Information Control after a Spill

Jonathan Brun


Una Jefferson: Federal and provincial legislation in Canada require that companies take steps to prepare for a spill. Post a spill, how well prepared would a company be who is compliant with all these rules, but who has done nothing beyond that.

Jonathan Kahn: I don’t think they’d be very well prepared at all.

Legislative requirements deal with physical manifestations of a spill and how to deal with those things. For example, the federal environmental emergency regulations would require an environmental emergency or an E2 plan, which would contain things like an assessment of substances on site, processes and activities on the site, understanding of the features of the surrounding area, and what the potential consequences of this spill might be. That way you assess potential emergencies that might occur and you describe what measures you would do to clean them up. It identifies training and emergency equipment and things like that.

But to fully respond to an environmental emergency, you’ve got to have a great deal more.

You have to be ready to manage an ongoing governmental investigation. You have to know how to deal with your employees and your investors and your neighbors and the media, all of whom are going to be really interested in what you’re doing about the spill.

Ultimately, the overarching plan would be to have plans in place to minimize the likelihood that an environmental emergency or a spill ends up posing some kind of true enterprise risk to accompany.

Una Jefferson: It sounds like these extra preparations have more to do with public relations and managing information about a spill than with mitigation and cleanup, is that fair to say?

Jonathan Kahn: It has to do with those things but it also has to do with making sure that employees are ready to deal with these things when they occur. It has to do with information management, and it has to do with crisis response.

Una Jefferson: Let’s talk a bit about information management. I was intrigued by one of the pointers that you offered to companies in your presentation. It said, “after a serious spill occurs it’s important for a company to pay attention to the difference between the investigation and inspection powers that the government has”. What is this difference? Why is it so important?

Jonathan Kahn: Well, typically inspection powers are very broad under most environmental legislation. Investigation powers as opposed to inspection can be more limited. Once investigations are underway, investigators can’t necessarily require the production of materials without a search warrant. In some jurisdictions they will ask the subjects of the investigation to voluntarily provide information, but they don’t have the right to take it.

However, it’s really important to note that even though they are different functions, ultimately an inspector who comes on the first day and is often very concerned with the response to the spill, asking questions like have you contained the contamination, how are you doing to clean it up, is there any public health and safety issue etc., you need to understand that their notes, their photos, their samples, will all ultimately be turned over to the investigator if there’s an investigation.

So it really is of primary importance when you’re preparing for these things and training people for these events to ensure that communications with the inspector at the initial phase of the situation be treated with a knowledge that anything that’s said is going to ultimately find its way into an investigator’s file and therefore become evidence in a potential prosecution.

It’s also really important to remember that cooperation with investigators and inspectors is required by law in almost every jurisdiction in Canada. So if you don’t cooperate, there’s a potential charge of obstruction. The other thing to remember is that that the person who shows up as your inspector may well be the same person that ends up carrying out the investigation once they decide reasonable grounds for an investigation.

Una Jefferson: Can you clarify what the government’s response and investigation powers and responsibilities are after a spill as compared to those of a company.

Jonathan Kahn: There is a little bit of a difference for the federal government and various provinces. It does vary a bit among jurisdictions, but you can pretty much expect that if some kind of environmental emergency takes place, you’re going to have government officials on the site, sometimes very quickly and sometimes for multiple jurisdictions.

For example, if you have a spill somewhere in southern Ontario that gets into a water body, you may find yourself with the ministry of the environment, conservation of parks people, with a federal department of fisheries and oceans person, and most likely the municipality and the local conservation authority. All of those people are going to have their own mandates and their own jurisdictions. Ultimately the various levels of government will sort which one will be the lead agency for the purpose of pursuing the matter, but that doesn’t always happen on day one.

Una Jefferson: What are some other steps companies typically take to control information after a spill?

Jonathan Kahn: It’s really important to know and remember that whoever is there on the first day, whatever you say to those people, whatever documents you create are ultimately going to come out and are likely going to become part of a prosecution, if there is one.

When a spill or some environmental emergency happens, people on site are kind of in shock. They’re upset and concerned. Everybody is running around doing something different and often they want to be very helpful when the government shows up because they’re really trying to solve the problem. But what can happen is inadvertently you end up giving the government incorrect information because often people are simply guessing. Conjecture really works against the interests of the company who will be a potential defendant down the road.

When the inspector asks what happened, you’re kind of searching in the recesses of your brain as to how this spill could have occurred, and someone goes, well, you know, it really must have been this. And then after you’ve done your internal investigation you realize it wasn’t that at all, it was something entirely different. But meanwhile, the inspector has in their notes that on the day of the spill, so and so admitted that the cause was this. And it becomes very difficult to suddenly correct the record because it would look like you’re changing your story.

You really got to control what people say and ensure that people are not guessing and that there is no conjecture when you’re talking to an inspector. There is absolutely nothing wrong, even though you’ve got a duty to cooperate, with saying we don’t know the answer to that question, we’re looking into it.

The other thing that’s really important in these circumstances for a company that’s just had some kind of event is to really be careful about what kind of documentation gets created. Emails start to fly and people start to talk and ultimately you may have documents like emails sent around by somebody who really doesn’t have any knowledge of the situation and who is doing no more than gossiping, sending quite damaging information around. I’ve seen situations where people without full knowledge say something like, “Oh, you know, I knew such was the problem and I knew they should have fixed this thing”, and that can be a real problem because it’s not actually correct.

So you really want to ensure that care is taken when documents get created as litigation, investigations, and prosecutions, are potentially coming down the road.

Una Jefferson: How is the response different for highly priced real estate compared to remote areas.

Jonathan Kahn: Every site is going to be different as it is going to have a different range of potential receptors in different impacted parties.

If you’re in a situation with expensive real estate, first of all, your potential civil damages could be much more significant because people may have damaged the property. But the other part of it is our regulators often are very attuned to pressure from the public. So you could assume that you’re going to be under a lot of scrutiny if you have heavily impacted neighbors and you have to deal with your neighbors in a proactive and constructive way.

Now, if the spill is more remote, you’re not going to necessarily have those impacted people, but that’s not to say you’re not going to have a potentially significant impact on the environment. So regardless of the situation, you’ve got to deal with the environmental issue.

If you’re in a more urbanized or more developed area, you’re going to have a whole suite of social impact and economic impact to third parties that you wouldn’t otherwise have.

Una Jefferson: Rules for environmental emergency response tend to differ between Canadian provinces. How you would characterize this difference.

Jonathan Kahn: Obviously there’s a lot of similarity, but there are some differences too. One is just administrative, the way various investigations units get set up. But the one I’d highlight the most is that the various provinces have subtle distinctions in requirements to notify the government in the case of a spill.

Most provinces now require notification if you have a spill, but they are all somewhat different. For example in Alberta there’s a followup requirement that many other provinces don’t have. We have many situations where if you have a spill, the company ends up not just being charged for this spill but also for a failure to report. I’ve even seen situations where they’re rather not charged for a spill but for incorrect way of notification. It’s important to understand your reporting obligations based on where you are.

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