Discussion paper: Updating the regulations and standards for response organizations and oil handling facility operators

Executive summary

As part of the Oceans Protection Plan, the Government of Canada wants to update the regulations that control how Canada prepares for, and responds to, ship-source oil spills. Transport Canada wants your feedback on changes we’re considering for some of these regulations.

Canadian law requires some vessels and oil handling facility operators to have arrangements with response organizations to respond to oil spills. Oil handling facility operators must also have procedures in place to prevent and respond to oil pollution incidents at their facilities.

The Response Organizations Regulations outline the requirements that response organizations must meet to be certified. These include the procedures, equipment, and resource capacity requirements to respond to marine oil pollution incidents up to 10,000 tonnes.

These regulations haven’t been updated since they were created in 1995 and Transport Canada has identified some areas that need to be updated in order to make sure that Canada continues to be well-positioned to respond to oil pollution.

While the regulations for oil handling facility operators were updated in 2019, we’ve since found a few gaps that have caused confusion among stakeholders and made it hard for our inspectors to enforce some parts.

Transport Canada wants to update the regulations to clarify the requirements for response organizations and oil handling facility operators.

Proposed changes to the response organizations requirements

• Ensure requirements are tailored to local conditions
  • Require response organizations to take into account local conditions, risks and logistical factors when developing their response plans.
  • Require response organizations to describe in their response plans how they consider location-specific procedures, equipment and resource needs for the sub-regions in their geographical area.
• Enhanced response time standards
  • Require response organizations to be prepared to activate their response plans more rapidly, regardless of the size or location of the spill.
• Improved preparation for spills beyond 10,000 tonnes
  • Set the expectation that response organizations exercise their mutual aid agreements at least once every 3 years. This would mean completing practice exercises with other response organizations or international organizations that have agreed to assist with spill response if a response organization needs greater capacity to manage a large spill.
• Enhanced evaluation and certification
  • Formalize and expand exercise program requirements to include measures such as unannounced exercises, and the submission of post-exercise reports.
  • Require response organizations to include Transport Canada in the development of exercises.
  • Formalize the equipment capacity formula to be used to demonstrate a response organization’s ability to respond to a spill of up to 10,000 tonnes.
• Increased community and stakeholder participation in exercises
  • Require response organizations to consider the involvement of Indigenous Peoples, coastal communities, industry groups and other jurisdictions in their exercises.

Proposed changes to the requirements for oil handling facility operators

• Classify oil handling facilities based on their maximum simultaneous transfer rate to / from vessels.
• Require oil handling facility operators to carry out their Oil Pollution Emergency Plan exercise program within a specified period.
• Require operators to maintain post-incident reports and records of training that they have provided to personnel and other individuals.
• Require operators to provide updated prevention and emergency response plans within 3 months of identifying gaps or making significant changes, and no later than 12 months after last submitting their plans.
• Require operators north of 60° latitude to meet the same minimum response equipment requirements as operators south of 60° latitude.

Transport Canada wants your views on these proposed changes and how they could impact your organization or community.

Please email your feedback on Transport Canada’s proposal to: EnvResRegs-RegsIntEnv@tc.gc.ca

Purpose

This proposal complements work that Transport Canada and the Canadian Coast Guard are undertaking to create a federally coordinated, national system to prepare for, respond to, and recover from marine pollution incidents in Canadian waters.

The feedback we receive on this discussion paper will help shape updated regulations targeted for 2024.

The changes we’re proposing for response organizations focus on:

• making sure that response plans are tailored to local conditions;
• improving response time standards and how organizations prepare for spills over 10,000 tonnes;
• improving how we evaluate and certify response organizations; and
• increasing Indigenous and stakeholder participation in preparing for, and responding to, an oil spill.

The changes we’re proposing for oil handling facility operators focus on:

• updating how oil handling facility operators are classified;
• clarifying the exercise program and reporting requirements; and
• aligning the minimum equipment capacity requirements for oil handling facility operators north of 60° latitude with those south of 60° latitude.

Background

Canada’s system for preparing for, and responding to marine oil spills requires government, industry, Indigenous Peoples and coastal communities to work together.

Prescribed (specific types of) vessels and oil handling facility operators must prevent, clean up and pay for the damage caused by oil spills from their vessels and facilities. Prescribed vessels include:

• Oil tankers of at least 150 gross tonnes;
• Vessels of at least 400 gross tonnes; and
• Groups of vessels (a vessel being pushed or towed by a tug) with a total of at least 150 tonnes.

