BILL NO. 153

(as introduced)

2nd Session, 63rd General Assembly
Nova Scotia
68 Elizabeth II, 2019

Private Member's Bill

Clean Air Act

Karla MacFarlane
Pictou West

First Reading: September 25, 2019

Second Reading:

Third Reading:

An Act Respecting Clean Air

Be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Clean Air Act.

2 In this Act,

(a) "administrative penalty" means an administrative penalty imposed under Section 33;

(b) "advisory committee" means an advisory committee appointed under Section 15;

(c) "air" means the atmosphere but does not include the atmosphere within a building or within the underground workings of a mine;

(d) "air resource management area" means an air resource management area established under Section 11;

(e) "analyst" means an analyst designated under Section 29;

(f) "animal" means a vertebrate, an invertebrate or a micro-organism, whether living or dead, other than a human;

(g) "approval" means an approval issued under this Act or the regulations that has not expired or been suspended or cancelled;

(h) "contaminant" means

(B) affects the natural, physical, chemical or biological quality or constitution of the environment, or

(C) endangers the health of human, plant or animal life or the safety or comfort of a human, causes damage to property or plant or animal life or renders them unfit for use by persons or interferes with visibility, the normal conduct of transport or business or the normal enjoyment of life or use or enjoyment of property,

(ii) any pesticide or waste, or

(iii) anything that is designated by the Minister as a contaminant under Section 8;

(i) "costs" includes expenses, disbursements, losses, damages and charges;

(j) "directive" means an order, a direction, a designation, an objective, a guideline, a standard, a code of practice, a term, a condition, a requirement, a proposal or a policy made, issued, given, established or imposed under or in accordance with this Act or the regulations;

(k) "environment" means the components of the Earth and includes

(ii) all organic and inorganic matter and living organisms, and

(iii) the interacting natural systems that include components referred to in clauses (i) and (ii);

(l) "inspector" means an inspector designated under subsection 25(1);

(m) "land" includes soil, earth and the terrain;

(n) "Minister" means the Minister of Environment and includes any person designated by the Minister to act on the Minister's behalf;

(o) "Minister of Health and Wellness" includes a person designated by the Minister of Health and Wellness to act on that Minister's behalf;

(p) "objective" means an amount, a level, a concentration, or a narrative statement, established by the Minister in accordance with subsection 9(1) to support and maintain a certain environmental condition;

(q) "order" means an order issued under this Act or the regulations, but does not include an order issued under Section 8, subsection 9(1) or (4), Section 11 or subsection 36(1);

(r) "permit" means a permit issued under this Act or the regulations that has not expired or been suspended or cancelled;

(s) "person", in addition to the meaning ascribed to it by the Interpretation Act, includes Her Majesty in right of Canada, Her Majesty in right of the Province and a municipality or village;

(t) "pesticide" means a pesticide as defined in the Environment Act;

(u) "register" means a register maintained by the Minister under subsection 13(1);

(v) "registration" means a registration under this Act or the regulations that has not expired or been suspended or cancelled;

(w) "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 air, whether or not the contaminant or other matter previously existed in the air;

(x) "waste" includes rubbish, slimes, tailings, effluent, wastewater, fumes, smoke, other waste products of any kind and any other matter that is prescribed by the regulations to be waste;

(y) "water" includes

(ii) the ice of any body of water.

3 The purpose of this Act and the regulations is to support and promote the protection, restoration, enhancement and wise use of the environment in keeping with the following principles:

(a) controlling the release of contaminants and ameliorating their impacts is essential to the maintenance of ecosystem integrity, the protection of human health and the general well-being of society;

(b) in making decisions under this Act and the regulations, the Government should consider the potential impacts on biotic and abiotic processes that have shaped natural ecosystems over time, and should endeavour to accommodate and sustain such processes;

(c) all persons, both individual and corporate, should be encouraged to adopt practices that will prevent or minimize the creation of contaminants;

(d) the use of resources and the environment should not compromise the health or the economic or social well-being of future generations;

(e) all persons should be responsible for the consequences of their actions on the environment;

(f) the Government should allow residents of the Province to have access to information about activities that pose or may pose a threat to their health or to the environment;

(g) the Government should provide opportunities for the public to participate in decisions related to matters that pose or may pose a threat to health or to the environment and should consider the advice provided;

(h) scientific information should be a fundamental part of the decision-making process in the administration of this Act and the regulations, but lack of full scientific certainty should not delay or deter the implementation of measures to prevent the release of contaminants or the spread of contamination where there are threats of serious or irreversible damage to the environment;

(i) the Government should consider the potential impacts of contaminants released in the Province on ecosystems outside its borders, and should encourage the taking of similar actions by the governments of other jurisdictions; and

(j) the Government should consider the principles set out in this Section in the development and implementation of all of its regulations, policies, programs and practices.

4 Her Majesty in right of Canada and Her Majesty in right of the Province are bound by this Act.

5 The Minister is responsible for the general supervision and management of this Act and may designate persons to act on the Minister's behalf.

