Bill 82 - An Act to Amend the Clean Environment Act

BILL 82

An Act to Amend the Clean Environment Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Clean Environment Act, chapter C-6 of the Revised Statutes, 1973, is amended by adding the following definition in alphabetical order:

“contaminant of concern” means a contaminant prescribed by regulation to be a contaminant of concern or a contaminant designated by the Minister to be a contaminant of concern under subsection 5.24(7); (polluant préoccupant)

2 Subsection 5(1) of the Act is amended in the portion preceding paragraph (a) by striking out “Subject to subsection 5.3(3)” and substituting “Subject to subsections 5.24(1) and 5.3(3)”.

3 Subsection 5.001(5) of the Act is amended

(a) in paragraph (a) by striking out “or” at the end of the paragraph;

(b) in paragraph (b) by striking out the period at the end of the paragraph and substituting a comma followed by “or”;

4 Section 5.1 of the Act is amended by adding after subsection (1) the following:

5.1(1.1) The Minister shall not issue an order under subsection (1) with respect to the action taken under an order issued under section 5.24 or the action taken under an approved voluntary remediation project.

5 The Act is amended by adding after section 5.22 the following:

Remediation orders - contaminants of concern

5.24(1) Subject to subsections (5), (6) and 5.25(7), the Minister shall not issue an order under paragraph 5(1)(g) or (h) if a contaminant of concern has been released into or on the environment or any part of the environment.

5.24(2) If a contaminant of concern has been released into or on the environment or any part of the environment, the Minister may issue an order requiring the person to whom it is directed to carry out any of the following activities in accordance with the standards and requirements prescribed by regulation:

(a) site clean-up;

(b) site rehabilitation;

(d) investigation and assessment of the effects of the release;

(e) site monitoring;

(f) submission of reports; and

(g) any other remedial action.

5.24(3) An order under subsection (2) shall only be issued to a person who is prescribed by regulation to be a responsible party or a person who meets the criteria established by regulation to be a responsible party.

5.24(4) An order under subsection (2) may be issued to one or more responsible parties and may include any term or condition prescribed by regulation.

5.24(5) The Minister may issue an order under paragraph 5(1)(g) or (h) if the Minister considers that the release of a contaminant of concern into or on the environment or any part of the environment has created an emergency situation or presents an imminent and significant threat or risk to human health or the environment.

5.24(6) The Minister may issue an order under paragraph 5(1)(g) if a contaminant of concern is being released or is suspected of being released into or on the environment or any part of the environment.

5.24(7) The Minister may designate in writing any contaminant to be a contaminant of concern and shall publish the designation in The Royal Gazette within 30 days after making the designation.

5.24(8) The Regulations Act does not apply to a designation under subsection (7).

Voluntary remediation - contaminants of concern

5.25(1) If a contaminant of concern has been released into or on the environment or any part of the environment, any person may apply to the Minister for approval of a voluntary remediation project, which may include the following activities:

(a) site clean-up;

(b) site rehabilitation;

(d) investigation and assessment of the effects of the release;

(e) site monitoring;

(f) submission of reports; and

(g) any other remedial action.

5.25(2) An application for approval of a voluntary remediation project shall be on a form provided by the Minister and shall include the information and documents prescribed by regulation.

5.25(3) An activity undertaken as part of a voluntary remediation project shall be carried out in accordance with the standards and requirements prescribed by regulation.

5.25(4) The Minister may approve a voluntary remediation project if the application complies with the requirements prescribed by regulation and the Minister considers that the proposed project will achieve remediation in accordance with the standards and requirements prescribed by regulation.

5.25(5) An approval under subsection (4) may include any term or condition prescribed by regulation, including that the project comply with the standards and requirements prescribed for the purposes of subsection (3).

5.25(6) When an approval under subsection (4) is in effect, the Minister shall not issue an order under subsection 5.24(2) with respect to the release that is the subject of the voluntary remediation project to the holder of the approval or to any other person named in the approval as a participant in the project.

5.25(7) Despite an approval under subsection (4) being in effect, the Minister may issue an order under paragraph 5(1)(g) or (h) if the Minister considers that the release of a contaminant of concern into or on the environment or any part of the environment has created an emergency situation or presents an imminent and significant threat or risk to human health or the environment.

Responsibility agreements - contaminants of concern

5.26(1) Two or more persons may enter into a responsibility agreement by which one of them assumes all responsibility under this Act for all activities related to the clean-up, rehabilitation, remediation and restoration of a site affected by the release of a contaminant of concern.

5.26(2) A responsibility agreement shall be submitted to the Minister for approval and shall be in the form and contain those matters prescribed by regulation.

5.26(3) The Minister may, in accordance with the regulations, approve a responsibility agreement.

