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Ontario’s new “SPILLS BILL” shows need for EMS effectiveness

“You spill, you pay” is the message of the proposed new Ontario regulations on unauthorized releases, promulgated under the Environmental Enforcement Statue Law Amendment Act, or Bill 133. This absolu…

“You spill, you pay” is the message of the proposed new Ontario regulations on unauthorized releases, promulgated under the Environmental Enforcement Statue Law Amendment Act, or Bill 133. This absolute liability law, which applies to MISA-regulated industries in Ontario including pulp and paper, introduces tough penalties for polluters depending on the gravity of the spill, with the added component that penalties are increased if it can be shown that there was a monetary benefit to the polluter resulting from the release.

The Ontario Ministry of the Environment, which had put a January 12, 2007 deadline on its request for public comment, plans to have the final legislation effective on May 1, 2007.

Ontario’s legislation is a symptom of a new, tougher attitude towards mishaps — as well as towards what might be called mishaps-on-purpose — that affect the environment. It is symptomatic of an increasingly command and control attitude being adopted by Federal, Provincial and Municipal regulators in response to a number of high profile environmental mishaps, such as the tainted water tragedy in Walkerton, ON.

Despite the absolute liability on the polluter, this legislation is some of the first in Canada to encourage the adoption of a formal environmental management system (EMS). If a company can demonstrate that it was duly diligent in its efforts at preventing spills, through an effectively implemented EMS, the assessment for the “gravity” portion of the fine may be substantially reduced.

Clearly, the legislators believe that an effectively implemented EMS is a tool that can substantially mitigate the likelihood and consequence of a spill event. Many members of the industry agree, and have invested significant human and financial resources in applying standards such as ISO 14001 and OHSAS 18001.

The elements of these standards are compatible with the expectations imposed by the new Ontario legislation. An effective spills plan also adopts many of the key elements of these standards, specifically the need to:

* Identify hazards and risks

* Assign responsibilities

* Define human and other resources

* Recognize limitations

* Promote training and awareness

* Prescribe key activities and actions

* Schedule drills and inspections

* Require analysis and reporting

Even for companies that have developed a sound EMS, experience indicates that in many cases, the EMS documents sit in forbidding-looking binders on a shelf, unread and largely ignored. Key systems documentation is necessarily dynamic. Procedures, work instructions, objectives and responsibilities all frequently change. The new Environmental Penalties regulations are not satisfied by a “been there, done that” approach to environmental management. Effective implementation is key. It holds that the EMS must be an integral part of the company’s business management system. Only then can the company be deemed to have exercised “all reasonable precaution.”

Most organizations do not use ISO 14001 to its full potential, and adopt a minimalist approach to environmental management. It can be used as a management tool to identify and research new technologies that may ‘leapfrog’ more traditional and less sustainable processing technologies. It is most effective when fully integrated with quality, health and safety systems, and used as a navigational tool to support decision-making. It can be used to help organizations steer through the complex maze of financial and non-financial indicators available to measure business performance.

Going one step further, the EMS can support progress toward sustainable development. It provides a general framework for action, and is flexible enough to allow for the incorporation of ‘beyond compliance’ and ‘beyond environmental’ initiatives. It can be employed to help engage and manage relations with neighbouring communities, regulators, shareholders and other stakeholders.

Engaging these stakeholders and informing them of your efforts to mitigate the potential for spill events, in other words enhancing the transparency of your environmental management activities, will go a long way towards protecting goodwill and your company’s ‘social license to operate’ in the event of a significant spill event.P&PC

James Hartshorn, M.Sc., MBA, CEA, is an environmental management consultant with Golder Associates Ltd., part of a global group of companies involved in geotechnical and environmental engineering. He can be reached at jhartshorn@golder.com, 905.567.4444.

Ontario’s new law on unauthorized releases, Bill 133, promises tougher penalties for spills, with particular attention to spills where there was monetary benefit to the spiller. It is an example of a new, command-and-control environment in many jurisdictions. In Ontario’s case, having an effective Environmental Management System in place and operating can help reduce fines. This article talks about this and other benefits to having a living, breathing EMS.