6 (1) Subject to subsection (2) and except where otherwise specified, where a conflict exists between this Act or any regulation made under this Act, and any other Act of the Legislature, whether public or private, or any regulation made under any other Act, this Act, including any regulation made under this Act, prevails.

(2) Where a conflict exists between this Act or any regulation made under this Act and the Health Protection Act or any regulation made under the Health Protection Act in a matter relating principally to public health, the Health Protection Act and any regulation made under it prevail.

(3) No directive, program or committee made, issued, given, established or imposed and no prosecution commenced under this Act or any regulation made under this Act is invalid, and no action taken by the Minister under, or taken by a person in accordance with any order made under, this Act or the regulations is unauthorized, by reason only that it might also have been made, issued, given, established, imposed, commenced or taken under the Environment Act, a regulation made under either of those Acts or an order made under any of those Acts or regulations.

7 (1) Where authority or permission is required under an Act of the Legislature or a regulation under such an Act in order to release a contaminant or a class of contaminant into the air, no person shall release that contaminant into the air unless acting under and in compliance with the required authority or permission.

(2) Notwithstanding subsection (1), no person shall, directly or indirectly, cause or permit the release into the air of a contaminant or a class of contaminant with the result that the release

(a) causes damage to any property;

(b) substantially interferes with the normal conduct of any business; or

(3) Notwithstanding any other provision of this Act, a charge may be laid under this Act or the regulations, an order may be made under this Act or the regulations and any other action may be taken by the Minister, the employees of the Minister or other persons acting in accordance with an order 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 and in compliance with authority or permission under any Act of the Legislature or of the Parliament of Canada, a regulation under either of them or any by-law.

8 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 air, 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.

9 (1) The Minister, by order and in accordance with the regulations, shall establish and may amend objectives relating to the quality and constitution of the air and having application within the Province as provided for in Section 12.

(2) Before establishing or amending objectives, the Minister shall

(a) collaborate with the Minister of Health and Wellness;

(b) give notice to the public and to such other persons as the Minister considers appropriate of the intended establishment or amendment of the objectives, as the case may be, in accordance with subsection (3);

(c) afford the public and other persons an opportunity to comment to the Minister respecting the objectives, during a period of at least 90 days following the giving of public notice; and

(d) consider the comments received under clause (c).

(3) A public notice given under subsection (2) must contain the proposed new or amended objectives and such other information as the Minister considers appropriate, must be published in The Royal Gazette, may be published on the Internet and must be disseminated in such other manner as the Minister considers appropriate.

(4) Notwithstanding subsections (1) and (2), after consulting with the Minister of Health and Wellness, the Minister may, on the coming into force of this subsection, by order establish objectives as described in subsection (1) without following the procedures set out in subsections (1) and (2).

10 The Minister shall, in each year, table a written report in the House of Assembly respecting the success in achieving the objectives and respecting such other matters as the Minister considers appropriate.

11 Without limiting the application of Section 12, the Minister may by order establish air resource management areas throughout the Province for the purpose of Section 12.

12 Directives, programs, committees, regulations and provisions of the regulations made, issued, given, established or imposed under or in accordance with this Act may

(a) be general in their application;

(b) have application within one or more air resource management areas or within other areas of the Province;

(c) have application differently within different air resource management areas or within other areas of the Province; and

(d) have application differently in relation to different persons, contaminants, gases, liquids, solids, matters or things or different classes of any of them or on any other basis.

13 (1) Subject to subsections (2) and (3), the Minister shall maintain, in the form considered suitable by the Minister,

(a) a register of all applications for a registration, permit or approval under this Act or the regulations and such other information in relation to them as the Minister considers appropriate;

(b) a register of all holders of a registration, permit or approval, including a copy of the registrations, permits and approvals and any terms and conditions imposed in relation to them, and indicating all administrative penalties paid by, and all convictions of, the holders under this Act, the regulations or any other similar legislation or the regulations under it, along with a description of the offences and penalties to which the administrative penalties or convictions relate;

(c) a register of all administrative penalties paid by persons and all convictions of persons under this Act, the regulations or any other similar legislation or the regulations under it, including a description of the penalties and offences to which the administrative penalties or convictions relate;

(d) a register of all orders made by the Minister under subsection 18(1) and such other information in relation to them as the Minister considers appropriate;

(e) a register of all orders made by the Minister under Sections 8, 9 and 11; and

(f) a register of all agreements entered into by the Minister under Section 14.

(2) The Minister may withhold from a register any documentation or other information that is, in the opinion of the Minister, confidential.

(3) The Minister may remove from a register

(a) applications referred to in clause (1)(a) that have been withdrawn, refused or granted or are inactive;

(b) the documentation and other information kept under clause (1)(b) or (c) in relation to administrative penalties paid, or convictions that occurred, more than five years previously; and

(c) orders referred to in clause (1)(d) that have been revoked, or respecting which the Minister has delivered a written notice under clause 18(11)(a).

(4) Registers must be available for viewing by the public at the Minister's office and at every regional office of the Department of Environment during normal business hours and may be made available to the public on the Internet.

(5) Where this Section is inconsistent with or in conflict with the Freedom of Information and Protection of Privacy Act, this Section prevails.

