2003 Legislative Session: 4th Session, 37th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
HONOURABLE JOYCE MURRAY
MINISTER OF WATER, LAND
AND AIR PROTECTION
Part 7 -- Powers in Relation to Managing the Environment
Division 1 -- Assessment, Prevention and Abatement
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.
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.
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.
80 (1) In this section:
"spill" means the introduction of a substance into the environment, whether intentional or unintentional, otherwise than as authorized under this Act;
"spill response actions" means actions carried out by the government under subsection (2).
(2) If an officer considers that
(a) a spill that has occurred may pose a hazard to health or the environment, or that there is an imminent threat of a spill that may pose such a hazard, and
(b) action is necessary to address the hazard or threat,
the government may carry out actions to assess, monitor, prevent, stabilize, contain, remove, clean up, evacuate persons from the area of or otherwise address the perceived hazard or threat.
(3) Spill response actions may be carried out anywhere and, without limiting this, a person acting on behalf of the government may enter on private property for the purpose of carrying out those actions.
(4) If the government carries out spill response actions, a director may,
(a) subject to the regulations, issue a certificate
(i) setting out the reasonable costs of the spill response actions,
(ii) identifying one or more persons who had possession, charge or control of the substance referred to in subsection (2), and
(iii) specifying all or part of those costs as payable by one or more of the persons identified in the certificate, and
(b) by serving notice of the certificate on a person identified in it, require the person to pay all or part of the costs as specified in the certificate.
(5) Subject to the regulations, a certificate under subsection (4)
(a) may apportion the costs to be paid among the persons who had possession, charge or control of the substance referred to in subsection (2) and specify the amount payable by each person, and
(b) may specify that 2 or more of the persons identified in the certificate are jointly and separately liable to pay all or a portion of the costs.
(6) If notice of a certificate is served under subsection (4) (b),
(a) the amount certified as being payable by a person is a debt due to the government by the person, and
(b) on filing in the Supreme Court, has the same effect and is subject to the same proceedings as a judgment of the court for the recovery of a debt in the amount stated in the certificate against the person named in it.
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.
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.
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.
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.
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.
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.
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 Commercial 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.
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
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.
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.
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, and
(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).
Division 3 -- Regulations for 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) respecting requirements and procedures for the reporting of matters referred to in section 79 (5) [spill prevention and reporting];
(b) in relation to section 80 [spill response actions],
(i) respecting the determination of reasonable costs of spill response actions under that section, and
(ii) respecting the apportionment of reasonable costs of spill response actions among persons who may be liable to pay those costs;
(c) respecting the publication required under section 91 [publication obligations].
(2) Section 139 [regulations -- general rules] applies for the purpose of making regulations under this section.
Link to Part 8 -- Environmental Appeal Board
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