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This Act is current to October 31, 2018
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Environmental Management Act

[SBC 2003] CHAPTER 53

Part 7 — Powers in Relation to Managing the Environment

Division 1 — Pollution Assessment, Prevention and Abatement

Requirement to provide information

77   (1) For the purpose of determining whether there are reasonable grounds for making a pollution prevention order under section 81 [pollution prevention orders] or a pollution abatement order under section 83 [pollution abatement orders], a director may order a person who is conducting an industry, trade or business to provide to the director the information described in subsection (2) that the director requests, whether or not

(a) the industry, trade or business is prescribed for the purposes of section 6 (2) [waste disposal], or

(b) an activity or operation of the industry, trade or business is prescribed for the purposes of section 6 (3) [waste disposal].

(2) An order under subsection (1) must be served on the person to whom it applies and may require the person to provide, at his or her own expense, information relating to

(a) the operations or activities of the industry, trade or business, or

(b) substances used, stored, treated or introduced or caused or allowed to be introduced into the environment in the course of the industry, trade or business.

(3) Information required by an order under this section must be provided in the time and manner specified in the order.

(4) For the purposes of this section, "person" does not include a municipality.

Minister may require environmental impact assessment

78   If the minister considers that

(a) something a person proposes to do will have a detrimental environmental impact, and

(b) the environmental impact cannot be assessed from information available to the minister,

the minister may require the person to provide an environmental impact assessment in respect of that thing, prepared in accordance with the regulations.

Spill prevention and reporting

79   (1) In this section, "polluting substance" means any substance, whether gaseous, liquid or solid that, in the opinion of the minister, is capable of causing pollution if it were to

(a) escape into the air,

(b) be spilled onto any land or into any body of water, or

(c) escape onto any land or into any body of water.

(2) If a person has possession, charge or control of any polluting substance, the minister may, if the minister considers it reasonable and necessary to lessen the risk of an escape or spill of the substance, order that person

(a) to undertake investigations, tests, surveys and any other action the minister considers necessary to determine the magnitude of the risk and to report the results to the minister,

(b) to prepare, in accordance with the minister's directions, a contingency plan containing information the minister requires, and

(c) to construct, alter or acquire, at the person's expense, any works, or carry out at the person's expense any measures that the minister considers reasonable and necessary to prevent or abate an escape or spill of the substance.

(3) If an escape or spill occurs of a polluting substance for which a contingency plan was prepared, a director may order any person having possession, charge or control of the substance at the time it escaped or was spilled, or the person who prepared the plan or all of them to put the contingency plan into operation at their expense.

(4) The minister may order a person who prepared a contingency plan to test the plan.

(5) If a polluting substance escapes or is spilled or waste is introduced into the environment other than as allowed or authorized by

(a) section 6 [waste disposal], or

(b) a bylaw under section 31 [control of air contaminants in Greater Vancouver],

the person who had possession, charge or control of the substance or waste immediately before the escape, spill or introduction must, immediately after he or she learns of the escape, spill or introduction, report the escape, spill or introduction in accordance with the regulations.

(6) In a prosecution for a contravention of subsection (5), it is presumed that the accused knew of the escape, spill or introduction at the time of the alleged contravention and the burden of proving that he or she did not know is on the accused.

(7) The minister may amend or cancel an order made under this section.

Repealed

80   [Repealed 2016-20-3.]

Pollution prevention orders

81   (1) If a director is satisfied on reasonable grounds that an activity or operation has been or is being performed by a person in a manner that is likely to release a substance that will cause pollution, the director may order a person referred to in subsection (2), at that person's expense, to do any of the following:

(a) provide to the director information the director requests relating to the activity, operation or substance;

(b) undertake investigations, tests, surveys or any other action the director considers necessary to prevent the pollution and report the results to the director;

(c) acquire, construct or carry out any works or measures that are reasonably necessary to prevent the pollution;

(d) adjust, repair or alter any works to the extent reasonably necessary to prevent the pollution.

(2) An order made under subsection (1) may be served on one or more of the following persons:

(a) a person who previously had or now has possession, charge or control of the substance;

(b) a person who previously did anything, or who is now doing anything, which may cause the release of the substance;

(c) a person who previously owned or occupied, or now owns or occupies, the land on which the substance is located.

(3) An order made under subsection (1) may authorize a person or persons designated by the director to enter land for the purpose of preventing the pollution.

(4) The powers of a director under this section may not be exercised in relation to any part of an activity or operation that is in compliance with the regulations or a permit, approval, order, waste management plan or operational certificate or an authorization made under the regulations.

(5) For the purposes of this section, "person" does not include a municipality.

Preventing municipal pollution

82   If the minister is satisfied on reasonable grounds that an activity or operation has been or is being performed by a municipality in a manner that is likely to release a substance that will cause pollution of the environment, the minister may, with respect to the municipality, exercise the powers that a director may exercise under section 81 (1) [pollution prevention orders] in relation to other persons.