14 (1) The Minister may, with the approval of the Governor in Council, enter into agreements with one or more of the following:

(a) the Government of Canada;

(b) another province of Canada;

(d) any person.

(2) An agreement entered into under subsection (1) must carry out the intent of this Act.

(3) The Minister shall file all agreements entered into under subsection (1) in a register.

15 (1) The Minister may appoint persons to intergovernmental committees, air resource management committees or other advisory committees

(a) to make recommendations to the Minister concerning proposals, policies and programs having a connection with this Act or the regulations;

(b) to co-ordinate or implement programs aimed at meeting objectives established under this Act;

(c) to receive comment from the public, including, where the committee considers it appropriate, the holding of public meetings, in relation to the proposed issuance, amendment or renewal of a registration, permit or approval, the establishment or amendment of objectives or any other matter coming within this Act;

(d) to share among its members information respecting the air;

(e) to develop methods to avoid and resolve conflicts and problems concerning the air;

(f) to review the content and operation of this Act and the regulations and recommend to the Minister any amendments that, in the opinion of the committee, would increase their effectiveness;

(g) at the request of the Minister, to investigate, report to the Minister and advise the Minister concerning any other matter coming within this Act; and

(h) to perform such other duties as are established by regulation.

(2) To carry out its duties, a committee may make its own rules of procedure.

(3) A committee may sit when and if it considers it necessary to receive submissions from any person concerning any matter coming within this Act.

16 (1) Subject to subsections (2) and (3), the Minister may, in the Minister's discretion, issue, amend, transfer, suspend, cancel, renew and reinstate registrations, permits and approvals in accordance with the regulations.

(2) When considering the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of a registration, permit or approval, the Minister may, in the Minister's discretion, require the obtaining of insurance coverage or the posting of security and may impose such other terms and conditions as the Minister considers appropriate and, where regulations have been made respecting the imposition of such terms and conditions, shall impose them in accordance with the regulations.

(3) When considering the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of a registration, permit or approval, the Minister shall consider

(a) the purpose of this Act and the regulations, as set out in Section 3;

(b) the objectives established under subsection 9(1); and

(4) The Minister may, at any time, require any person to provide to the Minister any pollution prevention plans, risk assessment or other information, in the form and manner required by the Minister, that the Minister considers necessary in considering the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of a registration, permit or approval and, where regulations have been made respecting such a requirement, shall impose the requirement in accordance with the regulations.

17 (1) In this Section, "Class 1 approval" means a Class 1 approval issued under the regulations.

(2) The Minister shall give notice, or require an applicant to give notice, to the public, in accordance with the regulations, of applications for the issuance of Class 1 approvals and of any other approvals or other matters designated for the purposes of this subsection in the regulations.

(3) The Minister shall give notice, or require an applicant to give notice, to the public in accordance with the regulations at least 180 days before the expiry date of Class 1 approvals, and of any other approvals designated for the purpose of this subsection in the regulations, other than any approvals that the Minister has reason to believe will not be renewed.

(4) Subject to subsection (5), the Minister shall give notice, or require an applicant to give notice, to the public in accordance with the regulations, of any proposed amendment to a Class 1 approval and of any other approvals designated for the purpose of this subsection in the regulations, whether the proposal is initiated by the Minister or by another person.

(5) Subsection (4) applies to a proposed amendment to a Class 1 approval only if the proposed amendment would authorize the holder of the approval to

(a) increase

(ii) the rate of release of a contaminant into the air, or

(iii) the concentration of a contaminant in the air;

(b) release into the air a contaminant that was not previously released into the air by the holder; or

(c) do any other thing that, in the opinion of the Minister, would result in an increase in the concentration of a contaminant in the air or the release into the air of a contaminant that was not previously released into the air by the holder.

(6) The Minister shall hold such consultations in relation to matters referred to in subsection (2), (3) or (4) as are required under the regulations.

18 (1) Subject to this Section, the Minister may, in the circumstances described in subsection (2), make 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 the air;

(b) to eliminate the release of any contaminant into the air

(ii) for a specified period, or

(iii) in the circumstances set out in the order;

(d) to alter the procedures to be followed in the control, reduction or elimination of the release of any contaminant into the air;

(e) to install, replace or alter any equipment or thing designed to control, reduce or eliminate the release of any contaminant into the air;

(f) to conduct any investigation, make any tests and prepare and submit to the Minister any reports required by the Minister;

(g) to carry out clean-up, site rehabilitation, restoration of land, premises or personal property or other remedial action.

(2) The Minister may make 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 air at a rate exceeding the maximum rate established by regulation for the release of that contaminant;

(b) the contaminant has been, is being or may be released into the air in a manner prohibited under this Act or the regulations;

(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

(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.

(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;

(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.

(4) The Minister shall not make, amend or revoke an order under this Act or the regulations without first taking into consideration

(a) the purpose of this Act and the regulations, as set out in Section 3; and

(b) the objectives established under subsection 9(1).

(5) Where, 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).

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

(7) Except in the case of an emergency situation, an order must be in writing and must include reasons for the order.

(8) The Minister may, in writing, amend or revoke an order or make a further order in relation to the same release.

