First Session, 48th General Assembly
65 Elizabeth II, 2016
AN ACT TO REGULATE GREENHOUSE GAS EMISSIONS FROM INDUSTRIAL FACILITIES IN THE PROVINCE
Received and Read the First Time.................................................................................................
HONOURABLE PERRY TRIMPER
Minister of Environment and Conservation
Ordered to be printed by the Honourable House of Assembly
This Bill would regulate greenhouse gas emissions from industrial facilities in the province.
AN ACT TO REGULATE GREENHOUSE GAS EMISSIONS FROM INDUSTRIAL FACILITIES IN THE PROVINCE
1. Short title
3. Labrador Inuit rights
5. Greenhouse gas emissions reduction target
7. Payments from fund
8. Advisory council
10. Mandatory reporting
11. Calculation of greenhouse gas emissions
12. Intergovernmental agreements
13. Application for investigation
15. Powers of inspectors re: compliance
16. Contravention of Act suspected
17. Disposition of documents
19. Administrative penalties
20. Ministerial order
21. Amendment or revocation of order
22. Effects of order
24. Joint and individual liability
25. Protection from liability
26. Fees and forms
27. Statutory review
29. Ministerial regulations
30. Lieutenant-Governor in Council regulations
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the Management of Greenhouse Gas Act.
2. In this Act
(a) "carbon dioxide equivalent" means the mass of carbon dioxide that would produce the same global warming impact as a given mass of another greenhouse gas, as determined in accordance with the regulations;
(b) "electricity generation" means the operation of electric utilities that generate, transmit, control and distribute electric power;
(c) "facility" means
(i) a plant or structure where greenhouse gas is emitted, and
(ii) a site or 2 or more contiguous or adjacent sites that are operated and function in an integrated fashion where greenhouse gas is emitted,
including all buildings, equipment, machinery and vehicles that emit greenhouse gas;
(d) "fund" means the
(e) "fund credit" means a credit obtained by an industrial facility by paying money into the fund;
(f) "greenhouse gas" means
(i) carbon dioxide (CO2),
(ii) methane (CH4),
(iii) nitrous oxide (N20),
(iv) categories of hydrofluorocarbons (HFCs) prescribed in the regulations,
(v) categories of perfluorocarbons (PFCs) prescribed in the regulations,
(vi) sulphur hexafluoride (SF6), and
(vii) other gases prescribed in the regulations;
(g) "greenhouse gas reduction credit" means
(i) a fund credit,
(ii) a performance credit,
(iii) an offset credit, and
(iv) another credit prescribed in the regulations;
(h) "industrial facility" means a facility in the province engaged in
(i) manufacturing and processing,
(ii) mining, quarrying and oil and gas extraction, or
(iii) electricity generation;
(i) "manufacturing and processing" means the chemical, mechanical or physical transformation of materials or substances into finished or semi-finished products;
(j) "mining, quarrying and oil and gas extraction" means the extraction of minerals, solid materials, liquids and gases;
(k) "minister" means the minister appointed under the Executive Council Act to administer this Act;
(l) "offset credit" means a credit earned by an industrial facility for a prescribed activity that
(i) reduces the emission of greenhouse gas in a manner prescribed in the regulations, or
(ii) sequesters greenhouse gases in a manner prescribed in the regulations;
(m) "operator" means the person who is responsible for an industrial facility's operations as of December 31 of a year or where an industrial facility closed during a year the person who last operated the industrial facility in that year; and
(n) "performance credit" means a credit earned by an industrial facility for reducing greenhouse gas emissions by more than its greenhouse gas emission reduction target referred to in section 5.
Labrador Inuit rights
3. This Act and the regulations made under this Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act and, where a provision of this Act or the regulations made under this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act, the provision, term or condition of the Labrador Inuit Land Claims Agreement Act shall have precedence over the provision of this Act or a regulation made under this Act.
4. (1) Except as provided in section 7, this Act applies to an industrial facility that emits 15,000 tonnes of carbon dioxide equivalent or more of greenhouse gases in any year after the coming into force of this Act.
(2) Notwithstanding subsection (1), where an industrial facility emits less than 15,000 tonnes of carbon dioxide equivalent in 3 consecutive years, the owner or operator of the industrial facility may apply to the minister for an exemption from this Act.
