The probability of an environmental disaster is low, but current events in Canada have demonstrated how the consequences may be catastrophic. How a company manages the event and its aftermath may determine the fate of the company, its parent and affiliates, and the risk exposure of its officers and directors. Topics: What is the corporation’s legal obligation in the event of an environmental disaster? What are the legal obligations of the corporation’s officers and directors? How does one asses, prioritize, and implement health, safety and environmental remediation requirements? How to deal with the regulators, investigators and the media? Can you count on your insurance to fund your disaster response? How can the company protect its brand in the aftermath? Presenters: Mark Madras, Partner, Gowlings (Toronto Office) Sherry Eaton, Golder Associates Ltd. Carl Spensieri, XL Insurance Don Huff, Environmental Communications

1. Environmental Law for Business:
Disaster Management
Toronto, April 24, 2014

2. 2
With You Today
Mark Madras
Gowlings
Sherry Eaton
Golder Associates
Don Huff
Environmental Communication
Options
John Sarkis
XL Insurance

3. Disaster Management –
The Legal Perspective
Mark L. Madras
Certified Specialist (Environmental Law)
Toronto, April 24, 2014

4. 4
What to Do When it Happens
• Look to your plan
• Duty to act
• Duty to notify
• Record and report
• Incident management
• Closure

5. 5
Requirement to Have a Plan
• A matter of due diligence
• May be prescribed (examples: CEPA, TDGR, Canada
Shipping Act)
• Assess the risks
• Know the legal obligations
• Response scenarios
• Personnel, contractors and equipment
• Train
• Test
• Update
• Funding

6. 6
Notifications
• Prescribed duty to notify:
- to what agencies
- at what contact numbers
- thresholds
- by whom
- what content
• Civil law duty to notify (duty to warn)
- assess who is at risk
- triggers, recommended action, messenger and message
• Internal notifications
• Notice to insurer

7. 7
Incident Management
• Person in charge
• Managing the contractors
• Who is engaged
• Mandate
• Terms and conditions
• Oversight
• Payment
• Dispute resolution
• Liaison with regulators
• Liaison with insurers
• Liaison with media
• Liaison with supply chain

8. 8
Record and Report
• Protecting the organization
• May be prescribed during the event
• May be prescribed post-incident
• Evidence of diligence
• Evidence of compliance
• Evidence of expenditures for insurance
• Evidence of expenditures for contractual purposes
• Who to maintain the record
• What to be recorded
• How to be recorded (log, video, memoranda)

9. 9
Closure
• Indentify post-incident issues to be managed
• Claims
• Prosecution
• Orders
• Insurance
• Report requirements: internal, regulators
• Media
• Supply chain
• Emergency response plan update
• Root cause and response assessment

10. 10
Incident and Response Investigation
• Determining the root cause
• Assessing the sufficiency and compliance of the
response
• Operational assessment vs legal: Is it privileged and
confidential?

11. 11
Risks if it Goes Wrong
• Prosecution for non-compliance: for incident, for
response
• Orders: for compliance, environmental restoration or
risk management
• Potentially responsible parties: the operating
company, persons, officers and directors,
controlling corporations
• Reputational

12. 12
Conclusions
• Know the risks of the enterprise
• Assess the risks to the enterprise
• Plan the response
• Protect the business and its stakeholders

13. montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • moscow • london
Thank You
Mark L. Madras
Certified Specialist (Environmental Law)
Tel: (416) 862-4296
Email: mark.madras@gowlings.com

14. Environmental Disaster Management:
Response and Remediation
Presented by:
Sherry Eaton, M.Sc., P.Geo., PMP
Golder Associates Ltd.

15. Could it Happen to Me?
 Mississauga train derailment (1979)
 Hagersville tire fire (1990)
 Plastimet fire, Hamilton (1997)
 Sunrise Propane explosion, Downsview (2008)
 Lac-Mégantic train derailment, Quebec (2013)
 Others
•15

16. Prevention, Planning and Preparedness
 Identify risks
 Use of best management practices
 Training (prevention and response)
 Infrastructure and equipment maintenance
 Prevention and contingency planning
 Response exercises
•16

17. Having the Right Team
 Internal
 Contractors
 Consultants
 Insurers
 Government
 Public
•17

18. Know Your “Site”
Location
on-site/off-site
accessibility
Receptors
site workers, tenants
public, neighbours
environment
Pathways
infrastructure, drainage, site plans
•18