(9) 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.

(10) 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.

(11) 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.

(12) 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 from the requirement that the person comply with the order.

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

19 (1) Where a contaminant has been released into the air 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.

(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.

(3) The Minister may take action under subsection (1), whether or not an order has previously been made 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

(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

(ii) has not dealt or, where 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.

(4) Actions taken by the Minister under subsection (1) may include those set out in subsection 18(1).

20 (1) Where, 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.

(2) Where 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.

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.

(2) The Minister and all persons acting on behalf of the Minister shall, forthwith after taking action under Section 19 or 20 on, over or under land that is not owned by Her Majesty 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.

22 The making of an order, the taking of action by the Minister under Section 19 or 20 or the restoring of land, premises or personal property under Section 21

(a) does not 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) must not 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) must not be interpreted or deemed by any person or court to affect the liability in relation to the release of a contaminant of any person to whom an order is directed under this Act or the regulations; and

(d) must not be interpreted or deemed by any person or court to affect the liability of any person for any costs related to the release of a contaminant.

23 (1) Upon written demand being made by the Minister, any costs incurred by the Minister while taking action under Section 19 or 20, including the costs of all persons, materials and equipment employed and the costs of ameliorating any adverse effect of the release of a contaminant, of restoring any land, premises or personal property under subsection 19(2) or of repairing any other damage whatsoever done when taking the action, are the liability of and shall be 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, indirectly or directly, the release to which the matter relates.

(2) Where 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.

(3) 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 air, no defence lies and the quantum of costs awarded is not 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;

(d) repairing any other damage whatsoever done in those circumstances.

(4) 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 in no way abrogates 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 19(1) or to pay the Minister as required under subsection (1) or (2).

24 (1) Where

(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 air; and

(b) the Minister has made a written demand under subsection 23(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 the Province.

(2) No person may 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 clause (1)(a) in relation to that release, unless that person first delivers to the Minister written notice of the action to be taken.

(3) Within sixty days after receipt of a notice under subsection (2), the Minister may deliver written directions to the person who delivered the notice, requiring the person to amend pleadings where applicable and to take such further steps as are set out in the directions to claim and seek to recover any costs incurred by the Minister that remain unrecovered.

(4) Where the Minister has incurred costs described in clause (1)(a) and the Minister has made a written demand under subsection 23(1) where applicable, the Minister may issue a certificate setting out the amount of the unrecovered costs and the certificate must be delivered to all persons named in the certificate.

(5) Fifteen days after the day upon which a certificate issued under subsection (4) has been delivered, the Minister may file the certificate in the Supreme Court of Nova Scotia, and the certificate must be entered and recorded in the Court, and when it is entered and recorded, the certificate 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.

(6) A person named in a certificate issued under subsection (4) may appeal, in the manner prescribed by regulation, both the person's liability for the unrecovered costs and the amount of the unrecovered costs set out in the certificate and, where an appeal is instituted under this subsection, the Minister may not file the certificate in accordance with subsection (5) until after the appeal has been determined in accordance with the regulations.

(7) Where any person has commenced or has carriage of an action that includes a claim on behalf of Her Majesty in right of the Province in relation to the release of a contaminant, the Minister may take the steps necessary to assume carriage of the action in order to recover any unrecovered costs described in clause (1)(a).

(8) Where the Minister has incurred costs described in clause (1)(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 19 or 20 or subsection 21(2).

(9) The Minister may enter into an agreement to share the proceeds of an insurance policy to which the Minister is entitled under subsection (8) on a pro rata basis or such other basis as the Minister considers appropriate with other persons who have incurred any costs in the circumstances described in subsection (8), and the insurer shall pay the proceeds in accordance with the agreement.

(10) Where an insurer has made a payment under subsection (8) or (9), the payment is deemed to be a payment with respect to loss or damage resulting from the event for which coverage was in effect.

(11) Nothing in this Section is deemed to require an insurer to pay the Minister or any other person a sum or sums totalling in excess of the coverage limits of an insurance policy.

(12) In any claim or action under this Section, a certificate purporting to be signed by the Minister setting out the amount of the unrecovered costs described in clause (1)(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.

(13) Section 23 and 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 air;

(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.

25 (1) The Minister may designate persons as inspectors for the purpose of this Act.

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

(a) enter and inspect any area, land, place or premises

(ii) in, into or from which the inspector reasonably believes a contaminant was or is being or will be released, or

(iii) that the inspector reasonably believes otherwise did pose, poses or could pose a threat to the quality or constitution of the air;

(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 or otherwise did pose, poses or could pose a threat to the quality or constitution of air and take samples of discharges, deposits, effluents or emissions;

(d) enter any area, land, place or premises if the inspector reasonably believes that air has been, is being or will be used or contaminated contrary to the provisions of this Act or the regulations; and

(e) inspect any structure, installation, operation, plant or machinery, and inspect and test any process of production or manufacture, to determine whether air has been, is being or will be used or contaminated contrary to this Act or the regulations.