An oil handling facility is any facility that’s used to load or unload oil to or from a prescribed vessel.

To lessen the likelihood and impacts of ship-source oil pollution, oil handling facility operators must have oil pollution prevention and emergency plans to make sure they’re prepared to prevent and respond to oil pollution incidents at their facilities. To operate in Canadian waters south of 60° latitude, oil handling facility operators and prescribed vessels must have arrangements with Transport Canada-certified response organizations for oil spill response services.

Transport Canada-certified response organizations

Response organizations are private companies that maintain the personnel, equipment, and resources needed to respond to and clean up oil spills from vessels and oil-handling facilities on behalf of a polluter. There are currently four response organizations certified by Transport Canada:

• Western Canada Marine Response Corporation
• Eastern Canada Response Corporation
• Atlantic Environmental Response Team
• Point Tupper Marine Services

These organizations are funded by membership fees and a bulk oil cargo fee, which is applied to each tonne of oil transferred at a facility.

In the event of an oil spill, the polluter pays a response organization to respond to and clean-up an oil spill. Transport Canada certifies response organizations every three years based on their ability to comply with the requirements in the Response Organizations Regulations and Response Organizations Standards.

These requirements set the level of preparedness and minimum capacity that response organizations must maintain to respond to oil spills up to 10,000 tonnes within set time standards and operating environments.

As part of the certification process, response organizations must submit and maintain a response plan that includes their procedures and resources for responding to ship-source oil pollution incidents in the areas they serve.

What we’re proposing

Updates to the requirements for response organizations

While Canada is recognized around the world as having a good system for preparing for, and responding to, oil spills, Canada’s system of regulations for response organizations was developed over 20 years ago. Since then, the way we respond to spills has not only evolved, but shipping traffic along Canada’s coasts has grown.

Currently, many response organizations voluntarily maintain response capacities beyond what Canada’s rules require. This helps make sure that they’re well-prepared to respond to oil pollution incidents.

The volume of oil moving within Canada’s waters as cargo and fuel for large vessels will continue to increase over the coming years as demand grows, and more oil means more vessels. With a rise in marine traffic, there’s a risk of more vessel interactions, which could increase the risk of oil spills. This risk has highlighted the need for Transport Canada to update Canada’s system for preparing for, and responding to, ship-source oil spills.

In 2018, we asked for feedback on how to improve the standards for response organizations. We also met with Indigenous Peoples, industry, provincial and municipal authorities, and other key groups on how to improve Canada’s ability to respond to marine oil spills.

In response to the issues raised in these talks, and to further improve Canada’s system for preparing for ship-source oil pollution, Transport Canada is proposing these changes to the regulations for response organizations:

• tailoring requirements to local conditions;
• improving response time standards;
• improving how response organizations prepare for larger oil spills (more than 10,000 tonnes);
• improving how we evaluate and certify response organizations; and
• involving Indigenous Peoples and stakeholders in our work preparing for spills.

Tailoring requirements to local conditions

Indigenous Peoples, marine industry stakeholders, local communities and governments have raised concerns that the existing regulations set a “one size fits all” model to regulate all Canadian waters, and don’t accurately reflect local conditions and risks. In response, Transport Canada is considering changing the regulations so that a response organization factors-in local conditions, risks, and logistical factors when they develop response plans.

For instance, Transport Canada is considering requiring a response organization to:

• describe how they divide their geographic area of responsibility into sub-regions;
• describe how they consider and assess location-specific response procedures, equipment, and resources for those areas; and
• show that their response equipment capacity is appropriate for all types of oil that move within its geographic area of responsibility.

These changes would add to existing requirements to describe the measures the organization would take to protect and treat environmentally sensitive areas in their operating environments.

Better response time standards

Canada’s Response Organizations Standards include time standards, which are split into four tiers based on a spill’s size and location (see Table 1). These standards set the amount of time within which a response organization must be prepared to deploy or deliver equipment to an oil spill site.

For instance, in a 150-tonne oil spill within a designated port, a response organization must be prepared to deploy equipment and have it working within six hours of being asked to respond to a spill. For a tier 3 or tier 4 spill, response organizations must be prepared to deliver the equipment and resources to the site within the time standards. Longer time standards are given to tier 3 and tier 4 spills since they are further offshore and cover larger spills, and therefore require more time to deliver the equipment.

