2.8 Part 8: environmental matters related to emergencies

The evaluation identified three expected outcomes for Part 8:

1. Emergency preparedness, prevention response and recovery more effective.
2. Plans in place for toxic substances whose accidental release poses a significant risk.
3. Regulations in place that enable efficient recovery of costs.

Part 8 of the Act provides authorities to require environmental emergency plans for substances once the Ministers of Environment and Health have declared them toxic. It further provides the authority to establish regulations respecting emergency prevention, preparedness, response and recovery for the uncontrolled, unplanned or accidental releases of a substance that has been identified as posing potential harm to the environment or to human health.

Part 8 also provides authority to issue guidelines and codes of practice. It establishes a regime that makes the person who owns or controls the substance liable for restoring the damaged environment and for the costs and expenses incurred in responding to an environmental emergency.

The evaluation found that all relevant Ministerial obligations have been satisfied:

• Section 197(1) - Consultations have occurred with the Canadian Environmental Protection Act (CEPA) National Advisory Committee (NAC) for Implementation Guidelines for Part 8 of CEPA 1999 - Environmental Emergency Plans.⁸³
• Section 198 - Notice was published in the Canada Gazette that the Minister of the Environment developed the Implementation Guidelines for Part 8 of CEPA 1999 - Environmental Emergency Plans.

The Environmental Emergency Regulations⁸⁴ came into force in November 2003. These regulations require any person who owns or manages any of the identified substances above a specified threshold to notify the Minister of their location and quantity and to prepare and implement the appropriate environmental emergency plans. All 68 substances currently on CEPA 1999 Schedule 1 have been reviewed, and 16 of these, along with 158 others, are included on the list of substances requiring environmental emergency plans.

Environment Canada has worked with the provinces to avoid overlap and duplication and provide notifiers with a single point of contact in the event of a spill or another environmental emergency. These single contact points are clearly documented within the Environmental Emergency Regulations.

Environment Canada also developed the Implementation Guidelines for Part 8 of CEPA 1999 - Environmental Emergency Plans as a companion document to the regulations. These new guidelines provide clarification and guidance to those who have to comply with the Environmental Emergency Regulations. The guidelines underwent multistakeholder consultations, and the CEPA National Advisory Committee was also engaged through a series of regular briefings.

To date, 4427 Notifications of Substance and Place have been received, covering 2892 different facilities and 97 of the 174 identified substances requiring environmental emergency plans. Environmental emergency plans are required for 1898 facilities.

Currently, amendments to the regulation are underway to add 39 substances or compounds to the environmental emergency regulations. These substances include 37 substances or compounds that relate to 15 CEPA Schedule 1 substances, as well as two non-Schedule 1 substances of concern.

Two of the four identified priority actions have been addressed:

1. Remove backlog of assessing risk of emergencies from substances declared toxic - Assessment of risk of emergencies from toxic substances has been completed. All CEPA 1999 Schedule 1 toxics have been assessed using the environmental emergency planning risk evaluation framework.
2. Develop and implement a national strategic framework for implementation of the environmental emergencies program - A draft Results-based Management and Accountability Framework has been prepared as a national strategic framework for implementation of the environmental emergency program.

The remaining two actions identified in the submission have not been satisfied:

1. Review and maintain up-to-date agreements with partners - Agreements with partners have not been reviewed and revised, except for the agreement with Alberta, which is currently being renegotiated. The Environmental Emergencies Branch has administrative agreements with all provinces and territories except Quebec. CEPA 1999 has a five-year mandatory termination period. Other agreements, either under the Fisheries Act or where no specific legislative base is referenced, have no termination clause and are periodically discussed and maintained with partners.
2. Enhance capacity to seek compensation from polluters and restoration costs - Capacity to seek compensation from polluters and to recover restoration costs has not been enhanced. However, a draft Results-based Management and Accountability Framework for strengthening the Environmental Damages Fund has been developed and the Fund has been evaluated.⁸⁵

The Department faces several issues and challenges with regard to environmental emergencies:

• Compliance awareness of the Environmental Emergency Regulations is nationally inconsistent. For example, 40% of received notices are from Prairie and Northern Region, which may suggest a low level of awareness in other regions. Awareness and compliance across small and medium-sized enterprise facilities are considered especially low.
• The environmental emergency program relies heavily on its partners, particularly the provincial governments. A long-standing challenge for the program, identified in the Department's 2001-02 Operational Review, is that its priorities and funding are "event-driven" and difficult to plan for in a comprehensive manner. Further, the bulk of the responsibility of the program falls on the partners. Therefore, it has been difficult to develop a comprehensive and stable program that involves a number of partners, each with changing roles, responsibilities and capacities.
• Although the authority to undertake cost recovery exists, the requisite systems and procedures to ensure the efficient recovery of costs from polluters are lacking. Several problems are associated with seeking recovery of costs from polluters. Concerns include demonstrating burden of proof; legal costs; the definition of what costs polluters should be liable for; the definition of "restored" and the boundary on "restoration of environment" costs; and accessibility to recovered funds to use either as reimbursement for costs or to fund restoration activities. The environmental emergencies program faces difficulties in keeping pace with the decisions reached with respect to the risk assessment of existing substances. Each time a substance is added to the CEPA 1999 Schedule 1 List of Toxic Substances, it must be assessed with respect to the environmental emergency risk it poses. Where risks are significant, the Environmental Emergency Regulationsmust be updated, and additional awareness and enforcement activities need to be undertaken. The first amendment to the regulations, adding 39 new substances, has come only two years after the regulations first entered into force.
• While the number of prepared plans is being tracked, the Department lacks a measurement and reporting system to determine the environmental protection results that the regulations are having.

The expected outcome of making emergency preparedness, prevention, recovery and response more effective is likely being achieved through the Environmental Emergency Regulations.

The expected outcome of having plans in place for toxic substances whose accidental release poses significant risk is being achieved. Under the Environmental Emergency Regulations, a total of 174 substances, including 16 CEPA 1999 Schedule 1 substances, are included on the list of substances requiring environmental emergency plans. All 68 substances currently on CEPA 1999 Schedule 1 have been reviewed.

The expected outcome of having regulations in place that enable the efficient recovery of costs is unlikely to be achieved. The Department's progress to date has not led to regulations for the recovery of costs from polluters. However, the Environmental Damages Fund is in place to seek restoration damages from polluters. The Department has created a number of documents designed to assist in conducting damage assessments and estimating restoration costs.