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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
An Act to Amend the Clean Environment Act
 
Legislature :
54
Session :
4
Bill No. :
45
Member :
Hon. Jardine
First Reading :
2002-5-10
Second Reading :
2002-5-14
Committee of the Whole :
2002-5-29
Amended :
Third Reading :
2002-5-30
Royal Assent :
2002-6-7
        
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Text of Bill :
                                                                  

   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

   (a)       in the definition “contaminant”

      (i) by repealing paragraph (d) and substituting the following:

   (d)       that is designated by the Minister as a contaminant under section 4.2,

      (ii)       by striking out the portion following paragraph (d) and substituting “and includes a pesticide or waste;”;

   (b)       by adding the following definitions in alphabetical order:

   “costs” includes expenses, disbursements, losses, damages and charges;
   
   “order” means an order issued under this Act or the regulations, but does not include an order issued under section 4.2;

   (c)       by repealing the definition “release” and substituting the following:

   “release”, when used with reference to a contaminant or other matter regardless of form, includes the discharging, emitting, leaving, depositing or throwing of the contaminant
or other matter and the doing of or the omission to do any other activity in respect of the contaminant or other matter, with the direct or indirect result that the contaminant or
other matter enters the environment or a part of the environment, whether or not the contaminant or other matter previously existed in the environment or part of the environment;

2                   The Act is amended by adding after section 4.1 the following:

4.2(1)      The Minister may, by order,

   (a)               designate as a contaminant a solid, liquid, gas, micro-organism, odour, heat, cold, sound, vibration, radiation or combination of any of them, and
   
   (b)       establish the maximum amounts, levels or concentrations of a contaminant or a class of contaminant that may be released, either alone or in combination with another
   contaminant or any other substance, into the environment, which maximum amounts, levels or concentrations may vary according to the manner in which the contaminant is
   released, according to the area in which it is released or is found or according to any other factor.

4.2(2)      The Regulations Act does not apply to an order made under this section.

3                   Section 5 of the Act is repealed and the following is substituted:

5(1)            Subject to subsection 5.3(3), the Minister may, in the circumstances described in subsection (2), issue an order requiring the person to whom it is directed to do, in
accordance with the directions set out in the order, one or more of the following:

   (a)       to control or reduce the rate of release of any contaminant into or upon the environment or any part of the environment;
   
   (b)       to eliminate the release of any contaminant into or upon the environment or any part of the environment

      (i)       permanently,
      
      (ii)       for a specified period, or
      
      (iii)       in the circumstances set out in the order;

   (c)         to alter the manner of release of any contaminant into or upon the environment or any part of the environment;
   
   (d)       to alter the procedures to be followed in the control, reduction or elimination of the release of any contaminant into or upon the environment or any part of the
   environment;

   (e)         to install, replace or alter any equipment or thing designed to control, reduce or eliminate the release of any contaminant into or upon the environment or any part of the
   environment;
   
   (f)         to install, replace or alter a wastewater treatment facility or waterworks in order to control, reduce, eliminate or remedy the release of a contaminant into or upon the
   environment or any part of the environment;
   
   (g)       to conduct any investigation, make any tests and prepare and submit to the Minister any reports required by the Minister; and
   
   (h)       if a contaminant has been released into or upon the environment or any part of the environment, to carry out clean-up, site rehabilitation, restoration of land, premises or
   personal property or other remedial action.

5(2)            The Minister may issue an order in relation to a contaminant if the Minister is of the opinion that

   (a)       the contaminant has been, is being or may be released into the environment at a rate exceeding the maximum rate established by this Act or the regulations for the release
   of that contaminant,
   
   (b)       the contaminant has been, is being or may be released into the environment in a manner prohibited under this Act or the regulations,
   
   
   (c)         the release of the contaminant is prohibited under this Act or the regulations, or
   
   (d)       it is in the best interests of the public to make the order, in circumstances where the release of the contaminant has caused, is causing or may cause

      (i) the natural, physical, chemical or biological quality or constitution of the environment to be affected,
      
      (ii)       the health of human, plant or animal life or the safety or comfort of a human to be adversely affected,
      
      (iii)       property or plant or animal life to be damaged or rendered unfit for use by persons, or
      
      (iv)       visibility, the normal conduct of transport or business or the normal enjoyment of life or use or enjoyment of property to be interfered with.

