Bill 6 - An Act to Amend the Clean Environment Act

BILL 6

An Act to Amend the Clean Environment Act

His 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 definitions in alphabetical order:

“contaminated site” means an area designated as a contaminated site under section 4.31; (lieu contaminé)

“responsible party” means a person who is declared responsible for the remediation of a contaminated site under section 4.6; (partie responsable)

“site professional” means a person who meets the requirements referred to in section 5.11; (professionnel affecté au lieu)

2 The Act is amended by adding after section 4.2 the following:

Requirement to notify of a release

4.3 In the circumstances and the manner prescribed by regulation, each of the following persons who knows or has reason to believe that a contaminant has been released into or is present in the environment shall give notice to the Minister and the persons prescribed by regulation:

(a) the person who is the owner of or who is in possession or control of or has responsibility for a contaminant found at the site;

(b) the person who has released a contaminant on the site or has contributed to its release;

(d) the person who was the owner, occupier or operator of the site at the time when a contaminant was released;

(e) any person who was the owner, occupier or operator of the site at any other time when a contaminant was present;

(f) the holder of a mortgage or other charge on the affected land;

(g) the successor, assignee, executor, administrator, receiver, receiver-manager or trustee of a person referred to in paragraphs (a) to (e);

(h) a person acting as principal or agent of a person referred to in paragraphs (a) to (g); or

(i) any site professional.

Contaminated sites – designation

4.31( 1) If the Minister determines that an area in the Province has concentrations of a contaminant that exceed the limits prescribed in a protocol, standard, policy, guideline or procedure developed or adopted by the Minister under section 4.9, the Minister may designate the area as a contaminated site in the form established by the Minister under that section.

4.31( 2) The Minister may make a designation under subsection (1) if the Minister is of the opinion that it is in the best interests of the public to do so, in circumstances when the contaminant has caused, is causing or may cause

(a) the natural, physical, chemical or biological quality or constitution of the environment to be affected, or

(b) the health of human, plant or animal life or the safety or well-being of a human to be adversely affected.

4.31( 3) The Minister shall provide written notice of a designation made under subsection (1) to

(a) each responsible party, and

(b) if the registered owner has not been declared a responsible party, each registered owner of the land referred to in the designation.

Contaminated sites – database

4.4( 1) The Minister may establish a database containing any information the Minister considers relevant, and may amend the information as required, concerning the contaminated sites referred to in section 4.31 and any area that is not a contaminated site but is impacted by the relevant release.

4.4( 2) The Minister may maintain the information referred to in subsection (1) with respect to a contaminated site whether or not the site is registered under subsection 4.41(2) or is the subject of a discharge of registration under subsection 4.41(5).

4.4( 3) The Minister may publish any portion of the database that the Minister considers appropriate but shall disclose, on request, any information contained in the database.

Contaminated sites – registration of a designation

4.41( 1) In this section “land registration office” means any registry office established under the Registry Act or any land titles office established under the Land Titles Act.

4.41( 2) The Minister may register the designation of a contaminated site referred to in subsection 4.31(1) in the land registration office having jurisdiction over any parcels affected by the designation.

4.41( 3) On registration, any subsequent owner of the parcel of land referred to in the designation shall be deemed to have received the notice referred to in subsection 4.31(3).

4.41( 4) Section 44 of the Registry Act and section 55 of the Land Titles Act do not apply to the registration of a designation referred to in subsection (2).

4.41( 5) If the Minister determines that the requirements under section 4.7 have been met, the Minister shall, within 30 days of the determination, register a certificate established by the Minister under section 4.9 in the appropriate land registry office, and, on registration, the appropriate registrar of that office shall discharge the registration of the designation in respect of which the certificate was provided.

Contaminated sites – potentially responsible persons

4.5( 1) Subject to subsections (2) and (3) and section 4.8, the following persons may be held responsible for remediation of a contaminated site:

(a) the person who is the owner of or who is in possession or control of or has responsibility for a contaminant found at the site;

(b) the person who has released a contaminant at the site or has contributed to its release;

(d) the person who was the owner, occupier or operator of a site at the time when the contaminant was released;

(e) any person who, at any other time, was the owner, occupier or operator of the site, knowing that the site was contaminated;

(f) the holder of a mortgage or other charge on the affected land;

(g) the successor, assignee, executor, administrator, receiver, receiver-manager or trustee of a person referred to in paragraphs (a) to (e); or

(h) a person acting as the principal or agent of a person referred to in paragraphs (a) to (g).

