas. The compliance costs are expected to be largely related to the time and human resources it takes some of these facilities to amend, if necessary, their existing emergency plan.

Facilities that are not likely to have emergency plans in place are small to medium-sized facilities such as those that may store ammonia or chlorine products above the threshold quantities. The regulations will place an additional burden such as paying the cost of hiring specialists to develop environmental emergency plans. Depending on the size, hazard and complexity of the operation, the costs could vary from minor to fairly significant. However, the regulations are not prescriptive in terms of how environmental emergency plans should be prepared. Instead, with the provision of the guidelines, the regulations provide flexibilities vis-à-vis local site considerations. Local environmental sensitivity, surrounding areas and human exposure are then easily considered and assessed, making environmental emergency planning fairly simple and straightforward.

Regarding the submission of required information, it is estimated that less than one hour to seven hours would normally be required to provide the required information in the majority of cases.

Therefore, on average, the overall compliance costs to regulatees are expected to be moderate.

Cost to the federal government

Compliance promotion and enforcement costs are estimated at $350K per annum, which includes salaries and benefits of environmental emergency officers who will be, among other things, processing the notices to be submitted by the regulatees and providing information as required, in order to promote compliance with the regulations. The figure also includes salaries and benefits of enforcement officers who will be conducting inspection to verify compliance with the regulations, and follow-up to any alleged violations.

Consultation

Overall, there was general support expressed for the regulations and for using the list of substances and thresholds developed by the Conseil pour la réduction des accidents industriels majeurs (CRAIM (see footnote 3) ) as the basis for the drafting of the regulations.

Consultation prior to publication of the proposed Regulations

A first round of consultation was held on December 18, 2001. Approximately 40 groups or individuals participated at the sessions. Stakeholders present included targeted industries and their associations (e.g., Canadian Chemical Producers' Association, Canadian Petroleum Products Institute, Mining Association of Canada and Forest Products Association of Canada), various non-government organizations (e.g., Environmental organizations, Federation of Canadian Municipalities, Canadian Association of Fire Chiefs), provincial/municipal representatives and other federal departments and agencies.

There was general support for the regulations. Since the provinces and the territories have the authority to legislate in the area of the environment, the only issue raised by the provinces and territories was the need to avoid the potential duplication of requirements in preparing an environmental emergency plan. An agreement between stakeholders and the federal government was also reached to utilize the list of substances and threshold quantities developed by CRAIM as the basis for the drafting of the regulations.

Consultation during the 60-day comment period

Following the publication of the proposed Regulations on August 10, 2002, a total of 48 formal submissions were received during the 60-day comment period, which collectively contained 253 specific comments and questions. These 48 submissions were from:

•  12 other federal government departments and provinces;

•  31 industry or industry associations;

•  one environmental consulting firm;

•  two law firms; and

•  two non-governmental, environmental or conservation groups.

Of 48 formal submissions, 45 supported the regulations and most submissions were seeking clarification on the following issues: the application of the regulations to mixtures, the plan format, preparation and annual testing of the environmental emergency plan, the definition of a contact person, the listing of plant-owned equipment and requesting further guidance on training and reporting.

Three of 48 formal submissions did not support the regulations. A province, a facility and an industry association provided these three submissions. Generally, these stakeholders felt that the regulations directly duplicated existing institutional practices such as CCPA's mandatory "Responsible Care Program", which requires environmental emergency plans and potential requirements at the provincial, territorial and municipal levels. This would thus have the effect of reducing rather than increasing legal certainty.

Environment Canada maintains that there is no duplication of requirements since currently there are no provincial/territorial regulations in place to legislate the requirements of environmental emergency plans. Nevertheless, since the provinces and the territories have the authority to legislate in the area of environment, Environment Canada initiated dialogue with federal and provincial/territorial agencies to identify and avoid potential duplication. In addition, Environment Canada is prepared to enter into administrative agreements to reduce administrative burden on the facilities that are subject to the regulations by allowing them to respond to only one level of government when submitting required information if and when a provincial or territorial regulation is in place. Environment Canada is also prepared to enter into equivalency agreements necessary. This addressed Quebec's concern about potential duplication.

