ENVIRONMENTAL CODES OF PRACTICE: What Are They & Must You Comply with Them?

The environmental statutes and regulations are the first place a company must look to determine its environmental obligations. Statutes, or laws enacted by a legislature, typically spell out in broad strokes the basic principles of environmental protection. The regulations go a step further and flesh out the details. For example, environmental statutes bar companies from discharging contaminants into the environment but don’t specify exactly what they must do to prevent discharges. The regulations might specify the kinds of equipment that should be used to prevent discharges. But although regulations provide more specifics than statutes do, they often omit or only generally address the key operational details you need to consider to ensure compliance with the law’s requirements. Companies therefore have to look to other sources to fill in the details omitted by the regulations. Such sources can include what are called “codes of practices,” which are usually issued by the government and contain specific, practical guidance on certain environmental requirements. For example, the federal government recently released a Code of Practice for Metal Mines to help such mines comply with mining effluent regulations. Technically, codes of practice aren’t laws. But the law may specifically state that your company must comply with them. And even if this obligation isn’t expressly spelled out, failing to comply with a code of practice  can increase the company’s risk of liability under environmental laws. We’ll explain what the environmental laws say about codes of practice and the consequences of not following one. As well, at the end of this article is a map of the violations of codes of practice.

WHAT THE LAW SAYS

Not all Canadian environmental laws refer to codes of practice: 8 code of practice jurisdictions. The environmental laws in eight jurisdictions—Fed, AB, BC, NB, NT, NS, NU and SK—give the government authority to issue codes of practice or adopt codes issued by other governments or non-government bodies, such as the Canadian Council of Ministers of the Environment. In AB, NB, NT, NS, NU and SK, this power is very broad. For example, AB’s Environmental Protection and Enhancement Act simply states that the Minister of the Environment may develop codes of practice to meet the government’s environmental protection goals. Under Fed and BC law, the government may issue codes of practice only regarding designated areas or topics. For example, under the federal Canadian Environmental Protection Act, the Minister of the Environment may issue codes of practice:

• On pollution prevention;
• Specifying procedures, practices or release limits for environmental control relating to works, undertakings and activities during any phase of their development and operation;
• On the elements of the environment that may affect the life and health of people;
• To prevent and reduce marine pollution from land-based sources;
• On the prevention of, preparedness for and response to an environmental emergency and for restoring any part of the environment damaged by or during an environmental emergency; and
• On the quality of the environment.

In developing codes of practice, the government may consult with various parties, including provincial, territorial and aboriginal governments, representatives of industry, labour and municipalities and other parties interested in the environment. In fact, under federal law, the government is required to engage in such consultations. Some jurisdictions require the government to publish the codes of practice they’ve issued or adopted. For example, under federal law, the government must publish a notice, usually in the provincial or territorial Gazette, about an adopted code of practice or the code of practice itself. And in Nova Scotia, codes of practice must be included in the environmental registry created by the government. 6 no code of practice jurisdictions. The environmental laws in six jurisdictions—MB, NL, ON, PE, QC and YT—don’t specifically address codes of practice. However, this omission doesn’t mean that these jurisdictions don’t issue codes of practice or refer to codes issued by other jurisdictions. For example, the Ontario government has issued several environmental codes of practice, such as ones on timber management and environmental assessments; it also references various codes of practice issued by the federal government.