(3) Where the Minister has reasonable and probable grounds to believe that a contaminant has been, is being or may be released into the air and that the release may adversely affect the air or the environment, an inspector, at any time and upon presentation of proof of identification on a form provided by the Minister, and any other agent of the Minister who is accompanying an inspector, may exercise any of the powers provided under subsection (2) in order to identify the extent of any such release and assess any potential adverse effect that it may have had or may have on the environment.

(4) An inspector shall not enter a private dwelling for the purpose of this Section unless the inspector

(a) is acting in an emergency situation;

(b) has the consent of a person who appears to be an adult and an occupant of the dwelling; or

(5) An inspector may detain for the purposes of evidence

(a) any object, substance or material or a sample of any object, substance or material; and

(b) any records, other documentation or other information regardless of physical form or characteristics, and such software, hardware or other equipment necessary to access them as the inspector may reasonably require,

that the inspector discovers while acting under this Section and believes, on reasonable grounds, may afford evidence of a violation of or a failure to comply with this Act or the regulations.

26 The owner or person in charge of any area, land, place or premises and any employees or agents of the owner or person in charge shall give all reasonable assistance to an inspector and an agent of the Minister referred to in subsection 25(3) to enable the inspector or agent of the Minister to carry out the inspector's or agent's duties under this Act, and shall furnish the inspector with such records, other documentation and other information and such software, hardware or other equipment necessary to access them as the inspector may reasonably require.

27 No person shall obstruct or hinder an inspector, or an agent of the Minister referred to in subsection 25(3), in the carrying out of the inspector's or agent's duties under this Act.

28 No person shall knowingly make a false or misleading statement, either orally or in writing, to inspectors or other persons engaged in carrying out their duties under this Act.

29 The Minister may designate persons as analysts for the purposes of this Act and the regulations.

30 (1) Any two or more individuals who are residents of the Province, who are at least 19 years of age and who are of the opinion that an offence has been committed under this Act or the regulations, or that a person has not complied with a directive, may apply to the Minister on a form provided by the Minister for an investigation of the alleged offence.

(2) An application for an investigation must be accompanied by the solemn affirmation or declaration of the applicants

(a) stating the names and addresses of the applicants;

(b) stating the nature of the alleged offence or non-compliance, including the provision number of any Act or regulation allegedly breached, the particulars of the directive not complied with and the name of each person alleged to have been involved in the offence or non-compliance;

(d) stating the name, street address and mailing address in the Province and telephone number of a person designated to accept service on behalf of the applicants.

31 (1) In this Section, "person designated for service" means a person designated to accept service on behalf of applicants under clause 30(2)(d).

(2) Upon receiving an application under subsection 30(1), the Minister shall deliver a written acknowledgement of receipt to the person designated for service and shall investigate all matters that the Minister considers necessary in order to determine the facts in relation to the alleged offence or non-compliance.

(3) The Minister may at any time discontinue an investigation if of the opinion that the alleged offence or non-compliance does not warrant further investigation.

(4) The Minister, where discontinuing an investigation, shall

(a) prepare a written report, describing the information obtained during the investigation and stating the reasons for the discontinuance; and

(b) deliver a copy of the report in a timely manner to the person designated for service and to any person whose conduct was investigated.

(5) Within 90 days after receiving an application under subsection 30(1), the Minister shall deliver to the person designated for service a written report on the progress of any continuing investigation and on any action the Minister has taken or proposes to take in relation to it.

(6) At any stage of an investigation, the Minister

(a) may, in addition to or instead of continuing the investigation, deliver to the Attorney General any records, returns, other documentation or information or other evidence in relation to the investigation that is in the possession or control of the Minister, for consideration as to whether or not an offence has been, is being or may be committed under this Act or the regulations and for such action as the Attorney General may wish to take; and

(b) shall, where taking action under clause (a), deliver to the person designated for service and to any person whose conduct was investigated, a notice that the action has been taken.

(7) Where, within two years after the occurrence of the alleged offence or non-compliance, an investigation of the matter under this Section has not been discontinued and, where no action has been taken by the Minister under clause (6)(a) in relation to it, the Minister shall

(a) prepare a written report on the progress of the investigation and on any action the Minister has taken or proposes to take; and

(b) deliver a copy of the report in a timely fashion to the person designated for service and to any person whose conduct was investigated.

32 (1) A person who knows of the occurrence or reasonable likelihood of a release of a contaminant into the air in violation of this Act or the regulations, or knows of a failure or refusal to comply with a directive, and who is not required to report the matter under this Act or the regulations, may report any information respecting the matter to an inspector.

(2) A person making a report under subsection (1) may request that the person's identity, and any information that could reasonably be expected to reveal the identity, not be released.

(3) No person shall release or cause to be released the identity, or any information that could reasonably be expected to reveal the identity, of a person who has made a request under subsection (2), unless the person who made the request has authorized the release in writing.

33 (1) In this Section,

(a) "acknowledgement form" means an acknowledgement form delivered to the Director in accordance with clause (4)(b);

(b) "Director" means the person designated by the Minister to manage administrative penalties under this Section.

(2) The Minister shall designate a person to act as the Director for the purpose of this Section.