Pollution abatement orders

83   (1) If a director is satisfied on reasonable grounds that a substance is causing pollution, the director may order any of the following persons to do any of the things referred to in subsection (2):

(a) a person who had possession, charge or control of the substance at the time it was introduced or escaped into the environment;

(b) a person who owns or occupies the land on which the substance is located or on which the substance was located immediately before it was introduced into the environment;

(c) a person who caused or authorized the pollution.

(2) An order under subsection (1) must be served on the person to whom it applies and may require that person, at his or her own expense, to do one or more of the following:

(a) provide to the director information that the director requests relating to the pollution;

(b) undertake investigations, tests, surveys and any other action the director considers necessary to determine the extent and effects of the pollution and to report the results to the director;

(c) acquire, construct or carry out any works or measures that are reasonably necessary to control, abate or stop the pollution;

(d) adjust, repair or alter any works to the extent reasonably necessary to control, abate or stop the pollution;

(e) abate the pollution;

(f) carry out remediation in accordance with any criteria established by the director.

(3) An order under subsection (1) may authorize any persons designated by the director to enter land for the purpose of controlling, abating or stopping the pollution or to carry out remediation.

(4) A director may amend or cancel an order made under this section.

(5) The powers given by this section may be exercised even though the introduction of the substance into the environment is not prohibited under this Act or is authorized under this Act.

(6) For the purposes of this section, "person" does not include a municipality.

Abatement of municipal pollution

84   If the minister considers that a municipality is causing pollution, the minister may, with respect to the municipality, exercise the powers that a director may exercise under section 83 [pollution abatement orders] in relation to other persons.

Environmental protection orders

85   (1) The minister may declare that an existing or proposed work, undertaking, product use or resource use has, or potentially has, a detrimental environmental impact.

(2) A declaration under subsection (1)

(a) must be in writing,

(b) must state the facts on which it is based,

(c) is conclusive proof of those facts for the purposes of the declaration, and

(d) is binding on all persons and courts.

(3) If a declaration has been made under subsection (1), the minister, after notifying the person affected, but without the necessity of holding a hearing, may make an interim order

(a) restricting, modifying or prohibiting the operation of the work or undertaking or the use of the product or resource, or

(b) requiring the person to do anything that the minister requires to be done in relation to the work or undertaking or the use of the product or resource

for a period not exceeding 15 days and in a manner specified in the order.

(4) The minister may not extend or renew an interim order.

(5) Whether or not an interim order has been made or has expired, if a declaration has been made under subsection (1), the Lieutenant Governor in Council, after notifying the person affected, but without the necessity of holding a hearing, may make an order

(a) restricting, modifying or prohibiting the operation of the work or undertaking or the use of the product or resource, or

(b) requiring the person to do anything that the Lieutenant Governor in Council requires to be done in relation to the work or undertaking or the use of the product or resource

either permanently or for a specified period in a manner specified in the order.

(6) When an order of the Lieutenant Governor in Council under subsection (5) comes into force, an interim order in relation to the same subject matter expires.

(7) An order under subsection (3) or (5)

(a) may not be made later than one year after the date of the minister's declaration under subsection (1), and

(b) must state the reasons for making the order.

(8) Despite any other enactment, a person to whom an order under subsection (3) or (5) is expressed to apply must comply with the order.

Environmental management plan — in relation to environmental protection order

86   (1) If the minister has made a declaration under section 85 (1) [environmental protection orders] respecting a detrimental environmental impact, the Lieutenant Governor in Council may direct the minister to prepare an environmental management plan for the locality that is, or would be, impacted.

(2) If an environmental management plan has been prepared under subsection (1), the Lieutenant Governor in Council may

(a) approve the plan with or without modification, and

(b) for the purpose of implementing the plan, order that

(i) no licence, permit or power under an enactment may be issued or exercised in the locality, and

(ii) no waste may be discharged in the locality

except as authorized by and in accordance with the order.

(3) A licence or permit issued, or a power exercised, contrary to an order under subsection (2) (b) has no effect.

Environmental emergency measures

87   (1) In this section and section 88 [recovery of costs — environmental emergency]"environmental emergency" means an occurrence or natural disaster that affects the environment and includes the following:

(a) a flood;

(b) a landslide;

(c) a spill or leakage of oil or of a poisonous or dangerous substance.

(2) If the minister considers that

(a) an environmental emergency exists, and

(b) immediate action is necessary to prevent, lessen or control any hazard that the emergency presents,

the minister may make a declaration in writing that an environmental emergency under this section exists.

(3) If the minister has made a declaration under subsection (2), the minister, or a public officer authorized by the minister in writing, may order any person to

(a) provide labour, services, material, equipment or facilities, or

(b) allow the use of land

for the purpose of preventing, lessening or controlling the hazard presented by the emergency,

(4) If an order is made under subsection (3),

(a) compensation for labour or services must be paid as the Lieutenant Governor in Council provides, and

(b) compensation for material, equipment, facilities or the use of land, if not agreed on, must be set by arbitration under the Arbitration Act.

