Claire SeabornJoanna Rosengarten

The Environmental Emergency Regulations (the “Current Regulations”) under the Canadian Environmental Protection Act, 1999 (“CEPA”) aim to enhance the protection of the environment and human health in environmental emergency situations by promoting prevention and ensuring preparedness, response and recovery.[1] They require companies or persons who own or manage specified toxic and hazardous substances at or above the specified thresholds to provide required information on the substance(s), their quantities and to prepare and implement environmental emergency plans.

Environment and Climate Change Canada (“Environment Canada”) plans to repeal and replace the Current Regulations with the proposed Environmental Emergency Regulations, 2016 (the “Proposed Regulations”).[2] Two sets of public consultations have taken place – one in early 2014 and the other in the fall of 2016. Environment Canada is currently in the process of finalizing the Proposed Regulations, which they anticipate will be complete by late 2017.

Key changes in the Proposed Regulations

The key changes in the Proposed Regulations are as follows:

  1. the addition of 49 new substances to Schedule 1 and amendment of the thresholds for 3 existing substances, including:
    • 20 substances from the Chemicals Management Plan (CMP) Challenge;
    • 16 substances from the CMP Petroleum Sector Stream Approach (PSSA);
    • 12 strong acids and bases (and revising the threshold for 3 substances that are already regulated under the E2 Regulations);
    • 1 additional substance (ammonium hydroxide);
    • the inclusion of uncontained substances (i.e. bulk material that is lose, kept in piles, or otherwise unpackaged); and
    • modifications to Schedule 1 to consolidate all three parts under a single list;
  2. clarifications regarding environmental emergency plans (e.g. identifying the consequences of the release of the greatest quantity of certain substances);
  3. strengthening public notifications requirements before, during and after an environmental emergency; and
  4. modifications to reporting requirements including periodic reporting to ensure an up-to-date database is available for departmental officials and first responders. [3]

Adding new substances under the Proposed Regulations

To determine if a substance is a candidate to be added to the Proposed Regulations, Environment Canada will continue to use risk evaluation methodology based on the following hazard categories:

  1. Physical: flammable and combustible or oxidizing substances, or those having a potential to cause vapour cloud explosions or pool fires;
  2. Human Health: substances that are toxic by inhalation, are carcinogenic, or are corrosive; and
  3. Environmental Health: substances that are: corrosive, persistent, bioaccumulative, or aquatically toxic.[4]

Summary reports for each of the potential substances are provided online, including their physical characteristics and impacts on human and environmental health.[5] Note that Environment Canada has not yet released a report for the proposed “additional substance”, ammonium hydroxide, but states that the threshold quantity for ammonium hydroxide is equal to the existing threshold quantity of ammonia solution.

Continuing developments

We will continue to follow Environment Canada’s public consultations and the development of the Proposed Regulations. Environment Canada is expected to release a report regarding the 2016 public consultations in early 2017, and to release its final version of the Proposed Regulations in 2017.

[1] “Current Regulations: Environmental Emergency Regulations (SOR/2003-307)” Environment and Climate Change Canada, online: <https://www.ec.gc.ca/lcpe-cepa/eng/regulations/detailReg.cfm?intReg=70>.

[2]  “Invitation to Submit Comments to the Proposed Environmental Emergency Regulations, 2016” Environment and Climate Change Canada, online: <https://www.ec.gc.ca/ee-ue/default.asp?lang=En&n=B2B4A2B2-1>.

[3] “Proposed Environmental Emergency Regulations, 2016” Environment and Climate Change Canada, online: < http://www.gazette.gc.ca/rp-pr/p1/2016/2016-10-08/html/reg2-eng.php#footnote1iRef>.  

[4] “Summary of Risk Evaluation Framework for Determining Quantity Thresholds and Concentrations for Substances under the Environmental Emergency Regulations Set under the Canadian Environmental Protection Act, 1999” Environment Canada, online: <https://www.ec.gc.ca/ee-ue/B2B4A2B2-D46D-460F-BCD9-C742A0F79191/ue-summary-ref-en.pdf>.

[5] “Invitation to submit Comments to the Proposed Environmental Emergency Regulations, 2016 under the Canadian Environmental Protection Act, 1999” Environment and Climate Change Canada, online: <https://www.ec.gc.ca/ee-ue/default.asp?lang=En&n=B2B4A2B2-1>.