Canada Gazette, Part I, Volume 152, Number 51: Environmental Response Regulations

December 22, 2018

Statutory authority
Canada Shipping Act, 2001

Sponsoring department
Department of Transport

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The growth of the production of oil and petroleum products in Canada has increased over the past decades. This has resulted in a rise in the number and size of vessels transporting petroleum products, as well as in an increase in the number of oil handling facilities (OHFs). footnote 1 Transport Canada estimates that there are approximately 20 000 oil tanker movements off the coasts of Canada each year (e.g. vessels transporting oil to OHFs). Of these, approximately 17 000 (85%) oil tanker movements are on the Atlantic coast. footnote 2

Government intervention through regulations and monitoring of oil transfer procedures between vessels and marine facilities is intended to mitigate risks through prevention, preparedness and emergency response, which ultimately could reduce the likelihood and impact of a discharge at OHFs and its associated environmental effects. The Canada Shipping Act, 2001 (CSA, 2001) requires that an OHF maintain an oil pollution emergency plan (OPEP) footnote 3 as well as an oil pollution prevention plan (OPPP) footnote 4 to ensure that OHFs are prepared to respond to a discharge of oil during the loading or unloading of a vessel. While the OPEP requirements are laid out in Part II of the Response Organizations and Oil Handling Facilities Regulations (subsection 12(2)), there are currently no federally prescribed requirements for OPPPs, leading to an overall lack of preparedness should an oil spill from an OHF engaged in the loading to or in the unloading from a vessel occur.

Background

In accordance with its mandate, Transport Canada fosters a safe and efficient marine transportation system by promoting environmental responsibility concerning oil spills in waters under Canadian jurisdiction.

In 2013, a report concerning the transportation of hydrocarbons footnote 5 was issued by the Standing Senate Committee on Energy, the Environment and Natural Resources. Transport Canada undertook a review of domestic and international regulatory regimes to compare the transport of hydrocarbons by transmission pipelines, marine tanker vessels, and railcars. footnote 6 Following this report, recommendations were made to enhance the safety elements of bulk transport of hydrocarbon products in Canada. This report aligned with the Government of Canada's commitment to Canadians to pursue responsible economic development while safeguarding the environment through initiatives such as the Oceans Protection Plan. The Plan, which was announced on November 7, 2016, allows an increased capacity on all three coasts in order for the Government of Canada to be in a better position to work closely with Indigenous and local communities in assessing risks and responding quickly to marine emergencies and pollution incidents.

Between 2013 and 2018, the Transport Canada Situation Centre and the Canadian Coast Guard (CCG) reported over 100 separate oil spills into waters within Canadian jurisdiction coming from OHFs and vessels combined. The largest oil spill occurring during that time frame from an OHF was a spill size of 635 L of petroleum product. Although most spills are relatively small in nature, under 20 L, the continued development of oil production and the increase in vessel traffic will pose continued risks associated with pollution releases. Transport Canada amended the CSA, 2001 in 2014 to strengthen pollution prevention and planning for over 300 Canadian OHFs. Most of the amendments to the CSA, 2001 that were made in 2014 have not been brought into force because regulations had to be made.

International

Various international agreements require Transport Canada to fulfill its roles in the prevention and preparedness of marine oil pollution incidents. Canada is a Party to the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) footnote 7 and is required to establish measures for dealing with pollution incidents, nationally and in cooperation with other countries. The International Convention for the Prevention of Pollution from Ships, 1973, as modified (MARPOL), to which Canada is also a Party, seeks to eliminate intentional pollution of the marine environment resulting from ship operations and to minimize accidental discharges of pollutants. The United Nations Convention on the Law of the Sea (UNCLOS) includes measures to prevent, reduce and control pollution of the marine environment. Transport Canada administers and enforces these conventions through the CSA, 2001 and its associated regulations.