(5) An order under subsection (3)

(a) expires 15 days after it is made unless rescinded earlier under subsection (6), and

(b) does not require any person to supply labour who is unfit to do so or is under the age of 19.

(6) The Lieutenant Governor in Council may by order

(a) confirm, modify or rescind an order under subsection (3), and

(b) extend the term of an order under subsection (3) for a period the Lieutenant Governor in Council considers necessary.

(7) Subsection (6) (b) may not be applied to extend a requirement that a person supply labour.

(8) Despite any other enactment, a person affected by an order under subsection (3) or (6) must comply with the order.

Recovery of costs — environmental emergency

88   (1) If the minister certifies that money is required for immediate response to an environmental emergency, the amount the minister certifies to be required may be paid out of the consolidated revenue fund without an appropriation other than this section.

(2) A certificate signed by the minister and showing an amount of money expended by the government under this section is conclusive as to the amount expended.

(3) An amount shown by a certificate referred to in subsection (2) is a debt due to the government and, subject to subsection (4), is recoverable, by action in the Supreme Court from any person whose act or omission caused or who authorized the events that caused the environmental emergency in proportions the court determines.

(4) If the court is satisfied that the expenditure incurred by the government under this section was either

(a) excessive, taking into consideration the magnitude of the emergency and the results achieved by the expenditure, or

(b) unnecessary, taking into consideration the unlikelihood of significant material loss to any person had the government not acted under this section,

the court may reduce or extinguish the amount of the judgment that it otherwise would have ordered be entered against the person against whom the action has been brought.

(5) For the purpose of subsection (3), anything done or omitted by a person acting in the course of the person's employment is also the act or omission of the person's employer.

Division 2 — Area Based Management

Area based management plans — plan development

89   (1) If the minister considers it advisable for purposes of environmental management in an area, the minister may, by order,

(a) designate the area for the purpose of developing an area based management plan for the area, and

(b) establish a process for the development of the area based management plan for the designated area.

(2) An order under subsection (1) may, without limitation,

(a) establish who is to be responsible for preparing the area based management plan,

(b) establish the terms of reference for the plan or authorize the preparation of some or all of the terms of reference subject to the approval of the minister,

(c) require the establishment of a technical advisory committee in relation to the development of the plan, and

(d) require the participation in the development of the plan by specified licensees, permit holders or other persons the minister considers will be affected by the plan.

(3) The terms of reference for an area based management plan must include

(a) the purpose of the plan,

(b) the issues to be addressed in the plan,

(c) a process for public and stakeholder consultation,

(d) if a management plan under another enactment is proposed or exists in relation to the same area, directions for coordination with persons responsible for that plan, and

(e) a time limit for completing the plan.

(4) Without limiting subsection (2) (b), the terms of reference for an area based management plan may include consideration of any of the following:

(a) the impact of point and non point sources of waste;

(b) cumulative impacts of point and non point sources of waste;

(c) the economic and social costs and benefits of addressing risks to the environment through treatment;

(d) environmental management objectives and outcomes for the area;

(e) ongoing monitoring and reporting required to implement the plan.

Approval and effect of area based management plan

90   (1) The minister may approve, with or without amendment, an area based management plan ordered under section 89 [area based management plans — plan development].

(2) For the purpose of implementing an approved area based management plan, the minister, by order made applicable in relation to all or part of the designated area for the plan, may require that persons making decisions or classes of decisions under this Act consider the plan in making the decisions.

Permits under area based management plan

90.1   (1) Despite section 14 [permits], if the introduction of waste into the environment is provided for under an area based management plan, the minister may, in writing, order a director to issue a permit under that section authorizing the introduction of waste

(a) within a specified time,

(b) in accordance with any requirements or conditions, under section 14 (1) (a) to (f), specified in the order, and

(c) subject to other requirements or conditions, under section 14 (1) (a) to (f), the director considers advisable for the protection of the environment.

(2) Subject to subsection (3) and section 16 (2) [amendment of permits and approvals], the issuance of a permit under this section is final and binding and may not be appealed under Division 2 [Appeals from Decisions under this Act] of Part 8.

(3) Requirements or conditions the director considers advisable under subsection (1) (c) and amendments the director makes under section 16 (2) may be appealed under Division 2 of Part 8.

Amendments to area based management plan

90.2   (1) If the minister considers it advisable for the purposes of environmental management, the minister may, by order, establish a process for the development of an amendment to an approved area based management plan.

(2) Section 89 (2) and (3) [area based management plans — plan development] applies to an order to amend an area based management plan.

(3) The minister may approve, with or without further amendment, an amendment to an area based management plan.

(4) Upon approval of an amendment, the area based management plan is conclusively deemed, for all purposes, to be as modified by the amendment.

