3.0 Application of Section 199

• 3.1 Requirements for Environmental Emergency Plans - CEPA Subsection 199(1)
• 3.2 Contents of Notice - CEPA Subsection 199(2)
• 3.3 Extension of Time - CEPA Subsection 199(3)
• 3.4 Plan Prepared or Implemented for Another Purpose - CEPA Subsection 199(4)
• 3.5 Where Partial Requirements are Met - CEPA Subsection 199(5)
• 3.6 Application of Provisions re: Declarations and Keeping Plans CEPA Subsection 199(6)
• 3.7 Submission of Plans - CEPA Subsection 199(7)

According to the CEPA subsection 199(1),

The Minister may require a person or class of persons to prepare an environmental emergency plan for a substance that is on the List of Toxic Substances or has been recommended or ordered to be added to the List. For substances which have been recommended or ordered to be added to the List of Toxic Substances, a notice indicating this must have been published in the Canada Gazette before an environmental emergency plan may be required. Note that the requirement for environmental emergency plans can only occur in relation to those aspects of an environmental emergency that:

1. has or may have an immediate or long-term harmful effect on the environment;
2. constitute or may constitute a danger to the environment on which human life depends; or
3. constitute or may constitute a danger to human life or health in Canada.

a) Factors that may be taken into consideration when determining which toxic substances should be subject to the requirements of section 199

The Minister may take the following factors into consideration when determining whether to publish a notice requiring the preparation and implementation of environmental emergency plans:

• data on the quantity and use in commerce or storage of the substance in Canada to determine potential for exposure;
• data to determine the toxicity and threshold levels of these substances;
• data which is routinely gathered relating to uncontrolled, unplanned or accidental releases of these substances (i.e., frequency and severity of spills);
• which toxic substances, when released into the environment, present an immediate or long-term harmful effect on the environment, a danger to the environment on which human life depends, or a danger to human life or health; and
• whether the risks posed by these substances are being adequately managed by existing federal or provincial regulations or legislation. An examination of whether or not the regulations or legislation achieve or take into account the environmental goal of preventing, preparing for, responding to or recovering from a sudden, unplanned or accidental release of the toxic substance. In the event that regulations or legislation have not yet been developed for specific substances, this information may also be incorporated into the assessment process.

The Department may make a recommendation to the Minister that an environmental emergency plan should be required under subsection 199(1) where the sudden, unplanned or accidental release of the substance presents an immediate or long-term harmful effect on the environment, a danger to the environment on which human life depends, or a danger in Canada to human life or health. At any time, the Minister may request that environmental emergency plans be prepared and implemented for substances already placed on Schedule 1 or substances recommended or ordered for addition to the List of Toxic Substances. Information about the CEPA and the substances on Schedule 1 is available from the following website: www.ec.gc.ca/lcpe-cepa.

It is important to note that, under the CEPA, it is possible for the ministers of the Environment and Health to propose a guideline, code of practice or memorandum of understanding to manage the risk posed by a toxic substance. However, these do not have the force of law. While encouraging the use of one of these non-regulatory instruments to manage toxic substances, the Minister may determine that the environmental goal respecting environmental emergencies is not being met and therefore request that an environmental emergency plan be prepared and implemented.

b) Factors that may be taken into consideration when determining who will have to prepare and implement an environmental emergency plan under section 199

The Minster may take the following factors into consideration when determining who will be required to prepare and implement an environmental emergency plan under section 199:

• the commercial, manufacturing, processing or other users and sources of CEPA toxic substances identified under the process described above that meet the categories specified in Appendix 1; and
• all other commercial, manufacturing, processing or other activities from which the Minister is satisfied that the uncontrolled, unplanned or accidental release of the substance:
  1. has or may have an immediate or long-term harmful effect on the environment;
  2. constitute or may constitute a danger to the environment on which human life depends; or
  3. constitute or may constitute a danger to human life or health in Canada.