Domestic

Transport Canada, in consultation with the private sector, undertook the development of Canada's National Oil Spill Preparedness and Response Regime footnote 8 (the Regime) in 1995. This partnership between government and industry has become one of Canada's most important tools for the preparedness and response to marine pollution incidents. The requirements for the Regime are set out in the Response Organizations and Oil Handling Facilities Regulations, published in 1995, and the Environmental Response Arrangements Regulations, published in 2008. This Regime provides the framework for preparing and responding to ship-source oil spills in the marine environment under Canadian jurisdiction, including those spills that occur during the loading or unloading of hydrocarbons to or from a vessel at an OHF in Canadian waters.

The oil and petroleum product industry has the liability and responsibility to respond to oil spills in the event of a marine incident in Canadian waters, while several federal departments provide the legislative and regulatory framework for the Regime to oversee the industry's preparedness and actions during a spill, should one occur. The CCG manages and monitors the polluter's response, which may utilize its own resources, a response organization, and/or some other service provider to conduct a response. In the event that the polluter is unable or unwilling to respond or is unknown, the CCG will monitor, oversee and manage the response.

OHFs that are located south of latitude 60° N and prescribed vessels footnote 9 that transfer oil between vessels and prescribed classes of OHFs footnote 10 in these locations are required to have an arrangement with a government-certified response organization. Oil handling facilities located north of latitude 60° N are not required to have an arrangement with a response organization, but must meet all of the regulatory requirements in terms of readiness and preparedness should an oil spill occur, according to their level of oil transfer rate.

On July 1, 2007, the CSA, 2001 replaced the Canada Shipping Act, which significantly modernized the legislative framework and included a clear role to "protect the marine environment from damage due to navigation and shipping activities." The CSA, 2001 also added new enforcement tools such as administrative monetary penalties (AMPs) to promote compliance with regulatory requirements.

With the view to modernize the Response Organizations and Oil Handling Facilities Regulations and the Environmental Response Arrangements Regulations, Transport Canada initiated a working group to review these regulations and relevant supporting standards.

The bill formerly known as Bill C-3, Safeguarding Canada's Seas and Skies Act, footnote 11 which received royal assent in December 2014, introduced further changes to the CSA, 2001 to increase federal oversight of OHFs. Some of the amendments "not in force" footnote 12 concerning provisions to the Act respecting the loading or unloading of oil to or from a vessel from an OHF include notifying the Minister and declaring their operations through a notification process in addition to developing the appropriate oil prevention and emergency plans.

There are currently regulatory requirements with respect to OPEPs for OHFs of a prescribed class but no regulatory requirements with respect to the prevention of oil spills/discharges during the loading or unloading of a vessel. This means that when oil is loaded on or unloaded from vessels there are no federal prevention plan requirements for the OHFs to follow. Oil spill incidents have decreased drastically over the years, mostly due to the strengthening of the International Maritime Organization, the CSA, 2001 and regulations. The National Aerial Surveillance Program (NASP) data shows a decrease of 79% of oil volume spilled in waters within Canadian jurisdiction in 2017 compared to 1992, the year the NASP was created.

At the provincial level, there are some existing requirements for OHFs to have OPPPs; however, these plans pertain to the OHF operations only and do not take into account preventative and safety measures specifically required during the transfer of oil between an OHF and a vessel.

The modernization of the Regime will be implemented through two regulatory phases. In the first phase, the proposed Environmental Response Regulations (proposed Regulations) would be made to prescribe requirements for OHFs, and to allow the bringing into force of some of the Safeguarding Canada's Seas and Skies Act provisions related to OHFs. As a result, during that first phase, Part II of the existing Response Organizations and Oil Handling Facilities Regulations and the Environmental Response Arrangements Regulations would be repealed. The second regulatory phase would address specific requirements related to response organizations and their role in response measures related to vessels of prescribed classes and OHFs of prescribed classes during an oil spill incident. Part I of the existing Response Organizations and Oil Handling Facilities Regulations would then be repealed and the remaining provisions would migrate to the new Regulations.

Objectives

The principal objective of the proposed Regulations is to improve the effectiveness of Canada's Oil Spill Preparedness and Response Regime for prescribed vessels and OHFs while transferring oil to and from vessels. Enhanced prevention and planning activities by the OHFs, in conjunction with increased compliance and enforcement by Transport Canada, provides a state of readiness.