4.5( 2) A person referred to in paragraph (1)(g) or (h) is not personally liable for the remediation of the site unless

(a) the person directly or indirectly through their employee or by exercising control over or imposing requirements on another person, contaminated the site, and

(b) in so doing, failed to exercise due diligence with respect to the site or its contaminants.

4.5( 3) The liability of persons referred to in paragraph (1)(g) or (h) who are not personally responsible for the remediation of the contaminated site is limited to the property under their administration or management under the terms of the trust or appointment.

Contaminated sites – declaration of responsible parties

4.6( 1) The Minister may, having considered all relevant factors, including those prescribed by regulation, declare one or more of the persons referred to in section 4.5 as the party or parties responsible for remediation of the contaminated site.

4.6( 2) The Minister shall send a notice to each person declared to be a responsible party.

Contaminated sites – remediation measures

4.7( 1) Responsible parties are jointly and severally liable to remediate the contaminated site and any other area that the Minister considers to be impacted by the release and to take any other actions that the Minister considers appropriate, which may include the following:

(a) an investigation of site contamination;

(b) site assessment;

(d) presentation of reports;

(e) site rehabilitation; or

(f) any other assessment or remedial action required by the Minister or prescribed by regulation.

4.7( 2) The remediation and the other measures referred to in subsection (1) shall be completed within the time and in the manner prescribed by the protocols, standards, policies, guidelines or procedures developed or adopted by the Minister under section 4.9.

Contaminated sites – agreements respecting limitation of liability

4.8 If a person who would not normally be responsible for the remediation of a contaminated site under section 4.5 proposes to become the owner or occupier of the site or to take any other action that may render the person responsible, the Minister may, subject to the conditions as the Minister considers appropriate, enter into an agreement with the person limiting the person’s liability for remediation that may reasonably be related to any release that occurred before the person became the owner or occupier of the site or took the action in question.

Contaminated sites – ministerial protocols, standards, policies, guidelines and procedures

4.9( 1) The Minister may develop or adopt protocols, standards, policies, guidelines or procedures with respect to contaminated sites, which may address

(a) criteria for designation and classification of contaminated sites,

(b) the time within which and the manner in which remediation or management of contaminated sites shall be done,

(c) the establishment of programs respecting the remediation or management of contaminated sites or to prevent site contamination,

(d) risk-based assessment, remediation and management of contaminated sites,

(e) reports, notices and certificates to be prepared, including their form, content and method of submission,

(f) forms to be used, and

(g) any other matter that the Minister considers appropriate.

4.9( 2) The protocols, standards, policies, guidelines or procedures developed or adopted by the Minister may establish categories of contaminated sites and the standards and obligations that apply to each, which may vary for different categories, including whether or not the relevant release occurred before or after the commencement of this subsection.

4.9( 3) The Regulations Act does not apply to a protocol, standard, policy, guideline or procedure developed or adopted by the Minister.

4.9( 4) If there is a conflict between this Act or the regulations and any protocol, standard, policy, guideline or procedure developed or adopted by the Minister, this Act and the regulations prevail.

4.9( 5) The Minister shall make the protocols, standards, policies, guidelines and procedures developed or adopted by the Minister available to the public.

3 The Act is amended by adding after section 5.1 the following:

Site professionals

5.11( 1) No person shall represent themselves as a site professional unless they meet the requirements prescribed by regulation.

5.11( 2) Unless they meet the requirements prescribed by regulation or have been exempted in writing by an inspector, no person shall

(a) undertake or supervise the assessment or remediation of

( i) a contaminated site, or

( ii) a release of any contaminant not otherwise approved under this Act or the regulations, or

(b) assume responsibility for the quality of the work referred to in paragraph (a).

4 The Act is amended by adding after section 5.2 the following:

Lien on the land

5.201( 1) All costs referred to in subsection 5.2(1), including all reasonable costs and charges resulting from the filing, entering and recording of a certificate under subsection 5.2(6.1), shall, until they are paid and despite subsection 72(2) of the Workers’ Compensation Act, form a lien on the land in respect of which the work is carried out in priority to every claim, privilege, lien or other encumbrance, whenever created, subject only to taxes levied under the Real Property Tax Act.

5.201( 2) The lien under subsection (1)

(a) attaches when the work referred to in section 5.01 or 5.1 or subsection 5.21(2) begins and does not require registering or filing any document or giving notice to any person to create or preserve it, including the written demand under subsection 5.2(1), and

(b) is not defeated by a change in ownership affecting the land.