For persons or companies with several facilities or areas where toxic substances are located, an environmental emergency plan specific to each location may generally be required. As with all other environmental emergency plans, these plans must address the prevention of, preparedness for, response to or recovery from an uncontrolled, unplanned or accidental release of a toxic substance at that location. For each location, a declaration of preparation and implementation should be submitted, and a site-specific environmental emergency plan must be prepared and kept at that location.

c) Subsection 77(6) statements

For each substance that they propose to add to the List of Toxic Substances as a result of a review or assessment conducted pursuant to subsection 77(1), the ministers of the Environment and Health will publish, under subsection 77(6), a summary of the screening risk assessment, review of a decision of another jurisdiction or of a report of the assessment of substances on the Priority Substances List and a statement indicating how they intend to develop a proposed instrument or regulation respecting preventive or control measures in relation to that substance. Among other things, this statement may indicate whether environmental emergency plans will be required. The assessment of substances on the second Priority Substances List will be completed by December 31, 2000, and reports of those assessments will state whether or not the substances are toxic within the meaning under the CEPA and recommended for possible addition to Schedule 1. Information on the status of these assessments is available from the Environment Canada's Commercial Chemicals Evaluation Branch website at www.ec.gc.ca/cceb1/eng/cc_index.htm.

CEPA subsection 199(2) states that

This subsection sets out the type of information that must be included in the Canada Gazette notice requiring that an environmental emergency plan be prepared. The notice will describe the substances, the time frame for preparation, the time frame for implementation and any other matter considered necessary.

For those persons or classes of persons required to prepare an environmental emergency plan, a notice will be published in the Canada Gazette indicating who specifically is required to prepare and implement an environmental emergency plan and with what specifically the plan must deal.

While certain core elements should be incorporated into an environmental emergency plan, the subsection-199(1) notice will attempt to avoid prescriptive language regarding the exact measures to be included in the environmental emergency plan. Rather, the notice will describe the environmental objectives to be achieved. As such, it may include explanatory notes that are separate from its compulsory content and that set out the issues of concern to the Minister of the Environment and, where appropriate, refer to relevant examples, models or guidelines.

Appendix 2 contains a draft model of a subsection-199(1) notice.

The Minister may issue guidelines and codes of practice to guide the preparation of environmental emergency plans. Appendix 3 provides a list of references that may be utilized when preparing an environmental emergency plan covering prevention, preparedness, response and recovery.

It is recognized that the complexity of environmental emergency plans may vary depending upon the circumstances for each individual or company required to prepare and implement a plan. However, in general, environmental emergency plans should contain:

• a senior-level statement committing to implement and maintain the environmental emergency plan;
• an identification of what types of emergencies might possibly occur and the associated prevention, preparedness, response and recovery capabilities;
• a description of the roles and responsibilities of individuals during an environmental emergency;
• accurate contact lists for emergency resource personnel and equipment;
• detailed training logs for emergency response individuals; and
• a means for ensuring that the plan is current, comprehensive and effective (e.g., routine testing and updating of the plan).

Environment Canada strongly recommends that persons preparing an environmental emergency plan share the plan with local and provincial emergency authorities.

CEPA subsection 199(3) states that

It may not be possible for all parties to meet the time frames specified for preparing or implementing an environmental emergency plan. This subsection gives the Minister the authority to extend the time limit set in a notice made under subsection 199(1) when a written request for an extension has been submitted before the end of this limit or another extension, and the Minister believes that extra time is necessary.

In general, the Minister will provide a period of approximately six months after publication of the subsection-199(1) notice for the preparation of environmental emergency plans and a further six months for completion of the implementation of the plans. In order for the Minister to decide whether an extension should be granted, a request must be submitted to the Minister prior to the end of the time limit set in the notice or in another extension, and the Minister must be of the opinion that further time is necessary.

An environmental emergency plan should take into consideration prevention, preparedness, response and recovery and can be considered implemented when it has been written and is operational to the point where the person submitting the declaration can expect to successfully deal with all aspects of an environmental emergency. Implementation includes prevention, preparedness, response and recovery documentation, access to the identified response resources, training, and testing sufficient to validate the plan. Under Part 8, recovery from an environmental emergency means restoring any part of the environment damaged by or during an emergency.

Appendix 4 contains draft forms for applying for time extensions. Since it is possible that a request for an extension may not be granted, applications for time extensions should be made as early as reasonably feasible.

According to the CEPA subsection 199(4):

The intent of this subsection is to avoid duplicating efforts. Work completed to prepare and implement environmental emergency plans to meet requirements of federal or provincial legislation or on a voluntary basis may be used to meet the requirements in the CEPA and allows for a "one plan" approach.

Environmental emergency plans prepared on a voluntary basis or pursuant to the requirements of other federal or provincial legislation may be deemed to meet some or all of the requirements of the subsection-199(1) notice.