Publication obligations

91   The minister must publish in the prescribed manner

(a) on the making of an order under section 89 (1) [area based management plans — plan development], the order,

(b) if an area based plan is approved under section 90 [approval and effect of area based management plan], the plan and any order under section 90 (2),

(c) an order under section 90.1 (1) [permits under area based management plan],

(d) an order under section 90.2 (1) [amendments to area based management plan], and

(e) if an amendment is approved under section 90.2 (3), the amendment.

Division 2.1 — Spill Preparedness, Response and Recovery

Definitions

91.1   In this Division:

"area response plan" means a plan referred to in section 91.51 (1) [area response plans];

"conditional PRO" means a preparedness and response organization that holds a conditional PRO certificate;

"conditional PRO certificate" means a certificate issued under section 91.41 (1) [preparedness and response organizations];

"environment" includes

(a) flora and fauna, and

(b) for certainty, animal, fish and plant habitat;

"first nation government" means

(a) the governing body of a band, as defined in the Indian Act (Canada),

(b) a treaty first nation,

(c) a Nisga'a Government, and

(d) the council of the Sechelt Indian Band;

"geographic response area" means the area designated under section 91.31 (2) [geographic response plans] for a geographic response plan;

"geographic response plan" means a plan referred to in section 91.31 (2);

"infrastructure" includes buildings, bridges, drinking water intakes, utility conduits and wastewater treatment plants;

"local government" means

(a) the council of a municipality,

(b) the board of a regional district,

(c) a local trust committee, or the trust council, as defined in section 1 of the Islands Trust Act,

(d) a greater board, or

(e) an improvement district;

"preparedness and response organization" means an organization that provides or intends to provide spill preparedness and response services in British Columbia;

"PRO" means a preparedness and response organization that holds a PRO certificate;

"PRO certificate" means a certificate issued under section 91.41 (2);

"regulated person" means

(a) a person who, in the course of operating an industry, trade or business, has possession, charge or control of a prescribed substance in prescribed quantities, or

(b) a person referred to in paragraph (a) whose employee, under the person's direction, has possession, charge or control of a prescribed substance in prescribed quantities;

"responsible person" means a person who has possession, charge or control of a substance or thing when a spill of the substance or thing occurs or is at imminent risk of occurring;

"spill" means the introduction into the environment, other than as authorized under this Act and whether intentional or unintentional, of a substance or thing that has the potential to cause adverse effects to the environment, human health or infrastructure;

"spill contingency plan" means a plan described in section 91.11 (1).

Regulated persons — spill contingency planning

91.11   (1) A regulated person must ensure that

(a) on or before the prescribed date, the regulated person has a spill contingency plan that complies with the regulations,

(b) the spill contingency plan is reviewed, updated and tested in the prescribed manner and at the prescribed frequency,

(c) the spill contingency plan is made available to employees of the regulated person in accordance with the regulations,

(d) the spill contingency plan demonstrates that the regulated person has the capability to effectively respond to a spill, and

(e) if required by the regulations, the spill contingency plan is published in accordance with the regulations.

(2) Before a spill contingency plan is prepared in relation to a regulated person, the regulated person must ensure that investigations, tests and surveys are undertaken in accordance with the regulations, if any, that are necessary to determine the magnitude of the risk to

(a) the environment and human health, and

(b) infrastructure

that would result from a spill of the substance in respect of which the person is a regulated person.

(3) A regulated person must ensure that, in accordance with the regulations,

(a) records respecting investigations, tests and surveys referred to in subsection (2) are prepared and kept for the prescribed period,

(b) prescribed reports are prepared and submitted to a director,

(c) employees of the regulated person receive prescribed training to prescribed standards, and

(d) employees of the regulated person engage in spill response training exercises and drills in the prescribed manner and at the prescribed frequency.

(4) A regulated person must ensure that, if a spill occurs, a spill contingency plan is implemented to the extent the plan is applicable.

(5) If ordered by a director, a regulated person must provide to the director, at the regulated person's own expense and in the time and manner specified by the director,

(a) a copy of the regulated person's spill contingency plan,

(b) information relating to

(i) the operations or activities of the industry, trade or business, or

(ii) substances used, stored, treated, produced or transported by the regulated person,

(c) prescribed declarations in respect of spill preparedness and response capability, and

(d) prescribed information.

(6) A director who requests a copy of a spill contingency plan may order that the spill contingency plan be amended in accordance with the director's directions and resubmitted in the time specified by the director, if the director is satisfied that the spill contingency plan does not comply with this Act or the regulations.

(7) A director may order a regulated person to test the efficacy of the regulated person's spill contingency plan in the time and manner specified by the director.

Responsible persons — spill response

91.2   (1) A responsible person in relation to a spill must, in accordance with the regulations,

(a) report the prescribed information about the spill to the prescribed persons in the prescribed time and manner,

(b) provide any information to an officer that the officer requests respecting response activities in relation to the spill, and

(c) ensure that persons with the skills, experience, resources and equipment necessary to properly deal with the spill

(i) arrive at the spill site, sites affected by the spill and prescribed sites associated with the spill within the prescribed period after the spill, and

(ii) implement an incident command system in the prescribed time and manner.