Table 1: Current response time standards

Area of response	Tier 1 150 tonnes	Tier 2 1,000 tonnes	Tier 3 2,500 tonnes	Tier 4 10,000 tonnes
Designated port (a location where a response organization must place equipment, resources, and personnel to meet specific time standards)	6 hours (deployed)	12 hours (deployed)	n/a	n/a
Inside primary area of response (usually Canadian waters within a 50 nautical mile radius of a designated port, but this boundary can vary) or enhanced response area (area where stricter time standards apply)	n/a	n/a	18 hours (delivered)	72 hours (delivered)
Inside the geographic area of response, but outside the primary area of response and enhanced response area	n/a	n/a	18 hours + travel time (delivered)	72 hours + travel time (delivered)

Indigenous Peoples and stakeholders are concerned that these time limits are too long, and want them shortened to reduce the harm caused by an oil spill.

It’s important to note that when an oil spill occurs, the polluter is responsible for acting immediately to respond and reduce the impacts of the incident, by doing things like implementing their oil pollution emergency plan and notifying the Canadian Coast Guard. Based on the size and nature of the spill, the polluter may also have to activate their arrangement with the response organization that will respond to the spill.

To help response organizations better prepare for, and respond to, an oil pollution incident, we’re considering changing Canada’s time standards to require these organizations to activate their response plans within two hours of being contracted by the polluter.

Activating a response plan could include measures such as conducting an initial incident assessment and mobilizing personnel and equipment to be transported to the site. This new requirement wouldn’t increase the total time a response organization would have to deploy their equipment to the spill site. For example, in the case of a tier 3 spill inside of an environmental response area, the response organization would still need to be ready to deliver equipment onsite within 18 hours of being contracted by the polluter.

This new requirement would provide assurance that response organizations are prepared to activate and have their equipment and resources ready to be dispatched to the area as soon as practicable once being contracted, regardless of location or size of the spill.

Improving how we prepare for larger oil spills

To be certified, response organizations must be able to respond to a 10,000-tonne oil spill within set time standards and operating environments. Indigenous Peoples and stakeholders have raised concerns that limiting certification to 10,000 tonnes could reduce a response organization’s capacity to respond to larger incidents.

The purpose of the Response Organizations Regulations is to make sure that the right plans, people and equipment are in place and ready to be deployed in the event of any spill, regardless of size.

The 10,000 tonne mark doesn’t represent the largest oil spill that a response organization can respond to. The number is used to determine the minimum response capacity that a response organization must maintain in order to be certified.

Response organizations have mutual aid agreements in place with other response organizations and other Canadian and international organizations so they can access more resources if they need them to respond to an oil pollution incident. These agreements help to make sure that a response organization can respond to spills larger than 10,000 tonnes within their geographic area of responsibility.

To make sure that response organizations are well-prepared to implement these agreements (when needed), Transport Canada is considering establishing the expectation in technical guidance material so that response organizations exercise their mutual aid agreements with other response organizations at least once per 3-year certification cycle as part of their exercise program.

Improving how we evaluate and certify response organizations

Under the current regulations, response organizations must develop and complete an exercise program that assesses all parts of their response plans every three years. This helps Transport Canada assess the organization’s ability to implement their response plans and confirm that they can respond to oil pollution incidents up to 10,000 tonnes.

Indigenous Peoples and stakeholders have asked Transport Canada to improve and clarify how we evaluate and certify response organizations by setting:

• exercise program requirements; and
• metrics for verifying a response organization’s equipment capacity.

To this end, Transport Canada is considering adding exercise program requirements into the regulations, including the number and type of exercises that a response organization must complete within a certification cycle (every three years).

This could include new requirements that would help us assess specific parts of an organization’s response plan like:

• requiring that they involve Transport Canada when they develop goals for exercises;
• requiring that they undertake unannounced exercises so Transport Canada can assess specific parts of their readiness; and
• requiring that they submit post-exercise reports for Transport Canada’s review.

Transport Canada is also considering adding a standard formula that response organizations would need to use to calculate the total rated capacity of their equipment. This would help them show they have the resources they need to respond to an oil pollution incident up to the maximum amount for which they are certified.

To be clearer and more transparent on how response organizations are certified, Transport Canada plans to publish a new technical guidance document to accompany the updated regulations and standards once they come into force. This document would describe the information response organizations should include in their response plans and how they should show their readiness to respond to oil pollution incidents.

Increased Indigenous People and stakeholder participation in exercises

Indigenous Peoples, provincial and municipal authorities, and other organizations have told us they want to be involved in planning for, preparing for, and responding to, oil spills. Having a broader range of groups involved in this work can help us improve Canada’s response system as well as help the public understand how Canada prepares for, and responds to, oil pollution.