Where the existing plan does not meet all of the requirements of the subsection-199(1) notice, the person shall either amend the previously completed plan or prepare an additional plan that meets the remainder of the requirements. In any event, all persons using a pre-existing plan to satisfy a subsection-199(1) notice shall file both a declaration of preparation and a declaration of implementation.

Environment Canada is committed to ongoing consultation with federal departments, including the Department of Fisheries and Oceans, Transport Canada, and Health Canada with a view to avoiding duplication with emergency planning requirements under other legislation, such as the Canada Shipping Act or Transportation of Dangerous Goods Act.

CEPA subsection 199(5) specifies that

A person must meet all of the requirements set out in a notice to prepare and implement an environmental emergency plan. If a plan prepared on a voluntary basis or for another government or department is incomplete, it must be amended or a new plan prepared that meets the remainder of the requirements.

This subsection clarifies the process for using a plan prepared for another purpose. The plan may have to be amended or a new environmental emergency plan prepared which meets the remainder of the requirements of the notice. The requirements set out in the subsection-199(1) notice to prepare and implement an environmental emergency plan must be met, either through an existing, amended or new environmental emergency plan.

According to the CEPA subsection 199(6),

CEPA Sections 58 and 59 contain the following provisions:

CEPA Subsection 58(1) states that

CEPA Subsection 58(2) states that

CEPA Subsection 58(3) states that

CEPA Subsection 58(4) states that

CEPA Section 59 states that

As with the declarations required for pollution prevention plans, the same provisions apply to environmental emergency plans. A person does not have to submit the plan to the Minister, but has 30 days after the end of the time period specified in the notice for the preparation of the plan and 30 days after completion of implementation of the plan to declare that fact in writing to the Minister. The person must keep a copy of the plan at the place for which it was prepared and where it was implemented. The person must also amend the declaration if any information in the declaration becomes false or misleading.

Parties required to prepare and implement an environmental emergency plan must submit two declarations to the Minister:

• the first within 30 days after the end of the period provided to prepare the plan indicating that the plan has been prepared and is being implemented; and
• the second within 30 days after completion of the implementation of the plan and no later than 30 days after the implementation date specified in the notice, indicating that the implementation of the plan has been completed.

In addition, if at any time any of the information contained in either of these declarations becomes false or misleading, an amended declaration must be filed within 30 days after that time.

The first declaration (preparation of plans) shall provide information on :

1. facility data;
2. an indication of environmental emergency prevention, preparedness, response and recovery measures identified in the plan;
3. previous environmental emergencies; and
4. response personnel training and plan testing information.

The second declaration (implementation of plans) shall confirm that the implementation of the environmental emergency plan described in the declaration of preparation has been completed.

As previously indicated, a plan will be considered implemented when it has been written and is operational to the point where the person submitting the declaration can expect to successfully deal with all aspects of an environmental emergency.

As discussed in Section 3.1, for persons or companies with several facilities or areas where toxic substances are located and who are required to prepare and implement an environmental emergency plan, a plan specific to each location may generally be required. There may be instances however, where the prevention of, preparedness for, response to or recovery from a sudden, unplanned or accidental release of a toxic substance at that location is either covered under a larger plan (e.g., an area-wide environmental emergency plan) or under a company wide plan for all its facilities.

For each location for which an environmental emergency plan is required, a declaration of preparation and a declaration of implementation must be submitted. If the declaration being submitted covers multiple areas or facilities or sites or substance(s) of concern, detailed information for each location, as per Appendix 5, must be provided. A copy of the environmental emergency plan must be held at each location.

Appendix 5 contains draft forms for declarations of preparation and implementation.

Under the terms of the CEPA subsection 199(7),

The Minister may require a person to submit all or part of an environmental emergency plan. The Minister may request to see an environmental emergency plan where an inspection indicates that follow-up action is required, where a plan has been prepared pursuant to a court order or an environmental protection alternative measures agreement, or where the substances involved present a serious environmental concern.

The Minister may require the submission of all or part of the plan when it has been determined that there is a need to develop further risk management measures in relation to specific substances in the plan. It may also be necessary to submit an environmental emergency plan required pursuant to a court order issued under subsection 291(1) or under an environmental protection alternative-measures agreement negotiated between the Attorney General of Canada and an alleged offender.