5(3)            An order under subsection (1) may be directed to any one or any combination of the following:

   (a)       the owner of the contaminant;
   
   (b)       the person having control of the contaminant;
   
   (c)         the person who, in the opinion of the Minister, by the person’s act or omission caused the release, whether directly or indirectly and whether or not the act or omission
   constituted an offence under this Act or the regulations;
   
   (d)       a person who owns, leases, manages or has charge or control of land, premises or personal property that has been, is being or may reasonably be expected to be
   adversely affected by the release;
   
   (e)         the authority having jurisdiction over the land or premises where the release occurred, is occurring or may occur; or
   
   (f)         any person whose assistance is, in the opinion of the Minister, necessary in order to deal effectively with the release or ameliorate the situation.

5(4)            Subject to subsection 5.3(3), if, in the opinion of the Minister, a person has violated or has failed to comply with a provision of this Act or the regulations, the Minister
may issue an order directing the person to comply with the provision in accordance with the directions set out in the order or to carry out such other action as the Minister
considers necessary, including any action that the Minister may order to be done under subsection (1).

5(5)                      Notwithstanding the terms and conditions of any approval which may have been issued with respect to a source, wastewater works or waterworks, the Minister may,
in the circumstances described in subsection (6), issue an order requiring the person to whom it is directed to do, in accordance with the directions set out in the order, one or
more of the following:

   (a)       to conduct an investigation and make any tests of the construction, modification or operation of the source, wastewater works or waterworks and prepare and submit to
   the Minister any reports required by the Minister; and
   
   (b)       to make any modifications to the source, wastewater works or waterworks or to its operation as the Minister considers necessary.


5(6)            The Minister may issue an order under subsection (5) if the Minister is of the opinion that it is in the best interests of the public to make the order, in circumstances where
the source, wastewater works or waterworks has caused, is causing or may cause

   (a)       the natural, physical, chemical or biological quality or constitution of the environment to be affected,
   
   (b)       the health of human, plant or animal life or the safety or comfort of a human to be adversely affected,
   
   (c)         property or plant or animal life to be damaged or rendered unfit for use by persons, or
   
   (d)               visibility, the normal conduct of transport or business or the normal enjoyment of life or use or enjoyment of property to be interfered with.

5(7)            If the Minister is notified by the Minister of Health and Wellness that, in the interest of the public health in a municipality, it is necessary that a waterworks should be
constructed or modified, or that its operation should be commenced or modified, the Minister may order the municipality to undertake such construction or modification or
commence or modify such operation in accordance with any directions that the Minister may set out in the order.

5(8)            An order requiring the installation, replacement or alteration of a wastewater treatment facility or a waterworks may include

   (a)       a requirement that the person to whom the order is directed provide to the Minister such drawings, specifications and other information in relation to the facility as the
   Minister requires, and
   
   (b)       a compliance schedule requiring the completion of specified stages of construction or specified components or actions by specified dates.

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

5.001(1)                      A single order may deal with several contaminants or a combination of contaminants and may be directed to one or more persons.

5.001(2)                      Except in the case of an emergency situation, an order, including an amendment or revocation of an order, shall be in writing and shall include the reasons for the
order.

5.001(3)                      Each person to whom an order is directed is responsible for ensuring and shall ensure that all of the work directed to be performed under the order is carried out
and all of the action directed to be taken under the order is taken, at the person’s own expense, whether the order is directed to one or more than one person and whether or not
the Minister has given directions by order to all of the persons to whom an order may be directed.

5.001(4)                      A person to whom an order is directed and such other persons, materials and equipment as that person considers necessary may enter upon any area, land, place
or premises in order to comply with the order and may take all further action reasonably necessary to implement the directions contained in the order, and the owner or person in
charge of the area, land, place or premises and any employees or agents of the owner or person in charge shall immediately permit those persons, materials and equipment to have
all access reasonably necessary in order to implement fully and effectively the directions contained in the order.

5.001(5)                      An order remains in effect until

   (a)       the Minister has delivered a written notice to the persons to whom the order is directed, and to all other persons the Minister considers appropriate, to the effect that the
   order has been fully complied with, or
   
   (b)       the Minister has revoked the order.

5.001(6)                      A person to whom an order is directed may appeal in the manner provided by regulation, but the initiation of an appeal does not abrogate the requirement to
comply with the order.

5.001(7)                      An order is binding upon the heirs, successors, executors, administrators and assigns of the person to whom it is directed.