(3) An exemption granted under subsection (2) expires if the industrial facility emits 15,000 tonnes of carbon dioxide equivalent in a year after the exemption is granted.
(4) This Act does not apply to the Holyrood Generating Station unless otherwise prescribed in the regulations.
Greenhouse gas emissions reduction target
5. (1) The Lieutenant-Governor in Council may make regulations establishing annual greenhouse gas emissions reduction targets for industrial facilities that emit 25,000 tonnes of carbon dioxide equivalent or more of greenhouse gases in any year since the coming into force of this Act.
(2) An industrial facility shall achieve the prescribed annual greenhouse gas emissions reduction target each year.
(3) An industrial facility may achieve the greenhouse gas emissions reduction target each year by doing one or both of the following:
(a) reducing greenhouse gas emissions at its industrial facility; or
(b) using one or more greenhouse gas reduction credits earned by it.
(4) The Lieutenant-Governor in Council may make regulations exempting an industrial facility from achieving its annual greenhouse gas emissions reduction target where the industrial facility emits less than 25,000 tonnes of carbon dioxide equivalent or more of greenhouse gases in 3 consecutive years and applies to the minister for an exemption.
6. (1) There
is established a fund called the
(2) There shall be deposited into the fund money received from
(a) the owners and operators of industrial facilities for the purchase of fund credits; and
(b) enforcement activities under this Act and the regulations.
(3) The fund shall be held in trust by the minister and administered in accordance with this Act and the regulations.
(4) The minister may invest all or part of the money in the fund in investments authorized under section 15 of the Financial Administration Act.
(5) The income earned by the fund accrues to and becomes part of the fund.
(6) Where money deposited into the fund remains in the fund 5 years after it was deposited, the advisory council shall make a recommendation to the minister regarding how the money should be used to achieve a verifiable reduction in greenhouse gas emissions.
(7) Costs associated with administering the fund shall be paid from the fund.
(8) Notwithstanding another Act, the money in the fund does not form part of the Consolidated Revenue Fund and the fund is not a division of the Consolidated Revenue Fund, but the money is the property of the Crown.
(9) The minister shall keep complete books of accounts in which shall be entered the amounts deposited and paid out of the fund and details relating to the fund.
(10) The auditor general shall audit the financial statements of the fund and attach to them a report in relation to those financial statements.
(11) The financial statements of the fund shall be signed by the minister and the officers or agents authorized to administer the fund.
(12) The minister may appoint officers, agents and other staff that may be necessary to administer and manage the fund for the purposes of the Act and the regulations.
Payments from fund
7. (1) Notwithstanding section 30 of the Financial Administration Act, the minister may authorize payments from the fund where
(a) an operator
(i) submits an application in a form set by the minister, and
(ii) provides proof satisfactory to the minister that
(A) the money will be used to achieve a verifiable reduction in greenhouse gas emissions at an industrial facility within a reasonable period of time, and
(B) the reduction referred to in clause A will be in addition to any greenhouse gas reductions the industrial facility is required to make to achieve its annual greenhouse gas emission reduction target; or
(b) the advisory council makes a recommendation under subsection 6(6) and the minister is satisfied that the recommendation will achieve a verifiable reduction in greenhouse gas.
(2) An industrial facility that emits less than 15,000 tonnes of carbon dioxide equivalent a year may apply for payment from the fund under subsection (1).
8. (1) The Lieutenant-Governor in Council shall appoint an advisory council to
(a) assess applications for payments from the fund; and
(b) provide recommendations to the minister regarding payments from the fund.
(2) The advisory council shall consist of a minimum of 5 members and a maximum of 7 members including the following:
(a) at least 2 people with expertise in the operation of the type of industrial facilities that operate in the province;
(b) at least 2 people with expertise in climate change and greenhouse gas emission reduction; and
(c) a deputy minister or an assistant deputy minister of a government department or a person holding an equivalent position in government.
(3) The Lieutenant-Governor in Council shall designate one of the members of the advisory council to be the chairperson.
(4) A majority of the members of the advisory council constitutes a quorum.
(5) The members of the advisory council shall be appointed for a term of up to 3 years and are eligible for reappointment.
