McLennan Ross Environmental Release Reporting Series Part 3: What To Expect After You Report A Release08-Feb-16
This article is the third in a three-part series intended to provide the reader with a basic understanding of:
- Environmental reporting obligations and the consequences for failing to meet those obligations;
- Best practices for pre-release planning; and
- Information about what to expect after an unauthorized release has been reported.
In Part 1, we provided a general overview of environmental release reporting obligations. In Part 2, we summarized best practices for pre-release planning. In this final installment, we address what to expect after the unauthorized release has been reported. As with Parts 1 and 2, we focus our comments on the Alberta regulatory regime.
As we have previously observed, it is important to understand that this series addresses releases from the environmental law perspective only. This article is not an appropriate replacement for robust, site-specific protocols for release prevention and response, which should include many other considerations, such as occupational health and safety issues, appropriate emergency response measures, and cleanup activities.
Many acts and regulations, including the Environmental Protection and Enhancement Act (“EPEA”), require submission of additional information in writing, sometimes within a very short period after the unauthorized release. Contact a lawyer as soon as practicable after the release to confirm what, if any, additional obligations you have, and your deadlines for meeting those obligations.
Depending on your organization’s familiarity with the regulatory process, and the likelihood of an investigation, you and your lawyer can assess how much involvement of legal counsel you require going forward.
The likelihood of an investigation is impacted by a number of factors, including but not limited to the substance released, the amount and duration of the release, and potential impacts to human health or the environment.
Anticipate an Investigation
Investigators have significant powers to enter and inspect business premises, generally without a warrant. Those powers arise where there is a reasonable belief that a substance is being, has been, or may be released into the environment; where there is reason to believe that an approval has been violated; or for many other reasons specified in the authorizing legislation and regulations.
Personnel should be trained in advance of an investigation about what they can expect. In particular, it is important to ensure they understand that:
- it is a serious criminal offence to either obstruct an investigator or peace officer performing his or her duties, or to destroy or alter evidence;
- they may be required to give statements to the investigators that may be used against the company, but they are not required to sign "statements" that have been drafted by the investigator;
- they may be required to testify for either the company or the Crown (prosecution) at a later date;
- they cannot be compelled to give statements that may be used against them personally; and
- they may be personally and criminally liable for possible offences (potentially creating a conflict of interest with the company).
In addition to training all potentially affected personnel, the designated “Communications Coordinator” described in Part 2 of this article series should be familiar with relevant legislation and regulations and company-specific policies relating to releases. The Communications Coordinator should have up-to-date information on incident response efforts, including the technical aspects of how the release is being addressed and the company’s compliance with the reporting obligations outlined earlier in this article series.
Ideally, no statement should be made by any individual until legal advice has been sought and received.
The end of an investigation is not necessarily the end of your involvement. In the modern world, everything is publicized. If charges are laid, you should expect the Crown to issue a press release commenting on the charges. In such circumstances, your communications personnel should be ready to issue a public response, developed in consultation with your professional advisors.
If an enforcement order is issued, you will have limited time in which to file an appeal.
As illustrated in this series of articles, an unauthorized release gives rise to significant reporting obligations that must be addressed to minimize liability risks for your organization and the individuals associated with it. While our articles are no substitute for timely and specific legal advice, we hope that this series has provided you with a general understanding of the nature of your obligations.
Thank you for taking the time to read these articles. If we can be of any further assistance, please do not hesitate to contact any members of the McLennan Ross LLP Environment, Energy and Resources Law Practice Group.