Originally published March 26, 2020
By Janet Bobechko, Senior Partner, Norton Rose Fulbright Canada LLP
During the current pandemic there are many competing priorities, including environmental legal obligations that remain in force. At the same time, the pandemic will create new challenges in fulfilling these duties. Below are practical suggestions on how to integrate environmental compliance information that can be used to assist companies to check their compliance status.
COVID-19 teams
Many companies have established COVID-19 teams. Ensure environmental issues are on the team’s radar and include someone (and an alternate) knowledgeable about environmental matters. Keep in contact with outside experts and contractors to understand their availability. Many contractors have already given force majeure notices pursuant to pre- exiting contracts that they may not be able to provide their regular services. Read our update about force majeure here.
Review environmental approvals, licenses and permits (approvals) to confirm operational limits
Many companies find themselves operating at one end of the spectrum, either at minimal levels / ceasing operations, or operating at capacity or being asked to identify potential maximum capacity. Ensure you consult with your internal teams to understand the obligations for ceasing or expanding operations including notification to regulators if changes occur.
Emergency amendments to approvals
Many companies require amendments to their approvals to change their operational requirements. If you find that your company is in such position then communicate with your regulator the need for a change. Ministries are setting up response teams to deal with emergency amendments. Your local ministry contact is the best place to start.
Reporting and compliance deadlines
It is important to confirm deadlines for all approvals and regulatory requirements. Many annual reports are due on March 31 for the prior year. Administrative orders may also have timelines and reporting obligations set out in them.
Missing a deadline in an approval or an order is an offence. Although we are not aware of any official guidance at this time from any of the provinces, territories or federally, companies should assess their ability to meet the regulatory or compliance deadline. If there is a concern that a deadline will not be met due to COVID-19 impacts, an immediate written request should be made for an extension from the local district office and authorized officers.
While Ontario has deemed engineers an essential service, and Quebec has deemed “enterprises involved in environmental emergencies” and enterprises performing “maintenance and operation of strategic infrastructures” to be priority services, many engineering offices are only working remotely. This may hinder access to necessary supports to complete reports and make filing deadlines that require a physical stamp of an engineer.
Designation as an essential service
If your company has been designated an essential service and will continue to operate, then it’s important to understand what other services are also essential. (See our update on essential services across Canada.) Ontario and Quebec have designated essential services restrictions that come into force on March 24 at 11:59 p.m. in Ontario and March 25, 2020, at 12:01 a.m. in Quebec. We expect other provinces and territories to follow suit. We note that generally, the environmental industry sector should largely be available to assist companies to continue their operations. In Ontario the following environmental services are deemed essential through the following paragraphs:
- Businesses that support environmental management/monitoring and spill clean-up and response, including environmental consulting firms, professional engineers and geoscientists, septics haulers, well drillers, pesticides applicators and exterminators, management of industrial sewage/effluent (e.g., for mining operations), and environmental laboratories
- Utilities, and businesses that support the provision of utilities and community services, including by providing products, materials and services needed for the delivery of utilities and community services:
a. Waste collection, waste/sewage treatment and disposal, operation of landfills, and hazardous waste disposal
b.Potable drinking water
c. Electricity generation, transmission, distribution and storage
d. Natural gas distribution, transmission and storage
Similarly, in Quebec, priority services include:
Maintenance and operation of strategic infrastructures, including:
- Energy production, supply, transmission, transportation and distribution (hydroelectricity, fossil fuels, wind energy, biomass energy)
- Maintenance of essential public infrastructures in proper working order (bridges, municipal buildings, etc.)
- Construction, maintenance and upkeep of essential activities in connection, in particular, with public and private infrastructures that may create a risk for public health and safety (private dams, management of hazardous and radioactive waste, etc.)
- Sanitary services and supply chains (for example water treatment plants)
Due diligence
It is important during this time to consider communicating proactively with your regulator on potential compliance concerns. While many government employees are working remotely, there are still regulatory inspections and investigations taking place.
