Environmental Science & Engineering - www.esemag.com - May 2005
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Increased penalties for corporate officers and directors

The proposed Ontario Bill 133 puts new power into the Ontario Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA) as corporate officers and directors can be held responsible for spills and releases into the environment. Bill 133 will place the onus on directors and officers of corporations to prove and ensure that all reasonable care or responsible care has been taken to protect the environment. The engineering of new processes, planning, designing a new facility or expansion, will all have to provide protection for the environment through effective prevention, preparedness, and response strategies.

At this time Ontario Bill 133 is targeted at the companies regulated under the Municipal-Industrial Strategy for Abatement (MISA) regulation. The new environmental penalty system will allow Ministry of the Environment officials to immediately issue environmental penalties against corporations and individuals who are in violation of the EPA and OWRA. A requirement that a person pay the environmental penalty applies, even if the person took all reasonable steps to prevent the contravention and even if, at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts that, if true, would have rendered the contravention an innocent act. Minimum fines for corporations and individuals will rise and jail terms of up to five years will be imposed. This system is designed to reach the personnel with the highest level of responsibility, authority and accountability.

Whether a company is regulated by MISA or not, Bill 133 should be a wake-up call for all corporations and individuals. If Bill 133 is expanded to cover all corporate officers and directors, environmental penalties could be levied against violators of environmental regulations, orders, permits and certificates of approval. The writing is on the wall concerning plant environmental initiatives and companies that have no structured programs in place.

Officers and directors looking to improve their legal position should consider implementing an ISO 14000 Environmental Management System (EMS). The ISO 14000 standard can be used as a guideline for developing a location/site-specific EMS program. In Schedule 1 of “A Framework for Ontario’s Environmental Leaders’ Program” there is a list of generally accepted EMS standards that are acceptable to the Ministry.

Officers and directors who are not current on environmental issues should be brought up to speed as quickly as possible.They need to know what techniques, procedures, supplies and equipment are ‘tried and true’ and work well, what is not working, and what is new and could improve their response capability.

Get started Officers and directors can don personal protective equipment such as work boots, hard hats and safety glasses, and then conduct a walk through of their facilities. Managers, supervisors and key personnel should be on hand to answer questions and to provide detailed information about what is required to respond effectively. Use a Quickcheck-system as a guide to assess the preparedness and response capability. Rate risks and hazards and determine training criteria, response supplies and equipment requirements. As a minimum, a Quickcheck-system should be user-friendly and score the concerns and opinions of individuals ranging from corporate directors, officers, to managers, workers and visitors. A simple rating system may be created by using a scale of 1- 5, with 1 being of minimal concern and 5 being a severe condition.

The broad-based approach can cover a wide variety of areas ranging from a warehouse to the storage of laboratory chemicals. Subject matter should include: response risk factors, impact to people, property, the environment and business. This process is to be treated as an act of responsible care.

When spills get out of control, the multiplication factor does not increase by 2, 4, 6, 8, and 10. It increases by 2, 4, 8, 16, 32, and 64. The leap from 32 to 64 can be challenging for response personnel, communication systems and emergency response plans.

Considerations for response capability

Establish a Preparedness and Response Capability Assessment rating system to identify high-risk areas. The Quickcheck-system should determine impacts and scales of impact to people, property, the environment and business. (The Quickcheck process for officers and directors will be presented at the May 11 & 12, 2005 CANECT Conference, see www.esemag.com.) This common sense approach will guide the experienced as well as the novice through a process to identify gaps, focus on areas of concern, and identify areas that require further study.
Product specific training should include testing and evaluating chemicals in spill situations as this may be necessary to determine the possibility of runaway reactions and to check that contaminants have been cleaned up, etc.
Select personal protective equipment (PPE) to meet worst-case scenarios. Dupont™ has a new suit for chemical and flash fire that is manufactured with Tychem® ThermoPro (www.personalprotection.dupont.com/en).
Select spill response supplies for each application. Many spill kits do not contain supplies that will provide adequate capability to slow, divert or contain spills. Polyethylene sheeting is a diversified response item. Sections of blanket material can be ripped into 18 inch square pads but 18 inch square pads cannot be joined to make a long section of blanket material for increased response capability.
Locate response supplies/kits in areas where they will be required. Determine if the quantity of supplies and equipment is sufficient to maintain control of a specific spill.
Store response equipment in a designated area, including self-contained breathing apparatus, pumps, booms, hoses, etc. Specialized equipment to help meet Ontario Bill 133 could include:
1. Response equipment such as In- Viro-Drum, a diesel powered industrial vacuum system capable of vacuuming solids, sludges and debris, and of lifting oil from water. As a first response tool it can be deployed on site to the water’s edge for clean-up, placed on response boats to provide shoreline clean-up from the water side, and the unit can be flown into remote areas eliminating environmental damage caused by the movement of heavy equipment (www.invirodrum.com).
2. An electric truck such as TanTum that can operate in winter conditions and has a speed of up to 40 km/h. It is equipped with lights, heater and 110 Volt charging system. The truck can be made up as a designated first response unit (www.tantum.ca).
Internal resources should be maximized to provide response capability during an initial response phase.
External resources such as contractors should be viewed as support services and not initial responders. They should be able to take the time and gather appropriate supplies and equipment to do the job. They may get caught in traffic, which will reduce their capability as an initial responder.

Contingency and emergency plans Ensure that emergency response plans and procedures are site-specific. Copying plans does not produce a reliable system. Plans and procedures should be practised and tested to ensure that the plan’s activation, communication and termination procedures are workable. Be sure the plan accommodates outside agencies and emergency services. Then test your capability with real-time exercises.

Common Response Risk Factors (RRF) to consider for your emergency plan would include:

Chemical hazards: fire risk, reactivity, special hazards, health hazards.
Stored quantities: lab size, high risk, drums/totes, bulk.
Factors that will increase or decrease the response safety. They can be referred to as danger escalators and include location, housekeeping, temperature and/or pressure of product.

When you use the Quickcheck-system, the accumulated score will determine the Response Risk Factor and potential impacts to a corporation. Impacts to business will include loss of production, key personnel, income, and clientele as well as the burden of fines and the cost to recover. Impacts to people can include health issues, loss of jobs, upset to neighbours, and the community. Based on the calculated scores, officers and directors will be able to identify the severity of the potential impacts.

At this stage, personnel and responders will start to see the driving factors for response skills. Knowing the ‘what’, ‘when’, ‘why’, ‘where’ and ‘how’ of responding to a spill on a sitespecific and product-specific basis requires skill, knowledge, experience, practice and site-specific training. They need to know how to modify the conditions of spills and releases. This can be as simple as shutting off the source, directing a spill to a more manageable area or covering it over with sorbent material.

Be prepared Bill 133 is similar to a marching band; it has a strong beat and its music can be heard off in the distance. The songs may be the melodies of the future but whether you like the music or not, you are at the parade. It is time to take a realistic look inside your operations and see what aspects need changing, what impacts could create an adverse effect on your company. Don’t wait until the band is on your doorstep. Do the plans, the budget, and fill in the gaps now!

Contact Cliff Holland, Spill Management Inc., e-mail: spillman@on.aibn.com.

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