(3) The Director, where of the opinion on reasonable and probable grounds that a person has violated or failed to comply with a provision of this Act or the regulations that is prescribed by regulation for the purposes of this Section, may, within one year after the date of the commission of the alleged offence, in the Director's discretion and in accordance with subsection (4) and the regulations, deliver to the person a written notice on a form provided by the Director, permitting the person to pay an administrative penalty in relation to the alleged offence.

(4) A notice delivered to a person under subsection (3) must indicate that the person may deliver to the Director or a person designated by the Director, on or before the deadline set out in the notice,

(a) payment of an administrative penalty in the total amount set out in the notice, calculated in accordance with the regulations for each day or part of a day during which the offence continues; and

(b) an acknowledgement form provided by the Director, completed and signed by the person and witnessed, in which is set out the provision number, the date of the alleged offence, the total amount of the penalty, an acknowledgement by the person that the person did violate or fail to comply with the provision and such other information as the Director requires.

(5) In case of an individual, the total amount of an administrative penalty set out in a notice under clause (4)(a) must not exceed $5,000.

(6) The Director shall not deliver a notice to a person under subsection (3) in relation to an alleged offence if the person has been charged under this Act or the regulations with the same offence.

(7) A person to whom a notice has been delivered under subsection (3) in relation to an alleged offence cannot be charged under this Act or the regulations with the same offence before the deadline set out in the notice has passed.

(8) Where a person pays an administrative penalty before the deadline set out in the notice and otherwise in accordance with this Section in relation to an alleged offence,

(a) the person cannot be charged under this Act or the regulations with the same offence; and

(b) the payment constitutes a full satisfaction, release and discharge of all fines and imprisonments that could have been imposed if the person had been convicted of the alleged offence in a court.

(9) Completed and signed acknowledgement forms may be kept in a register and may be made available to the public.

(10) Where 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 acknowledgement form completed and signed by the person is, without limiting its admissibility, admissible in court in relation to sentencing.

(11) Where a notice permitting payment of an administrative penalty is delivered to a person under subsection (3) and the person fails to pay all of the administrative penalty in accordance with the notice on or before the deadline set out in the notice, the Director shall not accept payment after the deadline and the person may be charged with the offence to which the notice relates.

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

(13) No person may pay an administrative penalty in relation to an alleged offence if the person has paid an administrative penalty three times previously in relation to offences that, in the Director's opinion, were the same as or substantially similar to the alleged offence.

34 (1) Subject to subsection (3), a person who violates any provision of this Act or the regulations or fails to comply with an order made under this Act or the regulations or with a term or condition of a registration, permit or approval issued under this Act or the regulations commits an offence and is liable, on summary conviction,

(a) in the case of an individual, to a fine of not less than $500 and not more than $50,000; and

(b) in the case of a person other than an individual, to a fine of not less than $50,000 and not more than $1,000,000.

(2) Where a violation of or a failure to comply with a provision of this Act or the regulations continues for more than one day, the fine payable is the product of

(a) the fine imposed under subsection (1); and

(b) the number of days on which the violation or failure continues.

(3) Where a person commits an offence under this Act or the regulations that is also an offence under the Environment Act or the regulations under it, the person, where charged, must be charged under the Environment Act or the regulations under it.

35 (1) Where, in the opinion of a judge, a person charged with an offence under this Act or the regulations has committed the offence for financial advantage or to avoid the financial burden of compliance with this Act or the regulations, the judge may, notwithstanding any maximum fine set for that offence under subsection 34(1) or (2),

(a) where the offence was committed for financial advantage, impose such fine as will ensure that no financial advantage is gained from the commission of the offence; or

(b) where the offence was committed to avoid the financial burden of compliance with this Act or the regulations, impose such fine as is appropriate in the circumstances.

(2) A judge shall not impose a fine under subsection (1) unless the prosecutor has, before the time set for the person charged to appear in court, notified the person that a fine under subsection (1) will be sought if the person is convicted.

36 (1) When imposing a penalty against an offender convicted of an offence under this Act or the regulations, a judge may, after considering the nature of the offence and the circumstances surrounding its commission, in addition to any other penalty that may be imposed, make an order

(a) prohibiting the offender from doing anything that may result in the continuation or repetition of the offence;

(b) directing the offender to take any action the court considers appropriate to ameliorate any adverse effect to the environment that has resulted, is resulting or may result from the act or omission that constituted the offence;

(c) directing the offender to publish, in accordance with the regulations and at the offender's expense, the facts relating to the conviction;

(d) directing the offender to notify any person aggrieved or affected by the offender's act or omission, of the facts relating to the conviction, in accordance with the regulations and at the offender's expense;

(e) directing the offender to post a bond or pay money into court in an amount that will ensure compliance with any order made under this Section;

(f) directing the offender to submit to the Minister, on application to the court by the Minister within three years after the date of conviction, any information with respect to the conduct of the offender that the court considers appropriate in the circumstances;

(g) directing the offender to compensate Her Majesty in right of the Province, in whole or in part, for the costs of any preventive or ameliorative action that was carried out or caused to be carried out by the Minister or Her Majesty in right of the Province and was made necessary by the act or omission that constituted the offence;

(h) directing the offender to perform community service; and

(i) requiring the offender to comply with any other conditions the judge considers appropriate in the circumstances for securing the offender's good conduct and for preventing the offender from repeating the same offence or committing other offences.