Ensure you have a protocol in place for regulatory inspections and investigations but to also add a new question about COVID-19 self-assessments (i.e., similar questions for all visitors: Have they recently travelled? Do they meet any of the assessment criteria for COVID-19 testing?). It is important that this policy is enforced. If the answer is yes, then ask for another officer to conduct the inspection/investigation. Proactive communication is a way to inform your local officer about current operations and precautions that are being taken during this challenging time. It may also be useful in a subsequent due diligence defense should the need arise.
Emergency and spill response reporting
Review your emergency and spill reporting protocols. Confirm that the people who will respond and report any spill or emergency are still available. Consider adding alternate contact information. Confirm that on-site emergency response supplies are adequately stocked. Check with your emergency response contactors to ensure they are still operational and can respond. If not, then seek alternative contractors. With constantly changing staffing levels at some companies and workforces reduced due to self-isolation and self-quarantine, ensure clear communication exits to ensure how environmental compliance and emergency response are managed.
Civil litigation, provincial offences and regulatory proceedings
In Ontario, pursuant to an order under s. 7.1 of the Emergency Management and Civil Protection Act (the Suspension Order), all provincial limitation periods for civil lawsuits have been temporarily suspended for the duration of Ontario’s declared state of emergency, retroactive to March 16, 2020. Likewise, subject to the discretion of the applicable court, tribunal or decision-maker, all deadlines in pending civil, Provincial Offences Act, and regulatory proceedings have been temporarily suspended.
Notwithstanding the Suspension Order, the Ontario Superior Court of Justice and Ontario Court of Appeal continue to hear urgent civil matters. The Ontario Court of Justice, however, has suspended all Provincial Offences Act matters scheduled until May 29, 2020. Finally, the Environmental Review Tribunal (the ERT) has stated it is postponing and rescheduling in-person hearings. The ERT is using alternative hearing options such as written and telephone hearings where feasible and is using its discretion under the Suspension Order to suspend procedural time periods for matters before it in an effort to continue delivering services and minimizing disruption.
In Quebec, under – Order No. 2020-004 of the minister of health and social services issued on March 15, 2020 (the First Health and Social Services Order), any hearing scheduled before a court of justice, administrative tribunal or other administrative body must be held behind closed doors unless the decision-making authority decides otherwise. Pursuant to a subsequent order issued on March 23, 2020, Order No. 2020-009 of the minister of health and social services (the Second Health and Social Services Order), certain time limits provided for in the Code of Penal Procedure are suspended except for cases deemed urgent by the courts. Furthermore, the Second Health and Social Services Order provided that despite articles 96 and 103 of the Code of Penal Procedure, any search may be authorized by telephone warrant.
Review environmental health and safety policies and procedures
While there are competing interests to keep companies functional and operational, now is a good time to have policies and procedures reviewed to determine if any temporary changes are required as a result of COVID-19 operational realities. In some companies, employees are now working remotely. Consider delegating this review to someone who is now working remotely as opposed to at a facility. Policies and procedures are an important part of operational concerns and are also important to potential due diligence defences.
What comes next?
Companies should continue to consider the implications of changes to their operations if further government -ordered shutdowns are implemented and workforces and supply chains are further affected. Review operational temporary closure plans to ensure critical operations are managed appropriately and key contractors who may be required to assist in any closure continue to be available.
Some regulators have taken to conducting consultations on-line instead of in person. Be aware of this change in communications with your regulator if you are an involved stakeholder.
Many government agencies have stated they will be posting a “frequently asked questions” for the regulated community; however we have not yet seen any at this time.
As the current situation continues to rapidly change, our team is available to assist you across Canada for any of your environmental legal needs.
Janet Bobechko is a Senior Partner at Norton Rose Fulbright Canada LLP and course chair of the CANECT 2020 Brownfields and Excess Soils course and the Environmental Emergencies & Spills course.