5.201( 3) A mortgagee, judgment creditor or other person having a claim, lien, privilege or other encumbrance on or against the land to which a lien under subsection (1) is attached

(a) may pay the amount of the lien,

(b) may add the amount to the person’s mortgage, judgment or other security, and

5 The Act is amended by adding after section 5.3 the following:

Application of sections 4.3 to 4.9

5.31 Sections 4.3 to 4.9 and the regulations, if any, made under paragraphs 32(r.01) or (r.02) apply to contaminated sites or areas that have been subject to the relevant release whether or not

(a) the release occurred before or after the commencement of this section,

(b) an order has previously been issued in relation to the release or the contaminated site,

(c) civil, administrative or criminal proceedings concerning the release or the contaminated site have been or may be commenced under this or any other Act,

(d) the release was made in accordance with this or any other Act,

(e) the release was not prohibited by this Act, or

(f) the contaminant originated from a source other than the contaminated site.

6 Section 14 of the Act is amended by adding after subsection (3) the following:

14( 4) Any person declared a responsible party under section 4.6 may appeal the decision in the manner prescribed by regulation.

7 Section 22.1 of the Act is amended

(a) in subsection (1)

( i) in paragraph (a) by striking out “manufacture” and substituting “manufacture, importation”;

( ii) in paragraph (b) by striking out “manufacture” and substituting “manufacture, importation”;

(b) by adding after subsection (5) the following:

22.1( 5.1) For the purposes of subsection (5), the stewardship board shall establish by-laws in accordance with the regulations.

8 Section 32 of the Act is amended

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

(r.01) prescribing, for the purposes of section 4.3,

( i) the circumstances under which a notice shall be given of the release or presence of a contaminant, and

( ii) the persons to whom and the manner in which the notice is to be given;

(r.02) respecting contaminated sites, including

( i) any matter that may be the subject of a protocol, standard, policy, guideline or procedure developed or adopted by the Minister under section 4.9,

( ii) the criteria for assessment, designation, remediation and rehabilitation of contaminated sites,

( iii) establishing categories of contaminated sites and the standards and obligations that apply to each, which may vary for different categories, including whether or not the relevant release occurred before or after the commencement of this subparagraph;

( iv) for the purposes of subsection 4.6(1), the criteria for declaration of responsible parties,

( v) the obligations of any person in relation to a contaminated site or a potentially contaminated site, including responsible parties, vendors, purchasers, owners, occupiers, operators and site professionals,

( vi) the obligation to prepare environmental reports on site assessment, risk assessment, closure of sites, monitoring and any other matter related to the contaminated site, including their content and method of transmission,

( vii) the continuing obligations of responsible parties after meeting the requirements imposed under section 4.7,

( viii) the assessment and remedial measures referred to in paragraph 4.7(1)(f),

( ix) the agreements referred to in section 4.8,

( x) the assessment of contaminated sites and development of plans for remedial action respecting contaminated sites,

( xi) generic or risk-based remediation criteria, including scientific models for predicting the effects of contaminants on human health or the environment,

( xii) the development of standards and procedures for sampling, analysis, testing, measurement and monitoring of contaminated sites,

( xiii) the establishment of a database referred to in section 4.4 and publication of any portion of the database,

( xiv) the conditions that shall be met by responsible parties in order not to be liable to prosecution for an offence or to an administrative penalty, and

( xv) the delegation of powers to the Minister or inspectors;

(r.03) establishing requirements for site professionals, including insurance requirements;

(b) by adding after subparagraph (r.10)(v) the following:

( v.1) the establishment of by-laws referred to in subsection 22.1(5.1) and the delegation to the stewardship board of any matter referred to in subparagraph (v),

(d) by adding after paragraph (r.16) the following:

(r.161) prescribing the terms and conditions under which a person or class of persons may be exempted from obtaining a registration or licence referred to in paragraph (r.14) or from the application of any other provision respecting the manufacture, importation, storage, collection, transportation, recycling, disposal or other handling of a designated material;

(e) by repealing subparagraph (r.201)(iii) and substituting the following:

( iii) interest and penalties, the manner in which they are fixed, and their application in relation to a failure to pay or remit a fee;

(f) by repealing paragraph (r.24) and substituting the following:

(r.24) respecting the development, implementation, amendment, imposition, oversight, assessment or audit of designated material stewardship plans;

(g) by adding after paragraph (r.24) the following:

(r.241) respecting the designation of agents by the holders of registrations or licences referred to in paragraph (r.14) and the delegation to those agents of all or part of the responsibility for management of designated materials;

(h) by repealing paragraph (r.25) and substituting the following:

