Emergency preparedness and response plans are critical components of an environmental management system (EMS), partly because directors and officers could be liable for any negative environmental impact or effects arising from the organization’s activities, products, or services.
For instance, a director or officer could face personal liability, including imprisonment and millions of dollars in fines under section 280(1) of the Canadian Environmental Protection Act, 1999 (CEPA) or other federal statutes. Directors and officers could also face charges under provincial laws.
A due diligence defence may be available to a director or officer facing charges under environmental statutes. To avail themselves of a due diligence defence, the director or officer must demonstrate that they exercised all reasonable diligence to prevent the violation of the statute. An effective due diligence defence involves showing, among other things, that the organization implemented systems and controls to prevent the violation and took reasonable steps to ensure that the systems and processes were operating effectively.
An effective emergency preparedness and response policy, with an accompanying emergency plan, could be an integral part of directors’ and officers’ exercise of reasonable diligence.
Preparedness is the key to an effective emergency plan. Preparedness requires entities to identify and plan to address the potential environmental emergencies that could arise. Emergencies and near misses that the organization, its competitors, or other entities have experienced will provide insight into the emergencies that the plan should address.
The crucial part of the emergency plan is the emergency response, which occurs when the organization deploys the plan by performing activities to handle an emergency. The true test of the emergency plan and the organization’s preparedness is the plan’s effectiveness in a real emergency.
Three critical questions to ask as the organization develops its policies, plans, and other procedures to ensure effective emergency preparedness and response:
- Which employees will perform the required roles and responsibilities under the emergency plan? The emergency response team should have cross-functional representation. For instance, front-line managers and others in their teams may have direct responsibility for the technical aspects of containing and otherwise responding to an environmental emergency. But the response team may also need the communications department to provide public updates and reassurances.
- What resources will employees need to carry out their roles and responsibilities? Resources include equipment to remediate contaminated soils or contain spills, and first aid kits, for example.
- How does the organization test its emergency plan? Tests may include drills and tabletop exercises. Check equipment to ensure that they are calibrated and in good working order. Drills and simulations should match realistic conditions as much as possible. Assess response times and how effectively the procedures contain or mitigate each potential emergency. Review the results for insight into the likely performance under true emergency conditions and update the emergency plan if necessary.
Meeting your duty of care:
Ensure that your emergency plans are current, effective, and include responses to the emergencies that could arise from the EMS. Effective emergency plans could form part of the due diligence defence for directors and officers who face charges because of the organization’s negative environmental impacts. Review the coverage of emergency preparedness and response in clause 8.2 of International Organization for Standardization (ISO) 14001:2015.
Log in to Operations and Marketing PolicyPro, which includes new policies, OP 5.09 – Emergency Preparedness and Response and OP 5.14 – Continual Improvement, for the policies and other tools to help you implement and sustain effective environmental management programs based on ISO and other standards.