The Regime's improvements will better prepare OHFs of prescribed classes during an oil spill incident with new OPPP requirements, which will mitigate the risks of polluting shorelines and sensitive areas, fundamental for Indigenous and local coastal communities.

Description

Some OHFs already have OPPPs; however, provincial requirements for OPPPs do not specifically take into account preventative and safety measures required during the transfer of oil between an OHF and a vessel.

The proposed Regulations would introduce measures for the development of an OPPP under the CSA, 2001, an annual review and update of the plans at OHFs, as well as record keeping of dates and the results of each review. New oil handling facilities will need to declare their operations to Transport Canada within 180 days prior to starting up business.

Specifically, the proposed Regulations would set out the prescribed requirements for the OPPP, and include the transferring of existing requirements for the OPEP contained in the Response Organizations and Oil Handling Facilities Regulations. The prescribed requirements for the OPPP would include elements needed to help prevent an incident from happening, such as

With respect to enforcement, consequential amendments to the Administrative Monetary Penalties and Notices (CSA 2001) Regulations are also included in the proposed Regulations to increase the tools available to the Minister to ensure compliance and better support enforcement actions, where they are needed. Proposed administrative monetary penalties range from $600 to $25,000 for specific provisions of the proposed Environmental Response Regulations based on Part 8 of the CSA, 2001.

"One-for-One" Rule

The "One-for-One" Rule applies because the affected oil handling facilities would incur incremental administrative costs after the implementation of the proposed Regulations. It is considered to be an "IN" under the Rule.

The incremental administrative costs are associated with the proposed requirements of (1) keeping a record of the date and the results of each review of the OPPP and the OPEP, and (2) the requirement for a new OHF to provide notification to the Minister of Transport 180 days in advance of commencing operations related to the loading or unloading of oil to or from vessels.

Table 1. Administrative requirements and estimated costs
Administrative requirements Assumptions Administrative burden costs
1. Keeping a record of the date and results of OPPP and OPEP reviews.
  1. There would be two new OHFs starting operations each year.
  2. It would take approximately 15 minutes to keep a record of the date and results of each review of OPPP and OPEP.
  3. A supervisor or manager would be responsible for keeping the record.
  4. The supervisor's wage rate is $37.61/hour (overhead included).footnote 13

The increase in administrative cost would be approximately $3,731 (constant 2012 dollars) in annualized value.

Given total affected 352 OHFs (existing and new projected in 10 years), the estimated annualized administrative costs per business would be $11 (constant 2012 dollars).
2. Notification prior to commencing operations.
  1. It would take approximately 15 minutes to notify a Transport Canada regional office and advise a marine safety inspector (MSI) by email or telephone about the intention to begin operations for a new OHF.
  2. A supervisor or manager would be responsible for the notification.
  3. The supervisor's wage rate is $37.61/hour (overhead included).footnote 14
  

Small business lens

The small business lens does not apply to this proposal because its estimated nationwide cost impacts are under $1 million annually. The incremental industry costs (compliance and administrative) on affected small businesses would be $234,383 in annualized value. These costs would not be disproportionately high for the small businesses expected to be impacted.

Consultation

Transport Canada consulted extensively on the proposed Regulations at various national and regional forums between 2010 and 2017.

The proposed Regulations were first discussed with stakeholders at the national Canadian Marine Advisory Council (CMAC) footnote 15 meeting in 2010, and a discussion paper was presented at that time. During the summer and fall of 2010, several meetings with response organizations and industry were conducted. Fifty-five comments were received and also considered as part of the 2014 changes to the CSA, 2001. In 2016, a comprehensive discussion paper and standard related to the proposed Regulations was circulated by email to stakeholders through the CMAC Secretariat. An update of the proposed regulatory changes was also provided to stakeholders at the national spring CMAC meeting in 2016. The documents were also distributed directly to key marine stakeholders such as OHFs, footnote 16 response organizations, footnote 17 and regional advisory councils. footnote 18

Generally, respondents were supportive of the proposed Regulations and believe the changes and updates will serve to strengthen the prevention and response capacity. A total of 38 comments were received, reviewed and assessed by Transport Canada during the fall of 2016. Replies to those specific stakeholder comments and questions were prepared and responses were sent in March 2017. Further changes were made to the proposed Regulations following a review conducted by Transport Canada.