(2) Subject to the regulations, if a spill occurs or is at imminent risk of occurring, the responsible person in relation to the spill must ensure that the actions necessary to address the threat or hazard caused by the spill are taken, which actions may include, but are not limited to, the following actions, if applicable:

(a) assess, monitor and prevent, or prevent the continuation of, the threat or hazard caused by the spill;

(b) stabilize, contain, remove and clean up the spill;

(c) identify and evaluate the immediate risks to and impacts on the environment, human health or infrastructure and, as necessary,

(i) advise persons to take protective action in relation to the spill,

(ii) protect infrastructure, and

(iii) protect, recover and restore the environment;

(d) identify and evaluate the long term impacts of the spill;

(e) take steps to resolve or mitigate those immediate and long term impacts.

(3) If a director is satisfied on reasonable grounds that compliance with the regulations is not sufficient to fully deal with the adverse effects of a spill on the environment, human health or infrastructure, the director may order the responsible person to take specified spill response actions that the director considers are necessary or advisable in addition to the regulatory requirements.

(4) A director may order a responsible person in relation to a spill to prepare, in accordance with the regulations, and submit to the director, in the time and manner specified by the director, a recovery plan, or an amended recovery plan, to resolve or mitigate the impacts of the spill.

(5) The director may

(a) approve, by order, a recovery plan submitted under subsection (4), or

(b) direct that the recovery plan be amended in accordance with the director's directions and resubmitted in the time and manner specified by the director.

(6) A responsible person must ensure that

(a) an approved recovery plan is carried out by a person the director is satisfied has

(i) the qualifications necessary to properly carry out the plan, and

(ii) access to personnel with the necessary skills and training,

(b) an approved recovery plan is carried out by the date specified by the director, and

(c) at the conclusion of the recovery process, in accordance with the regulations, a report is prepared and submitted to the director.

(7) Section 91.4 (8) and (9) (a) [government spill response] applies to a director in relation to the exercise of the director's powers and performance of the director's duties under this section.

When restoration not reasonably achievable

91.21   (1) This section applies

(a) if a director is satisfied that

(i) the impacts of a spill on the environment cannot be restored, or cannot be completely restored, at sites affected by the spill,

(ii) the impacts of a spill on the environment cannot reasonably be restored, or cannot reasonably be completely restored, because the following would not be commensurate with the result of restoration or complete restoration activities:

(A) damage to the environment or human health;

(B) the costs of the restoration activities, or

(iii) it is not safe to undertake restoration activities at sites affected by the spill, or

(b) in prescribed circumstances.

(2) In the circumstances described in subsection (1), the director may order that the recovery plan for the spill provide for

(a) mitigation measures, to be taken elsewhere, that compensate, or partially compensate, for the type of damage caused by the spill, or

(b) payment by the responsible person, to a person specified by the director, of an amount the director considers equivalent to the amount the responsible person would have been liable to if restoration or complete restoration were reasonably or safely achievable.

(3) A director may specify a person for the purposes of subsection (2) (b) only if the director is satisfied that

(a) the person operates on a predominately not-for-profit basis and has purposes restricted to

(i) the conservation or enhancement of biological diversity, fish, fish habitat, wildlife or wildlife habitat, or

(ii) a prescribed purpose, and

(b) the person will apply the funds to a project that will, in whole or in part, compensate for the damage caused by the spill.

Certificate of recovery

91.3   If a director is satisfied on the basis of a report under section 91.2 (6) (c) [responsible persons — spill response] that an approved recovery plan has been carried out, the director may issue to the responsible person a certificate to that effect.

Geographic response plans

91.31   (1) For the purposes of this section, "plan leaders" means the regulated persons ordered under subsection (3) to prepare a geographic response plan.

(2) The minister, by order, may designate an area for the purpose of the development of a geographic response plan applicable throughout the area

(a) if the minister considers that a geographic response plan will assist

(i) in minimizing the effects of a spill on a body of water, a sensitive ecosystem or a culturally sensitive or archaeologically, socially, economically or historically significant site in the area, or

(ii) in increasing the efficiency of spill response in the area, or

(b) in prescribed circumstances.

(3) In an order under subsection (2), the minister may order the regulated persons who carry on an industry, trade or business, or related activities, in the geographic response area, or a class of those regulated persons, to prepare, or to review, update and test, a geographic response plan in accordance with the minister's order and the regulations.

(4) An order under subsection (2) must establish the terms of reference for the geographic response plan, or authorize the preparation of some or all of the terms of reference subject to the approval of the minister, which terms of reference must include, but are not limited to,

(a) the matters to be addressed in the proposed geographic response plan, which matters may include, but are not limited to,

(i) locations of bodies of water, sensitive ecosystems, culturally sensitive or archeologically, socially, economically or historically significant sites in the area,

(ii) locations of potential response staging sites,

(iii) locations and profiles of the biological and other resources that could be affected by a spill, including, without limitation,

(A) threatened and endangered species,

(B) important or unique animal, fish or plant habitat,

(C) areas of human habitation and recreational activities, and

(D) water and agricultural resources,

(iv) locations of key infrastructure,

(v) tactics for addressing spills and impacts of spills in the area, including, without limitation, collection techniques, and

(vi) prescribed matters,

(b) a time limit for completing the proposed plan, and

(c) any other prescribed information.

