Failure to report spills may attract penalties up to $75,000: new administrative penalties in effect for BC land-based spills

In February 2021, more than three years after BC’s land-based spills regime came into force (see our previous legal update), the BC government amended the Administrative Penalties (Environmental Management Act) Regulation (the Regulation) to allow the government to impose fines for contraventions of the Spill Preparedness, Response and Recovery provisions of the Environmental Management Act and associated regulations.

The new amendments create three categories of penalties with maximum limits of $75,000, $40,000 and $10,000.

Of note, the amendments allow administrative penalties of up to $75,000 to be levied for failing to:

• Report an actual or potential spill that is at imminent risk of occurring to the Provincial Emergency Program (by phone at 1-800-663-3456).
• Take specific actions if a spill occurs or is at imminent risk of occurring, including a failure to identify and mitigate spill-related environmental, human health, and infrastructure impacts.
• Have a compliant spill contingency plan in place.

The amendments also allow administrative penalties of up to $40,000 to be levied for non-compliance with requirements surrounding spill contingency plans, persons qualified to deal with spills, and reports to the director on spill response actions, among others. Administrative penalties of up to $10,000 may be levied for non-compliance with spill contingency plan requirements that are specific to pipeline transporters and railway transporters, for example, and non-compliance with reporting requirements to the director on spill reporting. Due diligence defences (i.e., establishing that the person took all reasonable care to prevent the contravention) are not available for administrative penalties, according to the Regulation.

Further details on maximum administrative penalties that may be imposed for different types of contraventions are listed in the table below. 

The BC government’s expanded use of administrative penalties reflects a trend of environmental regulators increasingly turning to administrative penalties as an alternative or additional enforcement mechanism under provincial and federal legislation.

Using administrative penalties can be controversial and may raise questions of constitutionality and due process. In some instances, BC’s land-based spills-related regulations also contain subjective language that creates further uncertainty about whether certain acts or omissions constitute contraventions that could trigger administrative penalties. For example, a penalty of up to $75,000 may be levied against a regulated person who contravenes section 91.2(2) of the EMA by failing to “ensure that the actions necessary to address the threat or hazard caused by the spill are taken.” Section 91.2(2) contains a non-exhaustive list of potential actions that may be included as “necessary,” but it is not clear what other activities may be included or how to assess whether certain actions not taken are “necessary.” The Regulation contains some guidance on the factors that must be considered in establishing the amount of an administrative penalty and an aggrieved person may appeal any penalty to the Environmental Appeal Board within 30 days.   

Table: Summary of New Administrative Penalties for BC’s Land-Based Spills Regime

The authors wish to thank articling student Jennifer Nguyen for her help in preparing this legal update.