Some stakeholders noted that prevention plans may already exist that contain a large portion of the regulatory requirements being proposed, therefore potentially creating unnecessary duplication. To minimize duplication of effort, the proposed Regulations permit an existing OPPP, prepared on a voluntary basis or in accordance with the requirement of another Act of Parliament or the legislative requirements of another government, to be used as long as it meets all the requirements of the proposed Regulations. If the existing plan does not meet all the requirements specified by the proposed Regulations, the plan must be amended to be in compliance with the proposed Regulations. It is anticipated that this flexibility could reduce the costs associated with OHFs.

Additional comments questioned the definition of "changes in personnel," and if this would be considered a trigger for submitting a revised plan to the Minister. Transport Canada indicated that any change of personnel referenced in the plans would require an update. In regard to the Notice to the Minister within 180 days, it was clarified that this proposed requirement pertains only to new OHFs. In terms of duplication of plans, Transport Canada will require two separate plans: one prevention and one emergency; however, if the facility wants to combine both plans, this would be acceptable as long as all of the requirements are met within each plan.

Further comments included the following:

  1. Comment: What anticipated discharges are required to be reported to the Minister? Explain the notion of anticipated.
    Response: The risk is related to the type of occurrences that may lead to an accidental release of petroleum product. For example, collision with a berth or mechanical failure, transfer from a pipe unconnected properly or punctured, valve malfunction, human error, environmental conditions (weather, water currents, etc.), and vessel-related situations (grounding, collision, capsizing, sinking, etc.).

  2. Comment: The information required as part of the Oil Pollution Prevention Plan is largely contained in the Marine Emergency Response Plan (MERP). Some jurisdictions have accepted the MERP as an oil pollution prevention plan so long as it contained the required information. With the proposed Regulations, will a separate OPPP be required?
    Response: To minimize duplication of effort and unnecessary redundancy, if an existing oil pollution prevention plan has been prepared in accordance with the requirements of another act or legislative requirements of another government, it would be accepted as long as the OPPP requirements are included in the prevailing plan. If the existing plan does not meet all the requirements identified, then the plan needs to be amended to be in compliance with the proposed Regulations.

  3. Comment: Can the prevention plan be included in the response plan? Do you require one document or two separate documents?
    Response: Two separate plans are required. However, if a facility would like to combine the two plans, it may, as long as they remain distinct.

  4. Comment: Equipment used in the loading and unloading of oil can be interpreted to be very broad in scope. Further clarification of equipment and what that encompasses is sought. In the past, equipment has been limited to the transfer conduit (i.e. loading arms/hoses). There is a concern that if the equipment were to include equipment on the vessel, we could have difficulty complying with the requirement as we do not have control over the equipment owned and controlled by the marine facility.
    Response: The CSA, 2001 requires prescribed procedures, equipment and resources to be made available for immediate use in the event of a discharge. The requirement must be described in the OPPP, which should reflect the prescribed procedures, equipment and resources. It is the responsibility of the OHF to ensure that the equipment, owned and operated by the OHF and used in the loading and unloading of oil, is maintained as per manufacturer's specifications. The vessel in turn is required to ensure that the equipment used during the transfer operations is maintained as per manufacturer's specifications. The OHF ensures that communication and coordination exist with the vessel in the event of an oil spill.

  5. Comment: Will Transport Canada be auditing the contingency plans against other agency requirements?
    Response: Transport Canada will not be auditing the emergency plan against other agency requirements. The intent of this requirement is to ensure the oil pollution emergency plan takes into account other related emergency or contingency plans from other jurisdictions, e.g. the Canadian Coast Guard, that may affect how the oil handling facility responds to a spill.

  6. Comment: Clarification was requested concerning the Notice to the Minister 180 days before the loading or unloading operations. Does this apply only to oil handling facilities?
    Response: Yes, this requirement is for new oil handling facilities only or, in other words, a person who proposes to operate an oil handling facility.