5                   Section 5.01 of the Act is repealed and the following is substituted:

5.01(1)   Subject to subsection 5.3(3), where a contaminant has been, is being or may be released into the environment in the circumstances described in subsection (3), the
Minister may enter upon any area, land, place or premises, together with such persons, materials and equipment as the Minister considers necessary and using the force the
Minister considers necessary, and may take such further action the Minister considers necessary in order to prevent, control, reduce or eliminate the release of the contaminant
and ameliorate the situation.

5.01(2)   The owner or person in charge, and any employees or agents of the owner or person in charge, of the area, land, place or premises entered under subsection (1) shall
immediately permit the persons, materials and equipment to have all access reasonably necessary in order to deal fully and effectively with the situation.

5.01(3)   The Minister may take action under subsection (1), whether or not an order has previously been issued in relation to the release, if the Minister is of the opinion that

   (a)       it is in the best interests of the public to take the action, in circumstances where the release of the contaminant has caused, is causing or may cause
   
      (i) the natural, physical, chemical or biological quality or constitution of the environment to be affected,
      
      (ii)       the health of human, plant or animal life or the safety or comfort of a human to be affected,
      
      (iii)       property or plant or animal life to be damaged or rendered unfit for use by persons, or
      
      (iv)       visibility, the normal conduct of transport or business or the normal enjoyment of life or use or enjoyment of property to be interfered with,
   
   (b)       the owner or the person having control of the contaminant

      (i) cannot readily be identified,
      
      (ii)       has not dealt or, if so ordered, would not deal effectively with the release so as to prevent, control, reduce or eliminate the release or ameliorate the situation, or
      
      (iii)       has requested the assistance of the Minister, and

   (c)         the release cannot be dealt with effectively by means of an order or a further order under this Act or the regulations.

5.01(4)   Actions taken by the Minister under subsection (1) may include those set out in subsection 5(1).

6                   Section 5.1 of the Act is repealed and the following is substituted:

5.1(1)      Subject to subsection 5.3(3), if, in the opinion of the Minister, the action taken under an order, this Act or the regulations is not adequate, the Minister may order the
taking of such remedial action as the Minister considers necessary.

5.1(2)      Subject to subsection 5.3(3), if a person to whom an order is directed fails or refuses to comply in whole or in part with the order or part of the order, the Minister, together
with such persons, materials and equipment as the Minister considers necessary, may enter upon any land or premises, using the force the Minister considers necessary, and may
take such further action the Minister considers necessary to effect compliance with or to carry out the order.

7                   Section 5.2 of the Act is amended

   (a)       by repealing subsection (1) and substituting the following:

5.2(1)      Upon written demand being made by the Minister, any costs incurred by the Minister while acting under section 5.01 or 5.1, including the cost of providing water and the
cost of all persons, materials and equipment employed and the cost of ameliorating any adverse effect of the release of a contaminant, or restoring any land, premises or personal
property under subsection 5.21(2) or of repairing any damage done when taking the action, shall be the liability of and paid by all persons

   (a)       who failed or refused to comply with any order in which they were directed to carry out the action, or
   
   (b)       whose act or omission caused, directly or indirectly, the release to which the matter relates.
   
(b)               by repealing subsection (2) and substituting the following:

5.2(2)      If more than one person is liable to the Minister for costs under subsection (1), the Minister may recover all or any portion of the costs from any one or any combination
of those persons, notwithstanding that any court may have determined the distribution of liability for the costs or that those persons may have made an agreement establishing a
distribution of the costs.

   (c)       by adding after subsection (2) the following:

5.2(2.1) Without restricting the generality of the costs that may be awarded in any application, action or other proceeding for the recovery of costs arising from the release or
threat of release of a contaminant into the environment, no defence shall lie and the quantum of costs awarded shall not be limited in any way, by reason only that the costs were
incurred by a person to whom an order was directed under this Act or the regulations respecting the release, in relation to performing work or taking action under the order,
including the costs of

   (a)       all persons, materials and equipment employed,
   
   (b)               ameliorating any adverse effect of the release,
   
   (c)               restoring any land, premises or personal property under subsection 5.21(1), or
   
   (d)               repairing any other damage whatsoever done in those circumstances.

5.2(2.2) The determination by settlement, by any court or by any other means of any responsibility or liability in relation to the release of a contaminant shall in no way abrogate
from the responsibility of any person to perform work or to carry out action in accordance with an order, to restore land, premises or personal property under subsection 5.21(1) or
to pay the Minister as required under subsection (1) or (2).