(2) Where an offender is directed to publish the facts relating to a conviction under clause (1)(c) and fails or refuses to comply with the order, the Minister may publish the facts as required in the order.

(3) Where the Minister incurs costs in relation to publishing facts under subsection (2), the costs constitute a debt due by the offender to Her Majesty in right of the Province and subsection 24(9) applies to the costs with the necessary modifications.

(4) An order made under subsection (1) takes effect on the day on which it is made or, where another day is specified in the order, on the day specified.

(5) The judge shall specify in an order made under subsection (1) the period of time during which it is in effect, which period must not exceed three years.

37 Every person other than an individual who commits an offence under this Act or the regulations commits an absolute liability offence.

38 Subject to subsection 33(3), a proceeding with respect to an offence under this Act or the regulations may be instituted at any time within two years after the time when the subject-matter of the proceeding arose.

39 A provision of this Act or the regulations or a direction, determination, order, notice, registration, permit, approval, term, condition or requirement given, made, issued, served or imposed by the Minister or the Governor in Council that is contravened may, in addition to any other remedy and to any penalty imposed by law, be restrained in an action at the instance of the Minister.

40 No civil remedy for an act or omission is suspended or affected by reason that the act or omission constitutes an offence under this Act or the regulations.

41 (1) In a prosecution with respect to an offence under this Act or the regulations, an original or a certified copy of a registration, permit, approval, order, notice, certificate, plan or other document purporting to be signed by the Minister, or a statement purporting to be signed by the Minister that a person does not hold a registration, permit or approval under this Act or the regulations with respect to an activity designated in the statement, must be

(a) received in evidence by any court in the Province without proof of the appointment, authority or signature of the person purporting to have signed it or the person purporting to have certified the copy;

(b) in the absence of evidence to the contrary, proof of the facts stated in the document, copy or statement; and

(c) where the name of the person referred to in the document, copy or statement is that of the accused, in the absence of evidence to the contrary, proof that the person named in the document, copy or statement is the accused.

(2) A document, copy or statement referred to in subsection (1) must not be received in evidence unless the party intending to produce it has, before the trial or other proceeding, given to the person against whom it is to be produced reasonable notice of the party's intention, together with a copy of the document, copy or statement.

(3) Subject to subsection 42(2), a person against whom a document, copy or statement referred to in subsection (1) is produced may, with leave of the court, require the attendance of a person designated by the Minister for purposes of cross-examination.

42 (1) Subject to this Section, a certificate of an analyst stating that the analyst has analyzed or examined a sample submitted to the analyst by an inspector and stating the result of the analyst's analysis or examination is admissible in evidence in a prosecution with respect to an offence under this Act or the regulations and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the appointment, authority or signature of the person purporting to have signed the certificate.

(2) The party against whom a certificate of an analyst is produced under subsection (1) may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.

(3) A certificate may not be received in evidence under subsection (1) unless the party intending to produce it has given reasonable notice of the intention, together with a copy of the certificate, to the party against whom it is intended to be produced.

43 (1) An order, notice or other document that is to be given to or served upon a person under this Act or the regulations is sufficiently given or served if

(a) it is served in the manner in which personal service may be made under the Civil Procedure Rules;

(b) it is mailed prepaid registered mail to the last address of that person reported to the Minister under this Act or the regulations; or

(2) Service in accordance with the Civil Procedure Rules is deemed to be effected, where applicable, in accordance with the Civil Procedure Rules.

(3) Service by prepaid registered mail under clause (1)(b) is deemed to be effected five days after the date of mailing.

44 A person whose registration, permit or approval has been suspended or cancelled or whose application for a registration, permit or approval or for the transfer, amendment, renewal or reinstatement of a registration, permit or approval has been refused may appeal the suspension, cancellation or refusal in accordance with the regulations.

45 An applicant, a person who takes any proceeding, the holder of a registration, permit or approval and any other person so required by regulation shall pay any fees established by regulation in the manner established by regulation.

46 (1) Subject to subsection (2), the Governor in Council, where of the opinion that provisions or portions of provisions of this Act or the regulations are equivalent to provisions or portions of provisions of an Act of the Parliament of Canada or the regulations made under such an Act, may declare by order in council that the provisions or portions of provisions of this Act or the regulations do not apply in the Province.

(2) Before making an order in council under subsection (1), the Governor in Council shall

(a) give notice to the public and to such other persons as the Governor in Council considers appropriate of the proposed declaration, in accordance with subsection (3);

(b) afford the public and other persons an opportunity to comment to the Governor in Council respecting the proposed declaration, during a period of at least 90 days following the giving of public notice; and

(3) A public notice given under subsection (2) must contain the proposed declaration and such other information as the Governor in Council considers appropriate, must be published in The Royal Gazette, may be published on the Internet and must be disseminated in such other manner as the Governor in Council considers appropriate.

47 The Regulations Act does not apply to orders made under Section 8, subsection 9(1) or (4), Section 11 or subsection 46(1).