5.26(4) Despite any provision of this Act or the regulations, if, under an approved responsibility agreement, a person is not responsible for the activities related to the clean-up, rehabilitation, remediation and restoration of a site, that person is not a responsible party for the purposes of section 5.24 with respect to the site and the release that are the subject of the agreement.

5.26(5) A responsibility agreement comes into effect

(a) when a remediation process completion certificate is issued with respect to the site and the release that are the subject of the agreement, if the agreement has been approved by the Minister, or

(b) when approved by the Minister, if a remediation process completion certificate was issued with respect to the site and the release that are the subject of the agreement before the agreement was approved.

5.26(6) If, under an approved responsibility agreement, a person assumes responsibility for the activities related to the clean-up, rehabilitation, remediation and restoration of a site affected by the release of a contaminant of concern, that person may be issued an order under subsection 5.24(2) with respect to that site despite that the person holds a certificate issued under section 5.27 with respect to the site.

Protection from liability for past contamination

5.27(1) The Minister may certify in writing that a person will not be issued an order under subsection 5.24(2) with respect to a site for a contaminant of concern that was released before the certificate was issued.

5.27(2) The Minister shall not issue an order under subsection 5.24(2) to a person who holds a certificate under this section if the release that would be the subject of the order occurred before the certificate was issued and at the site specified in the certificate.

5.27(3) The Minister may issue a certificate under this section in the following circumstances:

(a) the site is the subject of a remediation process completion certificate; or

(b) the Minister considers that issuing the certificate will improve the likelihood of the site being remediated in accordance with the standards and requirements prescribed by regulation or of being redeveloped.

5.27(4) The Minister shall only issue a certificate under this section if the Minister is satisfied on reasonable grounds that the person to whom it may be issued did not, by act or omission, cause or contribute to the release of a contaminant of concern at the site to be specified in the certificate or cause or contribute to the effects of the release of a contaminant of concern at that site.

5.27(5) The Minister may revoke a certificate issued under this section if the Minister is satisfied on reasonable grounds of the following:

(a) the person to whom the certificate was issued obtained it through misrepresentation or fraud; or

(b) the person to whom the certificate was issued caused or contributed to, by act or omission, the release of a contaminant of concern at the site specified in the certificate.

5.27(6) Section 30 applies with the necessary modifications to a certificate issued under this section.

Reporting requirements - contaminants of concern

5.28(1) Subject to subsections (3) and (4), a person who has knowledge of the release or possible release of a contaminant of concern into or on the environment or a part of the environment shall immediately report the release to the Minister in accordance with the regulations.

5.28(2) Subject to subsections (3) and (4), the following persons who have knowledge that the environment at a site is or may be contaminated by a contaminant of concern shall immediately report the contamination to the Minister in accordance with the regulations:

(a) a person who owns, leases, manages or has charge or control of the affected site; and

(b) a person who engages in environmental site assessment activities at the affected site.

5.28(3) The duty to report in subsections (1) and (2) is limited to the following:

(a) contaminants of concern specified in regulation; and

(b) the circumstances prescribed by regulation.

5.28(4) The duty to report in subsections (1) and (2) does not apply to a minor contamination event as defined by regulation.

Permanent closure of remediation files

5.29(1) After the Minister has issued a remediation process completion certificate in accordance with the regulations, the holder of the certificate may apply to the Minister in accordance with the regulations to have the remediation file to which the certificate relates permanently closed.

5.29(2) The Minister may approve the permanent closure of a remediation file in the circumstances prescribed by regulation.

5.29(3) If the Minister approves the permanent closure of a remediation file, no person shall be issued an order under subsection 5.24(2) with respect to the site and the release of the contaminant of concern that were the subject of the remediation file.

6 Subsection 5.3(3) of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

5.3(3) The Minister shall not make an order or take action respecting the release of a contaminant under subsection 5(1) or (4), 5.01(1) or 5.24(2) or section 5.1 if

7 Section 12 of the Act is amended by striking out “may issue” and substituting “may issue, amend”.

8 Subsection 14(1) of the Act is repealed and the following is substituted:

14(1) Any person whose registration, licence, permit or approval has been amended, suspended or cancelled or whose application for a registration, licence, permit or approval or amendment, transfer, reinstatement or renewal of a registration, licence, permit or approval has been refused may appeal the amendment, suspension, cancellation or refusal in the manner prescribed by regulation.