(6) Notwithstanding the expiry of his or her term, a member of the advisory council continues to be a member until he or she is reappointed or his or her replacement is appointed.
(7) A member of the advisory council is not entitled to payment for services performed as a member but shall receive travelling and other expenses in accordance with guidelines established by the Lieutenant-Governor in Council.
9. (1) The minister may retain the services of a person with expertise in a particular area where the minister is of the opinion that the expertise is relevant to making a determination regarding payment from the fund.
(2) Expenses relating to an expert referred to in subsection (1) shall be paid from the fund.
10. (1) An owner or operator of an industrial facility to which this Act applies shall submit to the minister annually a report regarding the greenhouse gas emissions released and containing other information prescribed in the regulations.
(2) The minister may disclose to the public non-identifying aggregate information obtained from a report submitted under subsection (1) in the form and manner prescribed in the regulations.
Calculation of greenhouse gas emissions
11. An owner or operator of an industrial facility shall calculate its greenhouse gas emissions using the methodology prescribed in the regulations.
12. (1) The
minister may enter into an agreement with the government of a province, of
(2) An agreement made under subsection (1) with
the government of a province, of
Application for investigation
13. (1) A person ordinarily resident in the province who is at least 18 years of age and who is of the opinion that an offence has been committed under this Act or the regulations may apply to the minister for an investigation of the alleged offence.
(2) The application shall include a declaration that
(a) states the name and address of the applicant;
(b) states the nature of the alleged offence and the name of each person alleged to be included in the commission of the offence; and
(c) contains a concise statement of the evidence supporting the allegations of the applicant.
(3) Within 20 days of receipt of the application the minister shall acknowledge receipt of the application and shall investigate all matters that the minister considers necessary to determine the facts relating to the alleged offence.
(4) After acknowledging receipt of the application the minister shall report to the applicant every 90 days on the progress of the investigation and the action, if any, that the minister has taken or proposes to take.
(5) A report under subsection (4) shall include an estimate of the time required to complete the investigation or to implement the action.
(6) A report under subsection (4) is not required if the investigation is discontinued before the 90 day period referenced in subsection (4).
(7) The minister may discontinue an investigation if the minister is of the opinion that the alleged offence does not require further investigation.
(8) Where an investigation is discontinued, the minister shall
(a) prepare a written report describing the information obtained during the investigation and stating the reasons for the discontinuation; and
(b) send a copy of the report to the applicant and to any person whose conduct was investigated.
(9) A copy of the report sent under subsection (8) to a person whose conduct was investigated shall not disclose the name or address of the applicant or any other personal information about the applicant.
14. (1) The minister may designate persons or classes of persons to act as inspectors for the purpose of this Act and the regulations.
(2) A person shall not interfere with, obstruct, attempt to obstruct, or fail to cooperate with, an inspector in the exercise of his or her functions under this Act.
(3) A person shall not knowingly make a false or misleading statement, either orally or in writing, to an inspector while he or she is exercising powers or carrying out duties or functions under this Act or the regulations.
Powers of inspectors re: compliance
15. (1) An inspector may, at all reasonable times, for a purpose related to the administration and enforcement of this Act or the regulations, inspect or examine the premises, processes, books and records of a person that the inspector may consider relevant for the purposes of determining compliance with this Act or the regulations, and the inspector may, without a warrant
(a) enter any premises where
(i) the inspector reasonably believes a greenhouse gas is being, has been or may be released into the environment,
(ii) anything is or is suspected by the inspector of being done in connection with a requirement of this Act or the regulations, or
(iii) any property, or books and records are or may be kept;
(b) make copies or extracts or take photographs, videos or audiotapes that the inspector considers necessary;
(c) take samples of a substance or thing;
(d) require the owner or person in charge of a premises to give the inspector all reasonable assistance, including the production of books and records as requested by the inspector, and to answer all proper questions relating to the administration or enforcement of this Act or the regulations and, for that purpose, require the owner or person in charge to attend at the premises with the inspector; and
(e) require the owner or person in charge to make available the means to generate and manipulate books and records that are in machine readable or electronic form and any other means or information necessary for the inspector to assess the books and records.
(2) Notwithstanding subsection (1), an inspector shall not enter a dwelling-house without the consent of the occupant except under the authority of a warrant issued under this Act.
