Written by Selina Lee Anderson and Paul R. Cassidy, McCarthy Tetrault
The BC Government has acknowledged that while the province’s response to the COVID-19 pandemic may have impacts on the day-to-day operations of regulated activities under the Environmental Management Act (EMA), authorization requirements remain in effect and it is expected that all reasonable measures should be taken to comply with EMA conditions. While the BC Government has not provided any guidance on what constitutes “reasonable measures”, determining what reasonable measures are will require a contextual analysis. In particular, businesses whose operations and compliance capabilities are materially challenged by the pandemic will need to engage in a risk assessment review not only to determine where the risk to the environment is the greatest from their operations, but also to provide justification in the event of non-compliance. Once a risk assessment has been completed, businesses will be in a better position to adjust the allocation of staff and other resources (if needed) for managing higher risk operational activities. Businesses with operations in BC are encouraged to maintain proper monitoring and record keeping in order to demonstrate that all reasonable measures (including appropriate mitigation measures) were taken to avoid non-compliance with EMA authorization requirements. In addition, businesses may wish to review EMA authorization requirements and develop contingency plans to ensure that their operations are maintained in compliance with permit obligations during this period of pandemic response.
If an EMA authorization holder encounters a non-compliance issue, the Ministry of Environment and Climate Change has asked that they provide notice to the Ministry by email at [email protected]. The authorization holder should identify the compliance issue(s), rationale and mitigative measures being taken. The Ministry has indicated that in addressing non-compliances, it will take into consideration the directives and guidance issued by the provincial Public Health Officer.
The Ministry has also advised that it currently has staffing resources in place to maintain all core business functions. All electronic mailboxes and normal communication channels remain open and are being monitored regularly. Authorization holders should contact the Ministry through all the usual channels. All meetings with the Ministry will be handled by phone or online.
To discuss options for managing your regulatory compliance obligations, or if you have questions about the impact of COVID-19 on your business generally, please contact your McCarthy Tétrault trusted advisor or one of the authors.
About the Authors
Selina Lee Anderson is a partner in McCarthy Tetrault’s Vancouver office and a member of the firm’s Environmental, Regulatory and Aboriginal Group, Energy & Mining Group, Retail and Consumer Markets Group, Defence Initiative and Asia Group. Recognized for her in-depth knowledge and range of experience, her practice focuses primarily in the areas of environmental law, corporate/commercial law, regulatory law, compliance, and Aboriginal issues in the energy and natural resource sectors.
Paul R. Cassidy is a partner in McCarthy Tetrault’s Business Law Group in Vancouver and co-head of our National Environmental, Regulatory & Aboriginal Group. One of the most respected practitioners in the space, his deep industry business knowledge is without comparison. International investors routinely seek his advice on the regulatory environment for doing business in Canada.