19. Know Your Products/Chemicals
 Chemical characteristics
• solubility
• volatility
• flammability
• toxicity
 Behavior and migration
in the environment
•19

20. Initial Response
 Rapid assessment of the situation
• Who is at risk?
• What chemicals are involved?
• What are the potential migration pathways?
• What is the magnitude of the current and potential impacts?
 Activate plan and notification requirements
•20

21. Initial Response
 Determine:
• what immediate action is required (contain and recover)
• what support and equipment are required
• who is in charge (incident commander)
• what are the impact on site operations
 Mobilize resources
 Address H&S and site security
•21

22. Delegation of Responsibilities
 Incident Commander (overall responsibility/decision maker)
 Operations Manager (implementation)
 Logistics (provision of resources)
 H&S Officer
 Finance (cost tracking)
 Administrative
 Internal and external
communications
•22

23. During the Response
Contain and Control:
 control and remove source
 prevent further migration
 initiate recovery, treatment and removal of impacted media
 environmental monitoring
•23

24. Remediation and Cleanup
 Determine:
• cleanup objectives
• degree and extent of impact
• remedial approach
 Develop plans and schedules
 Consult with regulators and stakeholders
 Consider options, alternatives and costs
•24

25. Key Learnings
 Prevention is cheaper than response
 Emergency response and remediation are extremely costly
 Communication is critical
 Emergency response is
stressful
 Learn from the experience
•25

26. Questions & Discussion
Contact Info:
Sherry Eaton, M.Sc., P.Geo., PMP
Associate
Golder Associates Ltd.
100 Scotia Court,
Whitby, Ontario
Tel: 905-723-2727
E-mail: seaton@golder.com
Website: www.golder.com

27. © 2013, XL Group plc companies. All rights reserved.
Environmental Insurance
and Disaster Management
John Sarkis, P. Eng.
Senior Environmental Underwriter, XL Insurance Company Ltd . MAKE YOUR WORLD GO
•27

28. © 2013, XL Group plc companies. All rights reserved.
Environmental Coverage Summary
•28
Fixed-Site Coverage Contractor’s Coverage
• Location specific coverage
• Responds to Pollution Events both
on and off-site
• Remediation Expense (1st
and 3rd
party)
• 3rd
Party Bodily Injury and Property
Damage
•Creation or worsening of Pollution
Events during contracting activities
•Remediation Expense
•3rd
Party Bodily Injury and Property
Damage

29. © 2013, XL Group plc companies. All rights reserved.
Terminology
•29
Disaster Response Expense / Crisis Management
Expense / Public Relations Expense
- Terms are interchangeable and vary by Insurance Carrier
- Cost associated with maintaining/restoring a company’s
public image related to pollution event
Public Relations Expert/Disaster Response
Advisor
- Terms are interchangeable and vary by Insurance Carrier
- Firm or person(s) charged with restoring a company’s
public image

30. © 2013, XL Group plc companies. All rights reserved.
Covered Expenses
•30
•Securing of a Scene/Area
•Medical/Funeral
•Counseling
•Travel
•Temporary Living
•Printing and Mailing
•Call Centre Support

31. © 2013, XL Group plc companies. All rights reserved.
How is Coverage Triggered?
•31
• Pollution event requiring Remediation
Expense (clean-up), or that causes Bodily
Injury or Property Damage;
• Draws Media attention; and
• Requires a Public Relations Expert (or
similar advisor).
Triggers above vary (more or less) by Insurance
Carrier

32. © 2013, XL Group plc companies. All rights reserved.
How is a Claim Filed?
•32
• Emergency Response Phone Numbers and
24/7 availability from your Insurance Carrier
• Disaster Response Coverage is subject to the
Reporting Conditions of the Policy
• It is in the company’s best interest to involve
their Insurance Carrier as soon as possible
• It is in the company’s best interest to provide
Insurance contact information in all
emergency response plans particularly at the
facility level (and Health and Safety Plans)

33. © 2013, XL Group plc companies. All rights reserved.
Information and Cost
•33
• Insurance Carrier will need to understand
a Company’s Emergency Response
Procedures
• Insurance Carrier may also ask for record
of public complaints
• Various Insurance Products with Disaster
Response Coverage built-in, others need
to be added to coverage
• Limits of Coverage may or may not erode
the aggregate Limits of Liability

