Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 6


6. Preventing and responding to emergencies

The Canadian Environmental Protection Act (CEPA) contains various authorities related to emergency situations.

Part 8 of CEPA addresses environmental emergencies related to specific substances, defined as the uncontrolled, unplanned or accidental releases (or the likely releases) of those substances. Part 8 authorizes the government to make regulations and take non-regulatory measures, such as guidelines and codes of practice, to prevent, prepare for, respond to and recover from such environmental emergencies. The Environmental Emergency Regulations have been promulgated under this Part, and require the preparation of environmental emergency plans for the substances prescribed in the regulations.

In addition, various provisions throughout CEPA help the Department respond to environmental emergencies. For example, under sections 95, 169, 179, 201 and 212, a person who has contravened the Act is required to report to an enforcement officer on the contravention and to take all reasonable remedial measures to protect the environment and public safety. Sections 99, 119 and 148 provide the Minister the authority to direct an offender to take specific remedial measures. In all cases, the Government is able to take those measures if the person failed to take them and to recover the associated costs.

6.1 Expressly allow for field research related to environmental emergencies

Issue

Section 195 of CEPA authorizes the Minister to release substances in order to conduct field research on causes, effects and response to environmental emergencies. However, the provision does not explicitly exempt the Minister from all potentially applicable prohibitions that would otherwise prevent the research (e.g., section 5.1 of the Migratory Birds Convention Act, etc.), nor does it allow the Minister to authorize other individuals to conduct the research.

Additionally, the definition of environmental emergency is limited to research related to substances that are identified in regulations or interim orders made under Part 8 of CEPA.

Possible Approach to Address the Issue

CEPA could be amended to expand the scope of section 195 to allow for authorization of 3rd party field research related to environmental emergencies and for research on any substance, and to expand the list of provisions of federal laws from which authorized research on environmental emergencies will be exempt.

6.2 Formally allow for exemptions for urgent, time sensitive issues of national security

Issue

The regulatory process through which the Department of National Defense (DND) currently obtains exemptions from CEPA or its regulations may not be appropriate in time-sensitive situations.

Possible Approach to Address the Issue

This issue could be addressed by formally allowing the Governor in Council to issue an order exempting government activities from regulations or provisions of the Act on a case-by-case basis, for urgent, time sensitive issues of national security.

6.3 Expand reporting and remedial measure provisions

Issue

Sections 95 to 98 of CEPA require a person who releases a substance in contravention of section 92.1 or section 93 regulations, or a section 94 interim order, to notify an enforcement officer of the release and to take all reasonable measures to mitigate this release. These provisions also allow enforcement officers to take the measures him/herself or to require the person to take the measures if the person fails to do so. These provisions do not expressly capture all the situations where the release of a substance can pose a health or environmental risk.

In addition, there are some discrepancies between the remedial measures under sections 99, 119 and 148, and between those under sections 95 to 98, 169 and 170, 179 and 180, 201 to 203 and 212 to 215.

Possible Approach to Address the Issue

CEPA could be modified to expressly extend sections 95 to 98 to cover situations where a person has released a substance in contravention of a Ministerial condition or prohibition that restricts the use of a substance, such as under subsections 84(1) and 109(1). In addition, changes to the various remedial measures provisions could be made to ensure their consistency, where appropriate. This is related to the approach identified in item 4.4, which is also related to remedial measures.

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