COMPLIANCE WITH CODES OF PRACTICE

Must your company comply with codes of practice under the environmental law? And what are the consequences if it doesn’t? The consequences of non-compliance with a code of practice vary by jurisdiction: Non-compliance is an environmental offence. In AB and BC, the environmental laws specifically state that the failure to comply with a code of practice is an offence in and of itself. For example, under BC’s Environmental Management Act, a person who violates a requirement that has been substituted by a director or the minister for a requirement under the regulations, including a code of practice, commits an offence and is liable on conviction to a fine of up to $1 million, imprisonment for up to six months or both. Non-compliance isn’t a violation. The environmental laws in the other six jurisdictions that empower the government to issue codes of practice are silent on whether non-compliance with a code of practice is itself an environmental offence. And obviously the consequences of non-compliance with a code of practice isn’t an issue in the six jurisdictions that don’t address codes of practice in their environmental laws. However, don’t rest easy yet if you’re in one of these 12 jurisdictions. If your company doesn’t comply with a code of practice that the government has issued to flesh out an environmental requirement, the prosecution may be able to introduce the code of practice into evidence if you’re charged with violating that requirement. The prosecution’s argument will likely be that the code establishes the reasonable steps a company should take to comply with that requirement. So, the argument goes, by failing to comply with the code of practice, the company didn’t exercise due diligence. And in jurisdictions that don’t issue their own codes of practice, the prosecution may try to use a code of practice issued by another jurisdiction to establish an “industry standard” for a particular environmental requirement and procedure. Again, failing to comply with this industry standard could be evidence of the company’s failure to exercise due diligence. Bottom line: Even though non-compliance with a code of practice is expressly made an environmental violation in only two jurisdictions, no matter where in Canada your company operates, the failure to comply with one will certainly hurt the company’s case down the line and compromise its ability to prove due diligence if it’s ever charged with an environmental requirement for which a code of practice exists. Benefits of Compliance If not complying with a code of practice can hurt the company’s due diligence defence, you might be thinking, “If my company complies with a code of practice, that’s proof that it exercised due diligence to comply with the related regulation, right?” The environmental laws that allow the government to issue codes of practice don’t specifically state that compliance with a code of practice on a specific requirement is deemed to be compliance with that requirement—but it’s a logical inference. Explanation: Remember the purpose of codes of practice: to provide practical guidance on regulatory requirements. So if, say, the environmental law bars companies from discharging contaminants into water sources in which fish live and the code of practice provides guidance on what companies should do to fulfill that requirement, how could a company that complies with the code be in violation of the requirement? In addition, even if compliance with a code of practice isn’t considered proof or evidence of compliance with a regulatory requirement, a court would almost certainly consider such compliance proof or evidence that the company exercised due diligence. Either way, as a matter of managing liability risks, there’s no downside to complying with a code of practice issued by your jurisdiction. The same argument also applies in jurisdictions where the government isn’t permitted to issue codes of practice. After all, proof that a company voluntarily complied with a code of practice from another jurisdiction on a regulatory requirement similar to one in the company’s jurisdiction will likely help the company argue that it exercised due diligence. How to Comply We’ve explained why it’s a good idea and perhaps a legal obligation to comply with environmental codes of practice. So how do you ensure that your company does so? Take these three steps: Step #1: Adopt code of practice. If your jurisdiction issues a code of practice, make sure that the company adopts the code even if it’s not technically required to do so. Adopting such a code would involve integrating it into your EHS program and ensuring that you address the code’s specific requirements in the relevant environmental procedures and training. Step #2: Follow its recommendations. You can’t simply get a copy of the code of practice from the government and file it away. You must ensure that its requirements and procedures are consistently complied with and take steps to discipline or correct infractions you discover. Step #3: Make code available to workers. Having a code of practice for a particular requirement or procedure is pointless if workers are unaware of the code’s existence. So make sure that codes of practice are easily available to workers. For example, post the code of practice in the workplace and include it in the EHS materials you give workers. In addition, you should train all workers on the code of practice so that they can comply with its requirements. Conclusion Companies benefit by complying with codes of practice by avoiding environmental violations and proving due diligence if a violation occurs anyway. On the flip side, there are clear downsides to not complying with a code of practice. First, by not complying with a code of practice, your company may not be doing all it should to protect the environment. Second, violating the code of practice could itself be an environmental offence. Last, even if violating a code isn’t an offence, non-compliance with a code will undermine the company’s argument that it exercised due diligence to comply with that regulatory requirement. So as EHS coordinator, you need to know what the law in your jurisdiction says about codes of practice, stay up to date on any codes the government has issued and ensure that your company complies with such codes of conduct. View Environmental Codes of Practice