Part X (Spills) was added to the Environmental Protection Act in the early 1980’s after a series of large clean-ups were put onto the taxpayer to cover the costs of cleaning contaminated sites. Under Ontario Regulation 675/98 - Classification and Exemption of Spills and Reporting Discharges as required by the Ontario EPA, a call centre for spill reporting was created. The centralized coordination and reporting centre is the Spills Action Centre (SAC), which is staffed 24/7 with province-wide field response capability through the Ministry of Environment’s (MOE) operations division.
In the event of a spill, the Ontario Reg. 675/98 requires the discharger (responsible party) to contact SAC and provide any and all known information to the on-call SAC representative. The Ministry then oversees that the cleanup and disposal of spilled materials is completed in a timely and environmentally acceptable manner. The regulatory power of the Spills Action Centre arises out of Part X of the Ontario EPA. It requires the reporting of spills forthwith and more importantly requires the owner of a spilled material and the person that had control of the material spilled to promptly clean and restore the environment.
Within SAC, for the purposes of recording, spills are profiled into 5 different categories according to the commodity type;
OILS - including crude, gasoline, jet fuel, kerosene and all light and heavy petroleum fuels
CHEMICALS - including acids, bases, solvents, pesticides and other organic and inorganic chemicals
GASES AND PARTICULATES - including smoke, dust/particulates, nitrous oxide, natural gas, etc.
WASTES - liquid industrial, liquid hazardous, sewage, agricultural and other similar wastes
OTHER - feed, foodstuffs and other substances
A review of the most recent analytical data available from the M.O.E. and more specifically SAC’s reporting centre is from 2009 where a total of 5, 154 spills were recorded In Ontario. Interestingly, SAC records the number of spills in three different manners – the number of spills from each category, the number of spills to the receiving media (air, land or water), and spills by volume. In the case of the latter, spills for the purpose of reporting by volume are limited to oils, wastes, chemicals, and other.
The number of spills reported by material category for 2009 are as follows; oils (2,286); gases and particulates (1,394); wastes (797); chemicals (410); other (267). (Source: Spills Action Centre: 2009 Summary Report)
The number of spills reported by receiving media for 2009 are as follows; land (2,146 – 41%); water (1,162 – 23%); air (1,442 – 28%). The remaining spills affected more than one media – 355 to land and water, 29 to land and air; 11 to water, air and land; 9 water and air. (Source: Spills Action Centre: 2009 Summary Report)
Generally most of the smaller spills reported in 2009 (spills less than 1,000 litres) are spills of oil and account for 2,099 of all the spills. The largest spills (spills in excess of 10,000 litres) account for only 26 of the total spills and many of those were waste type spills.
The smallest grouping of spills (spills from 10 to 100 litres) account for nearly 30% of the reported spills by known volume and many are related to fuels and cargo in transportation incidents. It is interesting to note that under Regulation 675/98 Classification and Exemptions under Part X - Spills for Class VI: Motor Vehicles, many of these incidents are exempt from reporting. As such, the large number of releases of products including fuels, lubricants and coolants that are part of the vehicles operating systems are not necessarily reported (some conditions apply and further review of reporting and exemptions will be provided later).
The Act under Section s. 92 of the EPA requires the discharger to report a spill to the Ministry and all other affected parties. This includes the municipality, and where the discharger is not the owner, to the owner of the spilled pollutant. Generally, s. 92 establishes that those who spill, those who cause or permit a spill, and those who had control of the pollutant that spills, are made responsible for reporting the event to SAC as quickly as possible.
The duty to contain and clean up the pollutant and to restore the spill site to “pre-spill” conditions is clearly addressed under s. 93 of the EPA as well. Of concern to the insurer is that BOTH the individual who had control of the spilled pollutant, AND the owner of the pollutant, are responsible for the “containment and cleanup where the spill causes or is likely to cause the adverse effects (as defined in s.1 of the EPA), regardless of contributing circumstances.”
Rights for recovery of costs incurred by third parties, including loss and damages, from the spiller and the owner of the pollutant are addressed under s. 99 and empower the third party without having to prove fault or negligence. The EPA goes further to enable Municipalities to respond to spills, enter onto properties and even allows the Crown to intervene where they determine that a response is inadequate at the expense of the accountable party(s).
Responsibility to clean-up a spill;
(xi) Spill clean-up or emergency response activities, if the person engaging in those activities is,
a) the owner of the spilled material,
b) a person who had control of the spilled material,
c) a municipality,
d) a person or member of a class of persons designated for the purposes of clause 100 (1) (c) of the Act,
e) a person who has jurisdiction and control over a highway,
f) a person with a certificate of approval or provisional certificate of approval under Part V of the Act to undertake spill clean-up or emergency response activities.
EXEMPTIONS TO SPILL REPORTING
Under the current Act and Regulations, there are 10 classifications of spills, ranging from CLASS 1 – Approved Discharges to CLASS 10 – Non Reportable Spills, and everything in between from Motor Vehicles to Dangerous Goods. Under each classification, there are exemptions to the reporting requirements; however, it does not exclude any requirement to clean-up a spill location.
For example, a transportation loss (CLASS VI) involving the spill of gasoline or an associated product, not exceeding 100 litres, is not reportable if the following criteria are met;
a) the spilled product is not a cargo,
b) the spill does not enter and is not likely to enter any waters, as defined in the Ontario Water Resources Act, directly or through drainage structures;
c) the spill does not cause and is not likely to cause any adverse effects, other than those that are readily remediated through cleanup and restoration of surfaces that are prepared for vehicular traffic or paved, gravelled, sodded areas adjacent to those surfaces; and
d) arrangements for the remediation referred to in clause (b) are made and carried out immediately. O. Reg. 675/98, s. 8 (2)
However, if the spill fell under CLASS VIII involving gasoline or an associated product, Ontario Regulation 217/01 (Liquid Fuels) falls under the Technical Standards and Safety Act, 2000, and includes locations defined in those regulations as a bulk plants, marinas, private and retail outlet,
a) not more than 100 litres is spilled in an area restricted to public access
b) not more than 25 litres is spilled in an area with public access
c) the spill does not enter and is not likely to enter any waters, as defined in the Ontario Water Resources Act, directly or through drainage structures;
d) the spill does not cause and is not likely to cause any adverse effects, other than those that are readily remediated through cleanup and restoration of surfaces that are prepared for vehicular traffic or paved, gravelled, sodded areas adjacent to those surfaces; and
e) arrangements for the remediation referred to in clause (b) are made and carried out immediately. O. Reg. 675/98
With the similarities in spill exemption definitions, it is important to have a strong understanding of spill classifications and required reporting practices. A thorough knowledge of regulations will help to ensure quick response with clean-up completed in a timely and acceptable manner, reducing the impact on our environment and costs. For a complete list of classifications and exemptions, visit www.e-laws.gov.on.ca