(5) An order under subsection (2) may, subject to the regulations,

(a) require the establishment of an advisory committee in relation to the development, review, testing and updating of the geographic response plan and the reimbursement of the members of the committee for reasonable travelling and out-of-pocket expenses necessarily incurred in carrying out their duties,

(b) specify persons and organizations or classes of persons or organizations whose input must be invited and considered,

(c) require the plan leaders to carry out a public consultation in accordance with the regulations, and

(d) specify persons or organizations or classes of persons or organizations who are responsible for paying the reasonable costs of developing, reviewing, testing and updating the geographic response plan.

(6) A geographic response plan must

(a) be in the prescribed form,

(b) contain provisions respecting the prescribed matters, and

(c) be published in accordance with the regulations.

Government spill response

91.4   (1) The government may carry out actions described in section 91.2 (2) [responsible persons — spill response] if an officer considers that

(a) a spill has occurred or there is an imminent risk of a spill occurring,

(b) action is necessary to address a spill or the risk of a spill or to resolve or mitigate long term effects of a spill, and

(c) one or more of the following apply:

(i) there is no responsible person in relation to the spill;

(ii) an officer has reasonable grounds to believe that government action is required to safeguard the environment, human health or infrastructure;

(iii) the responsible person in relation to the spill requests that the government assist with spill response and recovery actions.

(2) In addition to actions under section 91.2 (2), if a director considers it necessary or desirable in the event of a spill, the government may take actions in relation to any of the following:

(a) any aspect of the management of the spill and its effects;

(b) impacts of the spill on public property, public amenities or areas to which the public has access;

(c) impacts of the spill on private property;

(d) impacts of the spill on any part of the environment.

(3) Subject to the regulations, the costs incurred by the government under this Division in relation to a spill are a debt due to the government by the responsible person and the owner of the substance or thing spilled.

(4) The costs referred to in subsection (3) include all of the government's costs in relation to the spill, including, without limitation,

(a) for

(i) the use of government employees or contractors in the response, including hourly rates and expenses, including food, accommodation and mileage,

(ii) the use of government vehicles, including mileage,

(iii) the use of consulting and other professional services,

(iv) the use, maintenance and repair of government equipment,

(v) private goods and services contracted, hired, rented or purchased,

(vi) research and analytical services related to recovery actions, and

(vii) mitigating the effects of the spill on the public, and

(b) a prescribed percentage of those costs the Lieutenant Governor in Council considers is sufficient to meet the government's administrative costs.

(5) The responsible person and owner referred to in subsection (3) are jointly and separately liable for amounts described in that subsection.

(6) For the purpose of recovering costs referred to in subsection (3), a director may file a certificate with a court that has jurisdiction, and, upon filing, the certificate has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court with which it is filed against the persons named, and in the amount set out, in that certificate.

(7) A certificate under subsection (6) may be in the prescribed form, must be signed by a director and must contain

(a) the name of the responsible person in relation to the spill and the owner of the substance or thing that was spilled,

(b) the date and place of the spill to which the certificate relates, and

(c) the costs referred to in subsection (3).

(8) No legal proceeding for damages lies or may be commenced or maintained against the government, an employee of the government or a person acting on behalf of or under the direction of the government because of anything done or omitted

(a) in the performance or intended performance of any duty under this section in relation to a spill, or

(b) in the exercise or intended exercise of any power under this section in relation to a spill.

(9) Subsection (8) does not apply to

(a) a person referred to in that subsection in relation to anything done or omitted by that person in bad faith, or

(b) a responsible person, whether or not the responsible person is acting under the direction of the government.

Preparedness and response organizations

91.41   (1) On application in accordance with the directions of the minister and the regulations, if any, the minister may issue a conditional PRO certificate to a preparedness and response organization that demonstrates to the minister's satisfaction that the organization has the capacity to be fully capable and intends to be fully capable, within the period and the area specified by the minister, to

(a) promptly and capably deal with spills and the impacts of spills within that area, including having access to the necessary equipment, personnel and other resources, and

(b) perform prescribed duties given under this Part to a regulated person or a PRO.

(2) On application by a conditional PRO or on the minister's own initiative, the minister may, if the minister is satisfied that the conditional PRO is fully capable as described in subsection (1), issue a PRO certificate to the conditional PRO or, on the minister's own initiative, the minister may, at the expiry of a conditional PRO certificate, revoke the conditional PRO certificate.

(3) A conditional PRO certificate and a PRO certificate

(a) must contain the prescribed terms and conditions, if any, and

(b) may contain the terms and conditions the minister considers necessary or advisable.