  7. Comment: Concerning the training of personnel, a clarification was sought if the training needed to be from a specific organization.
    Response: The Regulations will not state the specific name or organization that provides training. The proposed Regulations will state the need to provide training in certain fields, but it will be left to the oil handling facility to decide what course or location is best suited for its personnel. Guidance on the type of training that should be considered for the operator and personnel will be found in the new Environmental Response Standards.

  8. Comment: It was asked if "changes in personnel" is one of the triggers to submit a revised plan to the Minister. Does this mean any change in personnel, or changes to key personnel?
    Response: If there is a change of personnel and those names are referenced in the plan(s), the plan(s) must be updated to reflect those changes. To clarify, personnel are people that are assigned duties to undertake in response to an oil pollution incident at the oil handling facilities. For example, this could be employees and short-term hires.

Rationale

Matters relating to pollution prevention and preparedness activities for prescribed classes of OHFs interfacing with vessels during the loading or unloading of oil are key elements in Transport Canada's effort to reduce pollution and to diminish the overall risk to human health and the environment. The impact of these changes will further mitigate the incident of oil spills between oil handling facilities and vessels, which will benefit Canadians, coastal communities, and the marine environment.

It is important to also note that OHFs may have provincial prevention plans, but these plans do not cover the necessary requirements during the transfer of oil between the OHF and the vessel, which are regulated specifically in the proposed Regulations. In addition to a gap in preparedness, the lack of federally prescribed regulations for OPPPs outlining plan requirements have led to a lack of clarity for the industry. Furthermore, existing CSA, 2001 regulations pertaining to OHFs do not require new OHFs to notify Transport Canada before they commence operations, impacting oversight capabilities: pre-inspections and sharing valuable information on preparedness and response to oil spills. Updating the current regulatory regime for OHFs will enable Transport Canada to provide strong start up oversight to new oil handling facilities as well as the existing OHFs with a review of their oil pollution emergency and prevention plans. New provisions for these requirements were developed through the Safeguarding Canada's Seas and Skies Act. Some of the CSA, 2001 provisions in that Act are not currently in force, and require supporting regulations.

A federally regulated OPPP will provide oversight that may help to reduce operational costs by decreasing the facility's chances of creating environmental contamination that may result in environmental liabilities and large-scale cleanup requirements with associated costs. This will increase efficiency through innovative pollution prevention techniques identified and implemented under the pollution prevention program.

Also, the legislative authorities of the Minister of Transport are being broadened to direct the OHF to review and update or revise their plans if necessary on an annual basis.

Benefits

Improved Canada's Oil Spill Preparedness and Response Regime

Evidence has indicated that an OPPP is one of the most effective and valuable tools to be employed in oil spill preparedness, prevention and response. footnote 19 After the implementation of the proposed regulatory requirement of OPPPs, Canada's Oil Spill Preparedness and Response Regime under the proposed Regulations is expected to improve in terms of better preparation by OHFs and stronger oversight from Transport Canada. OPPPs and OPEPs would be the only plans that cover both the prevention and emergency measures during the transfer of oil between an OHF and a vessel. The proposed OPPP requirement would provide greater clarity and help to reinforce the responsibility of OHFs to prevent discharges as a result of loading or unloading oil in bulk to and from prescribed vessels. OHFs would be better prepared, and compliance rates are expected to increase, which would in turn mitigate risk of oil spills. footnote 20

Reduced pollutants to the marine environment

The proposed Regulations would clearly set out prescribed requirements for the OPPP, including the procedures for equipment and personnel resources that are engaged in the loading and unloading of a vessel, to be prepared to take on the responsibilities and have the capabilities of preventing, mitigating and responding to a discharge of oil. The operator of an OHF would be required to keep a record of the date and the results of each review of OPPP and OPEP for three years.

The OPPP includes effective oil spill prevention practices, which are viewed as critical to ensure the protection of the marine environment and reduce environmental damages from oil pollution incidents. Consequently, it would be beneficial to the Canadian public because there would be fewer risks of marine pollution incidents in Canadian waters.