48 (1) The Governor in Council may make regulations

(a) prescribing any matter to be waste;

(b) respecting the manufacture, distribution, sale, supply, offering to sell or supply, packaging, labelling, use, storage, collection, transportation, recycling, processing, disposal, removal or handling of any class of, or any, contaminants, gases, liquids or solids that have been, are being or may be released into the air;

(d) respecting methods, standards or tests for determining the amount, concentration, level or presence of any contaminant, including an odour, or any class of contaminant or odour, in the air;

(e) respecting the composition of air resource management committees and other advisory committees, the qualifications of members, the manner and terms of appointment and the removal from office of members and officers, the terms and conditions applying to members and former members, quorums for meetings, duties of committees and members, the payment of compensation and reimbursement to members, conflict of interest of members and former members, the engagement of persons with special knowledge to advise committees, reporting to the Minister respecting the activities of committees and any other matter in relation to the creation and functioning of such committees;

(f) respecting the establishment of any areas for the purpose of clause 12(b) or (c);

(g) respecting the application for and the issuance, amendment, transfer, suspension, cancellation, renewal and reinstatement of registrations, permits and approvals, including establishing deadlines in relation to them;

(h) establishing, or giving the Minister the discretion to determine, the grounds upon which applications for the issuance, amendment, transfer, renewal or reinstatement of registrations, permits and approvals may be refused or upon which registrations, permits and approvals may be suspended or cancelled;

(i) establishing, or giving the Minister the discretion to impose, terms and conditions upon which registrations, permits and approvals may be issued, amended, transferred, held, renewed and reinstated;

(j) respecting insurance coverage or the posting of security as a condition of obtaining, continuing to hold or having amended, transferred, renewed or reinstated, a registration, permit or approval, including the forfeiture of the security and the disposition of the proceeds of insurance or security;

(k) respecting the giving of public notice and the holding of a public consultation process respecting registrations, permits, approvals and other matters coming within this Act and the regulations, including respecting the release of information, the timing and format of notice, public comment and public meetings and the recovery by the Minister of any costs, in relation to those matters;

(l) respecting the responsibility for and the payment and recovery of any costs incurred by the Minister or any other person, including the costs incurred in employing persons, materials and equipment and in repairing any damage done in order to operate, rectify, control, prevent, reduce, eliminate, remove, modify, clean up, rehabilitate, restore, ameliorate, assess or investigate any matter or thing coming within this Act or the regulations;

(m) respecting the procedure for the collection of costs incurred by the Minister while acting under this Act or the regulations, including the sharing of proceeds where the amount available or the amount collected is not sufficient to satisfy all claims;

(n) respecting the carriage, conduct and settlement of claims and actions relating to matters coming within this Act or the regulations;

(o) respecting the duties and powers of inspectors and analysts, the taking of samples and the analysis of substances for the purposes of this Act and the regulations;

(p) respecting the offences in relation to which administrative penalties may be payable and the calculation of the amounts of such penalties, which may vary according to whether 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;

(q) respecting the categorization of offences by the degree of seriousness for the purpose of clause (p), 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;

(r) respecting the procedures to be followed in imposing and paying an administrative penalty and all other matters in relation to such penalties;

(s) respecting the requirement for, subject and content of, timing of, publishing or service of or any other matter in relation to any notice, order or other document that is required to be or may be given or served under this Act or the regulations;

(t) respecting fees and the manner of payment of fees payable in relation to anything done or required to be done under this Act or the regulations;

(u) respecting forms for the purpose of this Act and the regulations;

(v) respecting appeals of orders, designations or decisions made under this Act or the regulations;

(w) respecting the manufacture, sale or supply, offering to sell or supply or the use of mobile sources of contaminants and other consumer products that release or may release a contaminant into the air, including the establishment and enforcement of objectives, guidelines, standards and requirements in relation to them, the prohibition of fuels, the establishment of standards for fuels, requirements in relation to pollution control equipment, the establishment of emission limits and inspection processes and any other matter in relation to regulating such consumer products;

(x) respecting the construction, alteration, modification, operation, location, maintenance, repair, monitoring, testing, inspection, discharge, removal, cessation, disposal or other aspect of any activity, real or personal property, object or thing, whether natural or artificial, that could release a contaminant into the air;

(y) respecting the keeping of registers, records, other documentation and other information, regardless of form or content and the inspection, copying and reporting of such documentation and other information, by or to the Minister and by other persons or classes of persons to whom this Act applies;

(z) respecting the confidentiality of documents and other information kept, filed, submitted, disclosed or reported under this Act and the regulations, the period during which the documents and information are to be confidential and the persons to whom the documents and information may be disclosed;

(za) prescribing any thing required by this Act to be prescribed;

(zb) defining any word or expression used in but not defined in this Act for the purpose of this Act, the regulations or both;

(zc) generally for the better administration of this Act;

(zd) respecting any matter or thing the Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.

49 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.

This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2019 Crown in right of Nova Scotia. Created September 25, 2019. Send comments to legc.office@novascotia.ca.

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BILL NO. 153

(as introduced)

Clean Air Act

An Act Respecting Clean Air

Renseignements