(4) A conditional PRO and a PRO must comply with the terms and conditions of the conditional PRO certificate or the PRO certificate, as applicable.

(5) To ensure that a conditional PRO or PRO, as applicable, becomes or remains, as applicable, fully capable as described in subsection (1) (a) and (b), the minister may amend, as the minister considers necessary or advisable for that purpose, the terms and conditions of

(a) a conditional PRO certificate, including by extending the period specified in the conditional PRO certificate if the minister is satisfied that the conditional PRO has the capacity to be capable as described in subsection (1) by the end of the extension, or

(b) a PRO certificate.

(6) An application under subsection (1) must include, for the approval of the minister,

(a) a business plan that demonstrates that the organization has the capacity to be fully capable as described in subsection (1) within the period specified under that subsection,

(b) prescribed information and records, if any, and

(c) any other information or records the minister requests.

(7) To be eligible for a PRO certificate, a conditional PRO must provide all of the following:

(a) an area response plan, prepared by the conditional PRO, that demonstrates to the satisfaction of the minister that the conditional PRO, in accordance with the regulations,

(i) consulted any person who would have an interest in the event of a spill in the specified area, and

(ii) enabled the participation of persons referred to subparagraph (i) in the development of the area response plan, including, in the case of local governments and first nation governments, providing reimbursement of reasonable travelling and out-of-pocket expenses necessarily incurred as a result of that participation;

(b) prescribed information and records, if any;

(c) any other information or records the minister requests.

(8) It is a term of a PRO certificate that the PRO must establish, and include in its arrangements with regulated persons, a procedure for dealing with complaints made to the PRO by those regulated persons, in respect of the fees and other amounts charged by the PRO.

(9) Subject to the regulations, if the minister is satisfied that a conditional PRO or a PRO is not complying with the terms and conditions of the conditional PRO certificate or PRO certificate, as applicable, the minister may cancel the certificate.

Complaint to minister respecting fees

91.5   (1) A person who is required under the regulations to use the services of a PRO and who has a complaint about the fees or other charges the PRO is imposing for those services may, on payment of the prescribed fee for filing a complaint, if any, file a complaint with the minister.

(2) On receiving a complaint under subsection (1), the minister may, by order,

(a) dismiss the complaint, or

(b) after hearing from the PRO and the complainant in any manner the minister considers appropriate,

(i) dismiss the complaint,

(ii) order the PRO to adjust its fees,

(iii) waive a fee payable by the complainant to the PRO, or

(iv) prohibit the fee being imposed on any person.

(3) After exercising authority under subsection (2) in relation to a complaint, the minister may, by order, award costs to the PRO or the complainant in the amount the minister considers appropriate.

(4) A person in whose favour an order is made under subsection (3) may file the order with a court that has jurisdiction and, upon filing, that order has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court with which it is filed against the person named, and in the amount set out, in the order.

Area response plans

91.51   (1) A conditional PRO that wishes to be certified as a PRO must prepare, and publish, in accordance with the regulations and in the time specified by the minister, a response plan for the area designated in its conditional PRO certificate.

(2) A PRO, in accordance with the regulations, must review, update, test and republish an area response plan prepared under subsection (1).

(3) Subject to the regulations, an area response plan must include information respecting spill response procedures and strategies, including, without limitation,

(a) available equipment and other resources,

(b) where the equipment and resources can be obtained,

(c) other logistical information, and

(d) prescribed information respecting prescribed matters.

(4) Subject to the regulations, a conditional PRO preparing an area response plan and a PRO reviewing and updating an area response plan must

(a) establish an advisory committee in relation to the development of an area response plan, and

(b) reimburse the advisory committee members for reasonable travelling and out-of-pocket expenses necessarily incurred in carrying out their duties.

Right of entry to respond to spill

91.6   The government, and any person directed by the government, may carry out spill response actions anywhere and, without limiting this, may enter on private property for the purpose of carrying out those actions.

Minister's advisory committee respecting spill response

91.61   (1) The minister may establish an advisory committee, consisting of individuals appointed by the minister, to provide advice and recommendations to the minister on any aspect of spill preparedness, response or recovery under this Division.

(2) The minister may appoint to a minister's advisory committee any individual whose advice or recommendations the minister considers desirable, including, without limitation,

(a) representatives of local governments,

(b) representatives of first nation governments, and

(c) individuals with technical expertise in relation to spill preparedness, response or recovery.

(3) An individual appointed to a minister's advisory committee must be reimbursed, in accordance with the general directives of Treasury Board, for reasonable travelling and out-of-pocket expenses necessarily incurred in carrying out his or her duties.

Report to the Legislative Assembly

91.7   At the prescribed frequency, the minister must lay before the Legislative Assembly a report respecting the administration and operation of this Division, and the effectiveness of the spill response scheme under this Division, for the period beginning, as applicable,

(a) on the date this section comes into force, or

(b) on the date the last report under this section is laid before the Legislative Assembly.