(r.25) respecting the submission to and approval by a stewardship board of designated material stewardship plans, including regulations prescribing the criteria that the stewardship board shall take into consideration when approving the plans;

(i) in paragraph (r.26) by striking out “product stewardship plan” and substituting “designated material stewardship plan”;

(j) by adding after paragraph (u.2) the following:

(u.21) prescribing offences in relation to which administrative penalties may be payable and the calculation of the amounts of those penalties, which may vary according to whether or not the offence in relation to which the penalty is payable is a first, second or third offence and according to the degree of seriousness of the first, second or third offence;

(u.22) establishing categories of offences by the degree of seriousness for the purposes of paragraph (u.21), including establishing guidelines in relation to the degree of seriousness, or delegating to the Director who imposes an administrative penalty the discretion to determine the degree of seriousness of each offence;

(u.23) prescribing information to be included in a notice of administrative penalty;

(u.24) prescribing procedures to be followed in imposing and paying an administrative penalty and all other matters in relation to those penalties;

(k) by adding after paragraph (v.2) the following:

(v.3) providing for any transitional matters that the Lieutenant-Governor in Council considers necessary or advisable in connection with the implementation of this Act or the regulations;

9 The Act is amended by adding after section 32 the following:

Incorporation by reference

32.1( 1) A regulation authorized under this Act may incorporate by reference, in whole or in part, any protocols, standards, policies, guidelines or procedures, including those referred to in section 4.9, as they are amended from time to time before or after the making of the regulation or as they read at a fixed time, and may require compliance with that standard, policy, guideline, protocol or procedure.

32.1( 2) When a protocol, standard, policy, guideline or procedure referred to in subsection (1) is incorporated by reference in a regulation, the Minister shall make it available to the public.

Administrative penalties

32.2( 1) The Minister shall appoint a Director for the purposes of this section.

32.2( 2) If the Director is satisfied that a person has contravened or failed to comply with a prescribed provision of this Act or the regulations, the Director may impose an administrative penalty on the person by issuing a notice of administrative penalty.

32.2( 3) The amount of the administrative penalty shall be calculated in accordance with the regulations for each day or part of a day during which the offence continues, but shall not exceed  $10,000.

32.2( 4) A notice of administrative penalty shall include the following information:

(a) the name of the person required to pay the administrative penalty;

(b) the provision contravened or with which there was a failure to comply;

(d) the amount of the administrative penalty and the consequences for failing to respond to the notice;

(e) the manner in which and the time within which to pay the administrative penalty;

(f) an administrative penalty admission of responsibility form, which shall include the information referred to in paragraphs (a) to (e); and

(g) any other information prescribed by regulation.

32.2( 5) A notice of administrative penalty shall not be issued more than three years after the date of the contravention or failure to comply.

32.2( 6) The administrative penalty admission of responsibility form referred to in paragraph (4)(f), once completed and signed by the recipient of the notice of administrative penalty and witnessed, shall represent an acknowledgement of the person’s contravention or failure to comply.

32.2( 7) The recipient of the notice of administrative penalty who pays the administrative penalty shall be deemed to have contravened the provision of this Act or the regulations in respect of which the payment was made and shall not be charged with an offence in respect of the same incident that gave rise to the administrative penalty.

32.2( 8) If the person does not pay the full amount of the administrative penalty within 30 days after receiving the notice of administrative penalty, the person may be charged with an offence in respect of the same incident that gave rise to the administrative penalty.

32.2( 9) Subject to subsection (8), a person charged with an offence under this Act or the regulations is not liable to an administrative penalty in respect of the same incident that gave rise to the charge.

32.2( 10) Completed and signed administrative penalty admission of responsibility forms may be maintained in a registry and made available to the public.

32.2( 11) If a person pays an administrative penalty in accordance with this section and is, in relation to a different set of facts, later charged with an offence under this Act or the regulations, the completed and signed administrative penalty admission of responsibility form shall, without limiting its admissibility, be admissible in court in relation to sentencing.

32.2( 12) A person may not appeal the amount of an administrative penalty or any other matter in relation to it.

32.2( 13) The Director shall not impose more than three administrative penalties on the same person in relation to offences that, in the Director’s opinion, were the same as or substantially similar to the alleged offence.

10 Section 33 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “approval” and substituting “agreement, approval”;

(b) in subsection (4)

( i) in paragraph (a) by striking out “approval” and substituting “approval or has not entered into an agreement”;

( ii) in paragraph (c) by striking out “approval” and substituting “agreement, approval”.

Commencement

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