Costs

After the implementation of the proposed Regulations, affected OHFs would incur incremental costs associated with the development, review and update of the OPPP, with keeping a record of the date and results of each review of the OPPP and the OPEP, with the 180-day notification to the Minister of Transport prior to commencing operations, as well as with the training of personnel in the OHFs who are engaged in the loading or unloading of oil in oil pollution incident response or with any other training in relation to an oil pollution incident.

The incremental industry costs (compliance and administrative) of the proposed Regulations were estimated to be $4.03 million (constant 2017 dollars) in present value over a 10-year period using a 7% discount rate, which is equivalent to $0.57 million (constant 2017 dollars) in annualized value.

Data from Transport Canada for the Prairie and Northern Region (PNR) indicates that approximately 78% of OHFs in the Northwest Territories and Nunavut are territorial government-owned. The incremental cost impacts on those affected OHFs will therefore be on the territorial governments. It was estimated that the total incremental costs on provincial and territorial governments were approximately $0.16 million in present value over 10 years (constant 2017 dollars) using a 7% discount rate, which is equivalent to approximately $0.02 million (constant 2017 dollars) in annualized value.

Conclusion

The benefits of the regulatory changes will enhance Transport Canada's safety oversight of OHFs, help deter and mitigate oil spills, and provide further strengthening in the preparedness and prevention of an oil spill between OHFs and vessels, should one occur. Further, it would be beneficial to the Canadian public because the risk of oil spill pollution incidents in Canadian waters will be reduced.

In summary, the incremental costs on all affected stakeholders (industry and territorial governments) were estimated to be approximately $4.19 million (constant 2017 dollars) in present value over 10 years using a 7% discount rate, which is equivalent to $0.59 million in annualized value (constant 2017 dollars). The average incremental cost per OHF would be approximately $11,451 in present value over 10 years using a 7% discount rate ($1,630 per OHF in annualized value) [constant 2017 dollars].

Implementation, enforcement and service standards

After the implementation of the proposed regulatory amendments, the following stakeholders would be potentially affected:

There will be incremental costs to the Transport Canada Environmental Response Program. The inspectors will be reviewing two plans instead of one. However, the program went under modernization in 2016 and all the regions staffed new positions to tackle the new requirements, without overwhelming existing resources.

Oil handling facilities would be notified of the new requirements by Transport Canada. This would be done by issuing a publication notice by email through Transport Canada's Canadian Marine Advisory Council (CMAC) Secretariat, ship safety bulletins and regional awareness initiatives. Non-compliance would be addressed initially through an education and awareness process prior to proceeding to AMPs, should more serious enforcement actions need to be taken.

The compliance oversight approach for the proposed Regulations would be similar to that taken for the current regulations, which includes maintaining a reporting system, a presence on Transport Canada's website, and responding to inquiries from stakeholders. Regarding the new reporting requirements, it will be necessary for stakeholders to submit updates to their current plans within the year from the date of the last submitted plan, following the coming into force of the proposed Regulations.

The AMPs method of enforcement has been implemented as an alternative to prosecution of offences because of its expeditiousness, which can provide cost savings to Transport Canada. As a matter of general policy, vessels and corporations will be subject to higher penalties than individuals. When there is a violation, the penalty amount would be determined within the range that would be specified within the Administrative Monetary Penalties and Notices (CSA 2001) Regulations using departmental policies and guidelines. If the penalty associated with the violation is not paid or appealed to the Transportation Appeal Tribunal of Canada (the Tribunal) within 30 days of the issuance of the notice of violation, it becomes a debt due to Her Majesty. The Tribunal has full jurisdiction regarding complaints and appeals with respect to administrative monetary penalties under the CSA, 2001, and ensures procedural fairness.

Transport Canada conducts systematic compliance oversight for each region and has the responsibility of providing environmental response specialists who make available their expertise to the industry on regulatory requirements. The Marine Safety and Security Management System provides the framework for Transport Canada marine safety inspectors to conduct inspections and monitor oil handling facilities. Departmental reporting is generated through this framework, where level 1 and 2 OHFs are inspected every three years, whereas level 3 and 4 OHFs are inspected on an annual basis. Environmental response inspectors will inspect the facility to compare the actual site with the OPPP and OPEP submitted to Transport Canada.