Requirement to provide information

91.71   (1) A person who, in the course of operating an industry, trade or business, has possession, charge or control of a substance, other than a substance prescribed for the purposes of the definition of "regulated person" in section 91.1, that a director has reasonable grounds to believe may, if spilled, cause adverse effects on the environment, human health or infrastructure must, on request of the director, provide the following within the time specified by the director:

(a) information respecting the substance and its properties;

(b) information respecting the potential adverse effects that would be caused to the environment, human health or infrastructure were the substance spilled;

(c) information respecting the quantities of the substance of which the person has, or intends to have, possession, charge or control;

(d) prescribed information.

(2) A person who, in the course of operating an industry, trade or business, has possession, charge or control of a substance prescribed for the purposes of the definition of "regulated person" in section 91.1 must, on request of a director, provide information, within the time specified by the director, respecting the quantities of the substance of which the person has, or intends to have, possession, charge or control.

Division 3 — Regulations for Part 7

Regulations for purposes of Part 7

92   (1) Without limiting section 138 (1) [general authority to make regulations], the Lieutenant Governor in Council may make the following regulations:

(a) [Repealed 2016-20-5.]

(a.1) respecting conditional PROs and PROs, including, without limitation,

(i) prescribing application requirements,

(ii) prescribing qualifications that a preparedness and response organization must have and requirements that the organization must satisfy to be conditionally certified as a conditional PRO or certified as a PRO,

(iii) respecting the issuance, amendment, suspension, reinstatement, cancellation or renewal of a conditional PRO certificate or a PRO certificate, and

(iv) respecting the terms and conditions of a conditional PRO certificate or a PRO certificate;

(a.2) requiring regulated persons to enter into arrangements with a PRO respecting the regulated person's use of a PRO's services to meet specified obligations of a regulated person under Division 2.1 [Spill Preparedness, Response and Recovery];

(a.3) respecting geographic response plans, including, without limitation,

(i) respecting the form and content of a geographic response plan,

(ii) respecting the terms of reference the minister must establish or authorize the preparation of under section 91.31 (4) [geographic response plans],

(iii) providing for the review, testing, updating and publication of geographic response plans,

(iv) respecting the consultation process referred to in 91.31 (5) (c), and

(v) requiring a regulated person that carries on business or related activities in a geographic response area to ensure that the geographic response plan addresses a spill of the substance in respect of which the person is a regulated person;

(a.4) respecting recovery plans, including, without limitation,

(i) prescribing the matters that must be addressed by a recovery plan, including, without limitation, providing for complete recovery of the spill site or compensation payable in accordance with section 91.21 (2) [when restoration not reasonably achievable] by the responsible person for the spill for damage to the environment, human health or infrastructure or loss of public use,

(ii) prescribing a process for public review and comment,

(iii) prescribing a process for obtaining the director's approval of the recovery plan, and

(iv) requiring a plan for long term monitoring of sites affected by a spill;

(a.5) respecting area response plans, including, without limitation,

(i) respecting the form, content and publication of an area response plan,

(ii) respecting the development, review, updating and testing of an area response plan, including, without limitation, imposing requirements on a conditional PRO or a PRO to

(A) engage in a prescribed process of public consultation, or

(B) establish an advisory committee and reimburse its members for reasonable travelling and out-of-pocket expenses necessarily incurred in carrying out their duties;

(b) respecting the costs referred to in section 91.4 (3) [government spill response];

(c) respecting the publication required under section 91 [publication obligations];

(d) exempting a person, an organization or a thing or a class of persons, organizations or things from any provisions of Division 2.1 or the regulations under this Division, in circumstances and on conditions that the Lieutenant Governor in Council prescribes.

(2) Section 139 [regulations — general rules] applies for the purpose of making regulations under this section.

Minister's regulations for purposes of Part 7

92.1   (1) Without limiting section 138 (1) [general authority to make regulations], the minister may make the following regulations:

(a) respecting spill response actions, including, without limitation, imposing requirements, procedures and standards on responsible persons respecting

(i) implementation of an incident command system, including, without limitation,

(A) requiring that an incident command system be established within a specified time after the spill, and

(B) establishing requirements and standards in relation to the incident command system,

(ii) notification of spills or imminent risks of spills,

(iii) sampling, testing, monitoring and assessing,

(iv) response times,

(v) communications,

(vi) equipment and personnel,

(vii) education, training and practice,

(viii) record keeping, and

(ix) reporting and publication requirements;

(b) respecting spill contingency plans, including, without limitation, respecting

(i) the content of spill contingency plans, and

(ii) requirements, assessments, procedures and standards for the content, review, evaluation, updating, publication and testing of spill contingency plans;

(c) establishing the contravention of a regulation under this section as an offence and prescribing a penalty for the offence of a fine not exceeding $200 000.

(2) Regulations under subsection (1) may require that a spill contingency plan of a regulated person address the worst case scenario of a spill of the substance in respect of which the person is a regulated person.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 6.1 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11