Environment Canada recognizes that some institutional practices dealing with environmental emergencies may already be in place. Therefore, existing emergency plans can be used to comply with the regulations. However, if the existing plans do not meet the requirements as prescribed in the regulations, they must either be amended, or a new environmental emergency plan must be developed. Facilities may choose the alternative that best suits their needs.

Changes to some of the provisions of the regulations were made and some new provisions were added to reflect stakeholders' comments and concerns.

Major changes made to the regulations after the publication of the proposed regulations:

•  Date of coming into force: It was proposed that the regulations come into force on the date of publication in the Canada Gazette, Part II. Requests were made by industry groups to postpone this date in order to ease compliance. Environment Canada agreed with the comments raised by industry groups and the date of promulgation was changed to 90 days after the day on which the regulations are registered. By postponing the date of promulgation, the regulated community could better prepare for the requirements of the regulations, for the proper training of key personnel and for more effective environmental emergency planning.

•  Identification of places and quantity information (Schedule 2): Previously the submission of a notice containing information requested in Schedule 2 was required only if the quantity of a listed substance was equal to or exceeded the threshold quantity. A second condition triggering the requirement to submit the notice was added in order to identify and raise awareness of potential high-risk areas. The requirement to submit this notice now exists if either the maximum expected quantity of a listed substance at any time during a calendar year or the maximum capacity of the container in which the listed substance is contained, is equal to or exceeds the threshold quantity. This added information about container capacity helps ensure the protection of the environment and of human health and life.

•  Environmental emergency plan: The requirement to prepare, test and implement an environmental emergency plan was triggered solely by the quantity of a listed substance if it exceeded the threshold quantity. This condition was revised to state that an environmental emergency plan is required if both the maximum expected quantity reported of a listed substance and the maximum capacity of a container in which that listed substance is stored are equal to or exceed the threshold quantity.

This change was brought about by concerns and questions from the chemical and petroleum industries, as well as other federal government departments. These stakeholders argued that, if a listed substance whose quantity exceeds the threshold is contained in multiple containers, it poses much less potential risk than if it were contained in a single container. For instance, the total quantity of gasoline held in small storage tanks, jerry cans or drums throughout the site by gasoline distributors and parks could exceed the threshold quantity but because it is stored in multiple containers, it poses minimal risk. Therefore, it was suggested that an environmental emergency plan should only be required of the high-risk cases. Consequently, stakeholders recommended that the trigger for an environmental emergency plan be based on both the quantity as well as the capacity of a container. Environment Canada accepted this view and believes that the revised conditions will identify high-risk facilities. The potential risks and the likelihood of an environmental emergency event will be minimized as safety measures will be prepared and focussed on these high-risk facilities.

Note that those storing quantities of a listed substance at or above the threshold quantity in multiple small containers still have to submit a notice to the Minister containing the information specified in Schedule 2 of the regulations.

It is recognized that mixtures, in which flammable substances are a component, can pose high risks. To provide greater clarity and to better protect the environment and human life and health, new conditions triggering the preparation, testing and implementation of the environmental emergency plan for flammable substances that are part of mixtures were added. Details of these new conditions are outlined in the "Description" section above.

•  Clarifications on the application of the Regulations to a listed substance when it is part of a mixture and calculation of substance quantities: Questions were raised by industry associations, chemical producers, the mining and petroleum industry, as well as other federal government departments requesting clarification on the calculation of a listed substance at a place in Canada.

It was recommended by these stakeholders that when a mixture is found on Schedule 1 of the regulations, then only the threshold for that mixture should apply and not the thresholds for its individual components. There are three flammable substances that are mixtures on Schedule 1: (1) Liquefied natural gas; (2) naphtha; (3) gasoline (motor fuel). Since all listed substances have their own threshold quantities, which were developed by using standard risk management methodologies, it is in line with comments received that these three mixtures on Schedule 1 are to be treated as single listed substances. In addition, when calculating the maximum expected quantity of a listed mixture, only the quantity of the particular listed mixture will be counted and not its individual components, which may also be on the list.

•  Costs of compliance: Many industrial, chemical and environmental groups indicated that, the time required for preparing and implementing a plan is more significant than submitting the required notices. Environment Canada accepted the view that preparing and implementing an environmental emergency plan may be time consuming as this is dependent on the size and complexity of the facility. However, most of the facilities that are subject to the regulations already have environmental emergency plans in place and the incremental costs will be related to the amendment of existing plans to comply with the prescribed requirements. Therefore, overall compliance costs are expected to be moderate.