9 Section 32 of the Act is amended

(a) by adding after paragraph (b) the following:

(b.001) prescribing any contaminant to be a contaminant of concern or describing types of contaminants or combinations of contaminants that are contaminants of concern;

(b.002) prescribing terms and conditions that may be imposed on an order issued under subsection 5.24(2) or an approval issued under subsection 5.25(4);

(b.003) prescribing the form and manner in which orders issued under subsection 5.24(2) and approvals issued under subsection 5.25(4) may be issued, amended, transferred, suspended, revoked, renewed and reinstated;

(b.004) prescribing any person or class of persons to be a responsible party for the purposes of section 5.24, including prescribing any person or class of persons to not be a responsible party, and establishing criteria for designating a person or class of persons as a responsible party;

(b.005) prescribing the contents of and the manner of making an application under subsection 5.25(1);

(b.006) respecting the processes, time lines, requirements and technical standards applicable to the environmental assessment and remediation of sites affected by contaminants of concern, including the adoption by reference of processes, requirements and technical standards applicable to those matters;

(b.007) prescribing remediation target levels for sites affected by contaminants of concern, which targets may differ depending on the contaminant of concern involved and the part of the environment into which the contaminant is released;

(b.008) respecting the use of computer models and other methods for determining site-specific remediation target levels for sites affected by contaminants of concern, including imposing the use of specific computer models;

(b.009) authorizing the Minister to establish remediation target levels for sites affected by specified contaminants of concern;

(b.01) authorizing the Minister to impose remediation processes, requirements, technical standards and terms and conditions that are not prescribed by regulation on orders issued under subsection 5.24(2) and approvals issued under subsection 5.25(4);

(b.011) prescribing the circumstances under which the Minister may impose remediation processes, requirements, technical standards and terms and conditions that are not prescribed by regulation on orders issued under subsection 5.24(2) and approvals issued under subsection 5.25(4);

(b.012) respecting the process to be followed, including prescribing reports and other documents to be submitted, in order to complete a remediation process commenced under section 5.24 or 5.25;

(b.013) prescribing the criteria to be considered in determining whether a remediation process completion certificate may be issued with respect to a remediation process commenced under section 5.24 or 5.25;

(b.014) prescribing the form and manner in which remediation process completion certificates may be issued, amended, revoked, renewed and reinstated;

(b.015) authorizing the Minister to issue conditional and unconditional remediation process completion certificates, prescribing the circumstances under which the certificates may be issued on a conditional or unconditional basis and prescribing or authorizing the Minister to determine the conditions that may be imposed on the certificates;

(b.016) authorizing the Minister to re-examine sites for which remediation process completion certificates have been issued and to issue orders under subsection 5.24(2) with respect to those sites;

(b.017) prescribing the circumstances under which the Minister may re-examine sites for which remediation process completion certificates have been issued and may issue orders under subsection 5.24(2) with respect to those sites;

(b.018) prescribing the form and contents of responsibility agreements under section 5.26 and the manner in which responsibility agreements shall be submitted for approval;

(b.019) respecting the approval of responsibility agreements under section 5.26 and prescribing grounds on which the approval of responsibility agreements may be refused;

(b.02) prescribing the form and contents of and the manner of issuing a certificate under section 5.27;

(b.021) prescribing the form and contents of and the manner of making a report under section 5.28;

(b.022) specifying contaminants of concern for the purposes of section 5.28;

(b.023) prescribing circumstances for the purposes of section 5.28;

(b.024) defining “minor contamination event” for the purposes of section 5.28, which definition may differ depending on the contaminant of concern involved and the part of the environment into which the contaminant is released;

(b.025) prescribing the form and contents of and the manner of making an application under subsection 5.29(1);

(b.026) prescribing the circumstances under which the permanent closure of a remediation file may be approved;

(b.027) respecting the notification of the owners and occupiers of adjacent properties and of other affected persons of the release of a contaminant of concern;

(b.028) respecting the requirements for placing notices in and removing notices from the provincial land gazette with respect to the remediation status of sites affected by contaminants of concern;

(b.029) prescribing the qualifications required for a person to be engaged as a site professional for the remediation of sites affected by contaminants of concern and designating classes of persons who are qualified to be engaged as site professionals;

(b.03) prescribing activities that shall be performed by and reports and documents that shall be prepared by a site professional;

(b.031) establishing a remediation assurance fund for the purpose of recovering costs incurred by the Minister for remedial action taken by the Minister at sites with respect to which remediation files have been permanently closed under section 5.29;

(b.032) respecting the management of, the administration of, the auditing of, the funding of, the investment of the funds of, the distribution of funds from and the use that may be made of the remediation assurance fund;

(b) in paragraph (d) by striking out “issued” and substituting “issued, amended”;

(e.2) prescribing fees to be paid for the application for and issuance, amendment, transfer, renewal and reinstatement of a registration, licence, permit, approval or certificate;

(d) in paragraph (p) by striking out “issued” and substituting “issued, amended”.

10 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.