Contact

Naim Nazha
Executive Director
Navigation Safety and Environmental Programs
Telephone: 613-991-3131
Email: Naim.nazha@tc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraphs 35(1)(d), (e) footnote a and (f) footnote a, subsection 182(1) footnote b and paragraphs 244(f) footnote c to (h) of the Canada Shipping Act, 2001 footnote d, proposes to make the annexed Environmental Response Regulations.

Interested persons may make representations with respect to the proposed Regulations to the Minister of Transport within 45 days after the date of publication of this notice. All such representations must be in writing and cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Joanne Sherwood, Senior Marine Analyst, Legislative, Regulatory, Policy and International Affairs (AMSR), Marine Safety and Security, Department of Transport, Place de Ville, Tower C, 330 Sparks Street, 9th Floor, Ottawa, Ontario K1A 0N5 (tel.: 613-991–3992; fax: 613-990–1879; email: joanne.sherwood@tc.gc.ca).

Ottawa, December 13, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Environmental Response Regulations

Interpretation

Definition of Act

1 In these Regulations, Act means the Canada Shipping Act, 2001.

PART 1

Vessels

Classes

Classes

2 (1) The following classes of vessels are prescribed for the purposes of subsection 167(1) of the Act:

Exclusions

(2) The classes of vessels that are prescribed by subsection (1) do not include

Definition of oil tanker

(3) In this section, oil tanker means a vessel constructed or adapted primarily to carry oil in bulk in its cargo spaces and includes the following vessels that are carrying a cargo or part cargo of oil in bulk:

Exception — Arrangement with a Response Organization

Exception

3 Paragraph 167(1)(a) and subparagraphs 167(1)(b)(ii) and (iii) of the Act do not apply in respect of vessels that are in waters north of latitude 60° N.

Maximum Quantity of Oil

Maximum quantity

4 For the purposes of paragraph 167(1)(a) of the Act, the prescribed maximum quantity of oil is 10,000 tonnes.

PART 2

Oil Handling Facilities

Classes

Classes

5 For the purposes of sections 167.1 to 167.4 and subsections 168(1) and 168.01(1) of the Act, classes of oil handling facilities that load or unload oil to or from a vessel referred to in section 2 are established according to their oil transfer rate as set out in the following table:

TABLE
Item

Column 1

Class of Oil Handling Facility

Column 2

Oil Transfer Rate (m3/h)
1 1 150 or less
2 2 More than 150 but not more than 750
3 3 More than 750 but not more than 2,000
4 4 More than 2,000

Exception — Arrangement with a Response Organization

Exception

6 Paragraph 168(1)(a) and subparagraphs 168(1)(b)(ii) and (iii) of the Act do not apply in respect of oil handling facilities that are located north of latitude 60° N.

Maximum Quantity of Oil

Maximum quantity

7 For the purposes of paragraph 168(1)(a) of the Act, the prescribed maximum quantity of oil is 10,000 tonnes.

Notification of Proposed Operations

Timing

8 For the purposes of section 167.1 of the Act, the prescribed time to notify the Minister of the proposed operations relating to the loading or unloading of oil to or from vessels is at least 180 days before the commencement of those operations.

Submission of Plans

Time limit

9 For the purposes of section 167.4 of the Act, the time limit to submit to the Minister the plans referred to in that section is one year after the day on which these Regulations come into force.

Oil Pollution Prevention Plan

Content

10 The oil pollution prevention plan must include the following information and components:

Oil Pollution Emergency Plan

Content

11 (1) The operator of an oil handling facility must demonstrate in its oil pollution emergency plan that the operator has the ability to meet the requirements relating to the procedures, equipment and resources referred to in section 13, including by providing the following information:

Other plans

(2) The operator must ensure that the oil pollution emergency plan takes into account any contingency plan for its geographical area that may affect the facility's plan, including contingency plans that are issued by the Canadian Coast Guard or provincial or municipal governments.