•  Specific exemptions when determining the maximum expected quantity of a listed substance: New provisions were added to exempt the following quantities:

(a) Quantities of the listed substance that are temporarily stored for 72 hours or less in a container not normally located at the place

The exclusion of temporary storage from the regulations was proposed in order to prevent the need for notification or for the preparation and implementation of environmental emergency plans for listed substances kept at a site for a short period of time. As manufacturers, agricultural and industry associations have indicated, vehicles unloading shipments may also carry large amounts of substances not accounted for in the facility's emergency plan and, without this exemption, would then require the notification to Environment Canada and the modification of the site's environmental emergency plan.

After careful consideration and review, Environment Canada agreed with stakeholders. Consequently, a period of three days or 72 hours, was determined to be sufficient.

(b) Quantities of the substance in a container that has a capacity of 30 kg or less

Quantities of the listed substance in containers that have a capacity of 30 kg or less were also excluded in order to focus efforts on high-risk facilities. The exemption of such small quantities will remove the need for big retailers such as Canadian Tire, Walmart and other distributors to prepare and implement environmental emergency plans for the many substances held at their site in small containers that pose minimal risk.

(c) Quantities of the substance when it is a component of another substance already identified in the regulations

(d) Quantities of the substance when it is a component of natural gas, except if the natural gas is in liquefied form

(e) Quantities of a fuel in a fuel tank that supplies the engine of a conveyance that is used for transportation

(f) Quantities of a substance regulated under the Transportation of Dangerous Goods Act

(g) Quantities of a flammable substance that is a component in a mixture, other than a mixture that is a listed substance, and the mixture has a flash point equal to or greater than 23°C and a boiling point equal to or greater than 35°C

Flammable mixture criteria were identified, in line with those established by the United Nations Economic Commission for Europe (UNECE) and the Transportation of Dangerous Goods Act (TDGA). Mixtures with flash points above 23°C and boiling points of 35°C pose a lesser level of risk. These criteria were adopted in order to clarify the calculations of maximum expected quantity of a listed substance and increase compliance with the regulations.

(h) Quantities of a hazardous substance when the hazardous substance is a gas or a liquid and in a mixture and the partial pressure of the hazardous substance is equal to or less than 10 millimetres of mercury (mmHg)

The existing criteria for other hazardous substances established in the United States Environmental Protection Agency's Risk Management Program (U.S. EPA's RMP) for Chemical Accidental Release Prevention, identifying a partial pressure requirement of 10 mmHg for such mixtures, was also adopted in the regulations. Hazardous substances with a partial pressure of less than 10 mmHg will not readily vaporize and therefore do not pose a significant risk when released during an environmental emergency.

•  Schedule 1: Schedule 1 was categorized into two parts and a few minor corrections were made. Corrections were: (1) corrected typographical error in English version of the list to read: "liquefied natural gas" as opposed to "natural gas"; (2) corrected errors in the threshold quantities for: chlorosulfonic acid: threshold quantity was adjusted from 4.50 tonnes to 2.27 tonnes; cyanogen bromide: threshold quantity was adjusted from 6.80 tonnes to 4.50 tonnes; and hydrobromic acid: threshold quantity was adjusted from 2.27 tonnes to 1.13 tonnes.

As pointed out by both federal government departments and energy and transport associations, there was an error in column 1 of Schedule 1 as the word "liquéfié" was found in the French version but not in the English version. It was not Environment Canada's intent to capture natural gas in its gaseous form. Therefore, the word "liquefied" was added to the English version in order to ensure consistency between the two languages.

Changes to three threshold quantities were made for the following reasons: There was an error in calculating the ERPG (see footnote 4) -2 value for chlorosulfonic acid; cyanogen bromide thresholds were incorrectly adjusted from the LC_{Lo (see footnote 5)} to an IDLH (see footnote 6)  value and Hydrobromic acid was updated to a more recent IDLH value, from 1990 to 1994. These corrections were proposed by leading scientists in the field of risk assessment.

Categorization of Schedule 1: In order to facilitate application to mixtures and promote greater compliance, the list of regulated substances was subdivided into two components of flammable (Part 1 of Schedule 1 of the regulations) and other hazardous substances (Part 2 of Schedule 1 of the regulations).