   (d)       by repealing subsection (3);

   (e)       by repealing subsection (4) and substituting the following:

5.2(4)      If

   (a)       the Minister has incurred any costs that remain unrecovered in part or in whole in relation to the release of a contaminant into the environment, and
   
   (b)       the Minister has made a written demand under subsection 5.2(1) where applicable,

the unrecovered costs may be recovered by the Minister by action in a court of competent jurisdiction as a debt owed to Her Majesty in right of New Brunswick.

   (f)         by repealing subsection (5) and substituting the following:

5.2(5)      No person shall make a claim for or seek to recover any costs incurred in relation to the release of a contaminant if the Minister has incurred unrecovered costs described
in paragraph (4)(a) in relation to that release, unless that person first delivers to the Minister written notice of the action to be taken.

   (g)       in subsection (6) by striking out “any cost, expense, loss, damages or charge” and substituting “any costs”;

   (h)       by adding after subsection (6) the following:

5.2(6.1) If the Minister has incurred costs described in paragraph (4)(a) and the Minister has made a written demand under subsection 5.2(1) where applicable, the Minister may
issue a certificate setting out the amount of the unrecovered costs and the certificate shall be delivered to all persons named in the certificate.

5.2(6.2) Fifteen days after the day upon which a certificate issued under subsection (6.1) has been delivered, the Minister may file the certificate in The Court of Queen’s Bench of
New Brunswick, and the certificate shall be entered and recorded in the Court, and when it is entered and recorded, the certificate becomes a judgment of the Court and may be
enforced as a judgment obtained in the Court against the person named in the certificate for the amount set out in the certificate.

5.2(6.3) A person named in a certificate issued under subsection (6.1) may appeal both his or her liability for the unrecovered costs and the amount of the unrecovered costs set
out in the certificate in the manner prescribed by regulation, and if an appeal is instituted under this subsection, the Minister may not file the certificate in accordance with
subsection (6.2) until after the appeal has been determined in accordance with the regulations.

   (i)         in subsection (7) by striking out “the cost, expense, loss, damages or charge” and substituting “the costs”;

   (j)         by repealing subsection (8) and substituting the following:

5.2(8)      If the Minister has incurred costs described in paragraph (4)(a) in relation to the release of a contaminant and a person to whom an order is directed is the insured under
an insurance policy that provides for coverage for any loss or damage resulting from such a release, the insurer shall pay to the Minister any costs incurred by the Minister while
acting under section 5.01 or subsection 5.21(2).

   (k)       in subsection (9) by striking out “any cost, expense, loss, damages or charge” and substituting “any costs”;

   (l)         by repealing subsection (12) and substituting the following:

5.2(12)   In any claim or action under this section, a certificate purporting to be signed by the Minister setting out the amount of the costs described in paragraph (4)(a) is, without
proof of the appointment, authority or signature of the person purporting to have signed the certificate, admissible in evidence and is, in the absence of evidence to the contrary,
proof

   (a)       of the amount of the costs set out in the certificate, and
   
   (b)       that the costs were made necessary or caused by the release of a contaminant to which the claim or action relates.

   (m)      by repealing subsection (13) and substituting the following:

5.2(13)   The provisions of this section apply, with the necessary modifications, to any costs incurred by the Minister while

   (a)       acting under a regulation under this Act in relation to the actual or anticipated release of a contaminant into the environment,
   
   (b)       acting in relation to a person’s failure or refusal to comply with an order, or
   
   (c)         carrying out an investigation or inspection in relation to the issuance of an order under this Act or the regulations.

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

5.21(1)   A person who is directed under an order to perform work or take action and who does so, whether personally or by an agent, on, over or under land that is not owned by
the person shall forthwith upon completing the work or action, restore the land and any premises and personal property adversely affected by the work or action to the condition
it was in before the work or action commenced, to the extent reasonably practicable and at the expense of the person to whom the order is directed.

5.21(2)   The Minister and all persons acting on behalf of the Minister shall, forthwith after taking action under section 5.01 on, over or under land that is not owned by the Crown
in right of the Province, restore the land and any premises and personal property adversely affected by the action to the condition it was in before the action commenced, to the
extent reasonably practicable.

5.22          The making of an order, the taking of action by the Minister under section 5.01 or subsection 5.1(2) or the restoring of land, premises or personal property under section
5.21 shall not

   (a)       affect the validity or force of any other order that may be made under this Act or the regulations before, during or after the issuing of that order or the taking of that
   action,
   
   (b)       be interpreted or deemed by any person or court to indicate that the release of a contaminant was caused, directly or indirectly, by any person to whom an order is
   directed under this Act or the regulations,
   
   (c)         be interpreted or deemed by any person or court to bear upon or affect the liability of any person to whom an order is directed under this Act or the regulations in
   relation to the release of a contaminant, or
   
   (d)       be interpreted or deemed by any person or court to bear upon or affect the liability of any person for any costs related to the release of a contaminant.