Transport Canada wants to require that response organizations give Indigenous and coastal communities, other jurisdictions and stakeholders, a chance to participate in exercises. Specifically, we may require that response organizations prove that they’ve made an effort to include these groups in their exercises.

The above proposed regulatory changes would complement work underway by Transport Canada and the Canadian Coast Guard. For instance, Transport Canada recently proposed the development of a coordinated national system for preparedness, response and recovery for all types of marine pollution incidents, with meaningful roles for Indigenous communities in the management of marine pollution incidents. In addition, as part of the next phase of OPP, the Canadian Coast Guard is working with Indigenous partners and coastal communities to establish Coastal Marine Response Teams (CMRTs). This initiative will collaboratively develop response capacity in Indigenous and coastal communities to respond to marine incidents and protect culturally important sites and the local marine environment from marine pollution, while also connecting these communities to the national marine response regime.

Updates to the requirements for oil handling facility operators

Since the regulatory requirements for oil handling facilities were updated in 2019, we’ve identified some gaps in the Environmental Response Regulations. While these issues haven’t caused any major compliance concerns, we’re proposing some changes to close these gaps and clarify the requirements, namely:

• updating how we classify oil handling facilities;
• clarifying the exercise program and reporting requirements; and
• aligning the minimum equipment capacity requirements for oil handling facility operators north of 60° latitude with those south of 60° lattitude.

Updating how we classify oil handling facility operators

Transport Canada wants to update how oil handling facilities are classified to better reflect modern practices. Currently, these facilities are classified based on the volume of oil they transfer when loading or unloading oil to/from a vessel (see Table 2).

Transport Canada plans to change the criteria so that it’s based on an oil handling facility’s maximum simultaneous transfer rate. We don’t plan on changing the transfer rate amounts listed in the regulations.

Clarifying exercise program and reporting requirements

Oil handling facility operators are currently required to create an exercise program to evaluate how effective their emergency plans are. However, the regulations don’t require operators to implement or complete any exercises.

Transport Canada wants to require oil handling facility operators to carry out their exercise programs within 3 years, similar to what’s required for response organizations. Transport Canada also wants to update and clarify the reporting requirements for oil handling facility operators to make sure that the department can access up-to-date information on oil pollution prevention and response measures in a more timely manner.

Currently, oil handling facility operators aren’t required to keep training records or post-incident reports after an oil spill. They’re also given up to 15 months to provide an update of their oil pollution prevention plan and emergency plans once they identify a need to revise them.

Without up-to-date plans, it’s very hard for Transport Canada inspectors to effectively review and evaluate a facility’s preparedness procedures. To address these gaps, Transport Canada is considering requiring oil handling facility operators to:

• maintain post-incident reports and training records for personnel and other individuals involved in implementing their oil pollution prevention plans and emergency plans; and
• send Transport Canada updated oil pollution prevention and emergency plans within 3 months of identifying gaps in or making changes to these plans, and no later than 12 months after last submitting these plans.

Aligning response equipment requirements for northern oil handling facility operators

Oil handling facility operators north of 60° latitude must have procedures in place to respond to a spill up to the total amount of oil that can be transferred to or from a vessel at their facilities (with a maximum of 10,000 tonnes). However, the regulations don’t state the minimum level of response equipment that they must maintain.

In contrast, oil handling facility operators south of 60° latitude must maintain a minimum amount of equipment to respond to oil spills of specific volumes, based on their level of classification. They’re not required to have similar procedures for a spill up to 10,000 tonnes since they must have an arrangement with a response organization for oil spill response services.

To align requirements for oil handling facility operators across the country, Transport Canada wants to impose the same minimum equipment preparedness requirements on northern oil handling facility operators.

This would help make sure that they can immediately respond to an oil pollution incident and would better protect the northern communities and environment where these facilities are located. Northern operators would still be required to maintain procedures to respond to a spill of the total amount of oil that could be transferred to or from a vessel at their facilities, up to 10,000 tonnes.

We want to hear from you

• What are your views on the changes Transport Canada is proposing to the requirements for response organizations and oil handling facility operators?
• How could they impact your organization or community?

Please send your comments on this discussion paper to: EnvResRegs-RegsIntEnv@tc.gc.ca.

As Transport Canada moves forward, we will consider the comments we receive and use them as we develop changes to the regulations for response organizations and oil handling facility operators.