Notification — exercise

(3) The operator must submit the exercise program referred to in paragraph (1)(i) to the Minister at least 30 days before the day on which it conducts an exercise.

Plan Reviews and Updates

Annual review

12 (1) The operator of an oil handling facility must review the oil pollution prevention plan and the oil pollution emergency plan annually and, if necessary, update the plans to ensure that they meet the requirements of section 10 or 11, as the case may be.

Review — events

(2) The operator of an oil handling facility must review the oil pollution prevention plan and the oil pollution emergency plan when any of the following events occur and, if necessary, update those plans within 90 days after the day on which the event occurred:

Submission of updates to Minister

(3) If the operator of an oil handling facility updates the oil pollution prevention plan or the oil pollution emergency plan, the operator must submit the up-to-date plan to the Minister no later than one year after the update.

Record

(4) The operator of an oil handling facility must keep a record of the date and the results of each review of the oil pollution prevention plan and the oil pollution emergency plan conducted under subsections (1) and (2), including any updates, and must keep the record for three years after the day on which it is created.

Procedures, Equipment and Resources

Procedures

13 (1) The procedures referred to in paragraph 168(1)(e) of the Act must include the following:

Equipment and resources

(2) The equipment and resources that the operator of the oil handling facility must have available for immediate use in accordance with paragraph 168(1)(e) of the Act are those

PART 3

Consequential and Related Amendments, Repeal and Coming into Force

Consequential Amendments to the Response Organizations and Oil Handling Facilities Regulations

14 The definitions Oil Handling Facilities Standards and on scene in section 2 of the Response Organizations and Oil Handling Facilities Regulations footnote 21 are repealed.

15 The heading "PART I" before section 3 of the Regulations is repealed.

16 Part II of the Regulations is repealed.

17 The schedule to the Regulations is amended by replacing the references after the heading "SCHEDULE" with the following:

(Section 10)

18 The heading "PART I" of the schedule to the Regulations is repealed.

19 Part II of the schedule to the Regulations is repealed.

Related Amendments to the Administrative Monetary Penalties and Notices (CSA 2001) Regulations

20 Part 1 of the schedule to the Administrative Monetary Penalties and Notices (CSA 2001) Regulations footnote 22 is amended by adding the following in numerical order:
Item

Column 1

Provision of the Act

Column 2

Range of Penalties ($)

Column 3

Separate Violation for Each Day
68.021 Section 167.1 1,250 to 25,000  
68.022 Subsection 167.2(1) 1,250 to 25,000  
68.023 Subsection 167.2(2) 1,250 to 25,000  
68.024 Subsection 167.2(3) 1,250 to 25,000  
68.025 Section 167.3 1,250 to 25,000  
68.026 Section 167.4 1,250 to 25,000  
68.051 Paragraph 168(1)(c.1) 1,250 to 25,000  
68.061 Paragraph 168(1)(d.1) 1,250 to 25,000  
68.091 Subsection 168.01(1) 1,250 to 25,000  
68.092 Subsection 168.01(2) 1,250 to 25,000  
68.093 Subsection 168.01(3) 1,250 to 25,000  
68.094 Subsection 168.01(4) 1,250 to 25,000  

21 The schedule to the Regulations is amended by adding the following after Part 13:

PART 14

Violations of the Environmental Response Regulations
Item

Column 1

Provision of the Environmental Response Regulations

Column 2

Range of Penalties ($)

Column 3

Separate Violation for Each Day
1 Subsection 11(3) 600 to 10,000  
2 Subsection 12(1) 1,250 to 25,000  
3 Subsection 12(2) 1,250 to 25,000  
4 Subsection 12(3) 1,250 to 25,000  
5 Subsection 12(4) 600 to 10,000  

Repeal

22 The Environmental Response Arrangements Regulations footnote 23 are repealed.

Coming into Force

S.C. 2014, c. 29

23 These Regulations come into force on the day on which subsection 69(1) of the Safeguarding Canada's Seas and Skies Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.