9                   Section 5.3 of the Act is amended

   (a)       in subsection (1) by striking out the portion preceding paragraph (a) and substituting the following:

5.3(1)      No person shall release any contaminant or any class of contaminant into or upon the environment or any part of the environment if to do so would or could

   (b)       by repealing subsection (2) and substituting the following:

5.3(2)      Subject to subsection (3), an order may be issued and any other action may be taken by the Minister under this Act or the regulations respecting the release of a
contaminant notwithstanding that the release is or may be caused or permitted by a person acting under authority or permission given under an Act of the Legislature and
notwithstanding that such person is or may be acting in compliance with such authority or permission.

   (c)       in subsection (3)

      (i) by striking out the portion preceding paragraph (a) and substituting the following:

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

      (ii)       in paragraph b) of the French version by striking out “a rendu une ordonnance” and substituting “a donné un ordre”;

      (iii)       in the portion following paragraph (c) by striking out “or waste”.

10                Section 7 of the Act is amended by striking out “or waste”.

11                      Subsection 14.1(2) of the French version of the Act is amended by striking out “Nulle ordonnance, directive ni condition émise, donnée ou imposée” and
substituting “Nul arrêté, directive ni condition pris, donné ou imposé”.

12                Section 24 of the Act is repealed and the following is substituted:

24                An inspector, at any reasonable time and upon presentation of identification on a form provided by the Minister, may, for the purpose of administering this Act,

   (a)       enter any area, land, place or premises where the inspector reasonably believes a contaminant was or is being or will be produced or in, into or from which the inspector
   reasonably believes a contaminant was or is being or will be released and inspect the area, land, place or premises,
   
   (b)       inspect any structure, installation, operation, plant or machinery, inspect and test any process of production or manufacture and any raw or manufactured substance or
   material used in or relating to the process that the inspector reasonably believes has been, is or will be producing or releasing a contaminant and take samples of discharges,
   deposits, effluents or emissions, and
   
   (c)         take samples of any substance or material.

13                Section 25 of the French version of the Act is amended by striking out “d’un secteur, d’un terrain, d’un lieu ou d’un local” and substituting “d’un endroit, d’un
terrain, d’une place ou d’un lieu”.

14                Section 32 of the Act is amended

   (a)       by repealing paragraph (a);

   (b)       by repealing paragraph (c);

   (c)       by repealing paragraph (q) and substituting the following:

   (q)               prescribing the responsibility for and the payment and recovery of any costs incurred by the Minister, including the cost of all persons, materials and equipment
   employed, and of repairing any damage done, to operate, rectify, control, reduce, eliminate, remove, modify, clean up, rehabilitate, remedy or investigate any matter or thing that
   is or may be in violation of this Act or the regulations;

   (d)       by repealing paragraph (q.1) and substituting the following:

   (q.1)               respecting the responsibility for and the payment and recovery of any costs incurred by any person, including the cost of all persons, materials and equipment
   employed, and of repairing any damage done, to operate, rectify, control, reduce, eliminate, remove, modify, clean up, rehabilitate, remedy or investigate any matter or thing that
   is or may be in violation of this Act or the regulations;

   (e)       in paragraph (q.4) by striking out “costs, expenses, losses, damages and charges” and substituting “costs”.

15                Section 33 of the French version of the Act is amended

   (a)       in subsection (1) in the portion preceding paragraph a) by striking out “ordre rendu” and substituting “arrêté pris”;

   (b)       in paragraph (4)c) by striking out “un ordre” and substituting “un arrêté”.

16                      Subsection 33.1(1) of the French version of the Act is amended in the portion preceding paragraph a) by striking out “Une ordonnance” and substituting “Un
arrêté”.

17                Section 36 of the French version of the Act is amended by striking out “arrêtés” and substituting “arrêtés, décrets”.

Consequential Amendments
18                      Subsection 2(2) of New Brunswick Regulation 82-126 under the Clean Environment Act is repealed.

19                      Subsection 5(4) of New Brunswick Regulation 87-97 under the Clean Environment Act is repealed.

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


.........................................................................................................................................................................................................
Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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