•  Schedule 2: A few changes were made to Schedule 2. (1) correction was made to read: "Maximum expected quantity at any time during the calendar year"; (2) the request for a National Pollutant Release Inventory (NPRI) number if applicable as cross-referencing between the NPRI and the regulations was removed, as it was considered unnecessary information; (3) clarification was provided on what is meant by "Georeferenced location".

These corrections were made to ensure consistency and precision throughout the regulations. Concerns raised by industry prompted the removal of the NPRI number from Schedule 2. Requesting the NPRI number was thought to be unnecessary and could lead to conflicting information.

•  Schedule 3 and Schedule 6: Schedules have been renamed and new schedules have been added. For instance, the certification requirement was extracted and housed under Schedule 3, and a new Schedule 6 entitled "Notification and Reporting" was also added.

Schedule 6 was added to the regulations in order to comply with environmental emergency reporting requirements under section 201 of the CEPA 1999. Section 201 requires that all environmental emergency events involving substances listed in a regulation made under section 200, in this case, those that are listed under Schedule 1 of the regulations, are to be reported to either an enforcement officer or any other designated person. In order to comply with section 201 of the CEPA 1999, Environment Canada has identified specific contacts within Schedule 6 of the regulations.

Compliance and Enforcement

The regulations will be promulgated under the Canadian Environmental Protection Act, 1999. As a result, when verifying compliance with the regulations, enforcement officers will apply the Compliance and Enforcement Policy for CEPA 1999. The policy sets out the range of possible responses to violations such as warnings, directions, environmental protection compliance orders, ticketing, ministerial orders, injunctions, prosecution, and environmental protection alternative measures (which are an alternative to a court trial after the laying of charges for a CEPA 1999 violation). In addition, the policy explains when Environment Canada will resort to civil suits by the Crown for cost recovery.

When an enforcement officer discovers an alleged violation, the officer will choose the appropriate enforcement action based on the following criteria:

•  Nature of the alleged violation: This includes consideration of the seriousness of the harm or potential harm to the environment, the intent of the alleged violator, whether it is a repeat violation, and whether an attempt has been made to conceal information or otherwise subvert the objectives and requirements of the Act.

•  Effectiveness in achieving the desired result with the alleged violator: The desired result is compliance with the Act within the shortest possible time and with no further repetition of the violation. Factors to be considered include the violator's history of compliance with the Act, willingness to cooperate with enforcement officers, and evidence of corrective action already taken.

•  Consistency in enforcement: Enforcement officers will consider how similar situations have been handled in determining the measures to be taken to enforce the Act.

Contacts

Asit Hazra
Environmental Emergencies Branch
National Programs Directorate
Department of the Environment
Gatineau, Quebec
K1A 0H3
Telephone: (819) 953-1140
FAX: (819) 997-5029
E-mail: asit.hazra@ec.gc.ca

Céline Labossière
Regulatory and Economic Analysis Branch
Economic and Regulatory Affairs Directorate
Department of the Environment
Gatineau, Quebec
K1A 0H3
Telephone: (819) 997-2377
FAX: (819) 997-2769
E-mail: celine.labossiere@ec.gc.ca

Footnote a 

S.C. 1999, c. 33

Footnote b 

S.C. 1999, c. 33

Footnote 1 

These Regulations do not apply to activities covered under the Transportation of Dangerous Goods Act (TDGA), thereby avoiding any overlap or duplication

Footnote 2 

Implementation Guidelines for Part 8 of the Canadian Environmental Protection Act, 1999 — Environmental Emergency Plans is prepared and published by Environment Canada, and is available on CEPA Environmental Registry at http://www.ec.gc.ca/CEPARegistry

Footnote 3 

CRAIM is the Montréal regional chapter of the former Major Industrial Accidents Council of Canada. CRAIM prepared a list of toxic and hazardous substances based on different sources such as Major Industrial Accidents Council of Canada's (MIACC's) List 1 and 2 as well as the US Environmental Protection Agency's Risk Management Program (RMP)

Footnote 4 

Emergency Response Planning Guide (ERPG)

Footnote 5 

Lowest Observed Lethal Concentration (LCLO)

Footnote 6 

Immediately Dangerous to Life and Health (IDLH)

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