34. © 2013, XL Group plc companies. All rights reserved.
Questions?
•34

35. Crisis Communications
Don Huff
President
Environmental Communication Options
April 24, 2014

36. • cri·sis noun krī-s sˈ ə
Crisis communications

37. 1. Preparation
2. Response
3. Moving forward
Three stages

38. Resist the urge

39. • Having an effective crisis communication plan
puts you “more” in control and provides the
skills and confidence to face what may be a
very volatile and confusing situation.
Preparation: the rationale

40. • Be a Boy Scout: be prepared
• Create a crisis communications
response team
• Develop a plan
Being prepared: the calm before the storm

41. • Convene an internal brainstorming session
• Identify audiences (internal and external)
• Finalize plan and get organized
– Ensure plan is understood in place for immediate
action (contact lists, documents, etc.)
Preparation: necessary steps

42. • Media monitoring
– Continuously monitor your “reputation” – be alert to traditional and
social media
– Identify issues; know reporters; listen: catch things early
• Media training
– For spokespeople
• Build skills prior to crisis
• Training will occur again during crisis
– Be ready for difficult questions
Preparation: necessary steps

43. • Don’t panic
– Gather facts
– Assess the situation
– Stick to the plan
The response

44. • Don't jump the gun and create a crisis where
one doesn’t exist
Not everything will “stick”
• BUT: hiding something is often punished
painfully by the media

45. • Decide immediately whether to be proactive or
reactive
– Choosing no action is still a choice
• Decide what level of your organization needs to
respond
• Ensure that internal and external
communications are controlled and consistent
with your plan
How do we respond?

46. • Media conference / Media availability
• Media release
• Personal phone calls (media and influencers)
• Briefing for reporters (daily/hourly)
• Social media
Response options include:

47. • Give the media as much information as possible
– they'll get the information (perhaps inaccurately)
from other sources
• Honour your own deadlines
• Consistent messaging from all spokespeople
• The media is not your friend, but they are not the
enemy
Dealing with media

48. • Consider the medium
– Dictates amount of information and speed required
• Print need more info than radio/TV;
• Speed of response is becoming more important with
emergence of online news—especially social media
• Keep a media log with names, numbers and
promises related to deadlines or interview times
• Don’t poke the bear. Nothing is more likely to make the
situation worse than an irritated reporter with no
information, a deadline and an impatient editor.
Dealing with media

49. • Don’t forget your employees
– Consistent messaging
– Keeping employees motivated and onside
– Employees can be brand champions
• Sharing information with members of the
organization reduces the chances of inconsistent
or contradictory information
– Provide information to people in your organization
before the media (or at least coincident)
Internal communications

50. • Spokesperson should be forthright in dealing with
media questions
• BUT: there are exceptions—especially in the early
stages of a crisis—when some information is
preliminary and likely to change
For instance:
– The cost or value of damage
– Status of insurance coverage
– Allocation of blame
• Avoid anything “off the record”
Exercise honesty…with caution

51. • “No comment” translates into you looking
evasive, uncooperative and trying to hide
something all rolled into one
• More appropriate responses include:
– “I have just learned about the situation and I am trying to gather
the information.”
– “All our efforts are directed at bringing the situation under control,
so I'm not going to speculate on the cause of the incident.”
– “We're preparing a statement on that now. Can I call or email it to
you ASAP?”
“No comment” says plenty

52. • The situation is always evolving
– Information, news and perspective can and will
change throughout the response period
• Consider (carefully) what is written—even in
your internal emails
– Ask yourself: would you like to see these words
beside your picture on the front page of the Globe
or the Star?
Remember

53. It will end

54. • Declare an end to the crisis.
• Follow up. Keep the media informed of any updates in the
situation.
• Perform an act of goodwill. Do this during or immediately
after a crisis when appropriate and possible. Prepare to be
judged (apply common sense).
• Learn from the pain. Debrief and analyze the outcome and
the media coverage, both positive and negative.
• Strengthen your crisis communication plan by integrating
what you’ve learned.
Moving forward

55. Getting through a crisis:
1. Be prepared
2. Proper team and plan
– Properly trained; understand roles
1. Take a deep breath
– Don’t be stampeded as you enter the fray
1. Respect and cooperate with media
2. Follow through
3. Internalize lessons learned
You can do it

56. Help is at the end of the phone

57. Don Huff
huffd@ecostrategy.ca
416-972-7401
ecostrategy.ca
Thank you
Toronto Address
19 Yorkville Avenue
Toronto, Ontario
M4W 1L1
Sudbury Address
31 Larch Street, 3rd Floor
Sudbury, Ontario
P3E 1B7

58. montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • moscow • london
Thank You