Contravention of Act suspected
16. (1) Where, during the course of an inspection or examination under section 15, or otherwise where an inspector believes on reasonable grounds that there has been a contravention of this Act or the regulations, the inspector may, with a warrant issued under subsection (2), seize and take away anything that may provide evidence with respect to a suspected offence under this Act or the regulations as evidence of a contravention and may retain those things until the time they are required in a court proceeding.
(2) A Provincial Court judge who is satisfied upon oath or affirmation that there are reasonable grounds for believing there is in or on a premises anything that may provide evidence with respect to a suspected offence under this Act or the regulations, may issue a warrant authorizing an inspector to enter the premises for the purpose of investigating the suspected offence and to
(b) examine the contents of the premises and make those inquiries that the inspector considers necessary; and
(c) copy, extract, photograph, video, seize and take away evidence, books and records.
(3) The owner or person in charge of a premises referred to in this section or a person present at the premises shall not obstruct an inspector in the carrying out of his or her duties under this section as authorized by the warrant.
Disposition of documents
17. (1) Where an inspector removes documents or records from a premises for the purpose of section 16, and makes a copy or extract of them or a part of them, the inspector shall give a receipt to the owner of the premises for the documents or records removed.
(2) Where documents or records are removed from a premises, the documents or records shall be returned to the owner as soon as the copies or extracts have been made.
(3) A copy or extract of a document or record related to an inspection, examination, test or inquiry purporting to be certified by the inspector is admissible in evidence in an action, proceeding or prosecution as proof, in the absence of evidence to the contrary, of the original without proof of appointment, designation, authority or signature of the person purporting to have certified the copy.
18. (1) Where, in the opinion of an inspector it would not be practical to appear before a Provincial Court judge to apply for a warrant, the inspector may make the application by telephone or other means of telecommunication.
(2) Where the information on which an application for a warrant is submitted by telephone or other means of telecommunication, the information shall be given under oath or affirmation, and the oath or affirmation may be administered by telephone or other means of telecommunication.
(3) The information submitted by telephone or other means of telecommunication shall include
(a) a statement of the circumstances that make it
impracticable for the inspector to appear personally before a
(b) a statement of the inspector’s grounds for believing that a person has contravened this Act or the regulations or that entry onto public or private premises where a contravention of this Act or the regulations is believed to occur has been denied.
(4) The sworn or affirmed information submitted by telephone or other means of telecommunication by an inspector shall specify the name of the person giving evidence, the facts ascertained and the manner and location in which evidence was received, and a record of that information shall be filed by the Provincial Court judge with the clerk of the court over which the judge presides.
(5) Where an inspector acts under the authority of a warrant obtained under this section, he or she shall provide a facsimile of the warrant to the owner or employee of the premises at the time the warrant is carried out.
(6) In subsection (5), "facsimile" includes a record produced by electronic means or a written record of a telephone conversation made by both parties to the conversation while it is in progress and which the parties have confirmed as to its accuracy by reading their record of the conversation to one another at the end of the conversation.
19. (1) Where the minister is of the opinion that a person has committed, as specified by regulation, a contravention of this Act or the regulations for which an administrative penalty applies, the minister or a person authorized by the minister may, in writing, notify that person that he or she is to pay to the government of the province an administrative penalty in the amount set out in the notice for each day or part of a day the contravention occurs or continues to occur.
(2) A person who pays an administrative penalty with respect to a contravention may not be charged with an offence under this Act with respect to that contravention.
(3) Where a person fails to pay an administrative penalty in accordance with a notification under subsection (1), the government of the province may recover the amount owing in respect of the penalty as a debt owed to the Crown.
(4) For the purpose of this section, an administrative penalty is a monetary penalty imposed in accordance with the regulations for a contravention of this Act.
20. (1) Where the minister believes on reasonable grounds that an owner or operator of an industrial facility has contravened or will contravene this Act or the regulations, the minister may, whether or not that person has been charged or convicted in respect of the contravention, issue an order, in writing, requiring the owner or operator at that owner or operator’s own expense, to
(a) stop or shut down an activity or an undertaking immediately, permanently, or for a specified time, where, with respect to that activity or undertaking, there has been a contravention of this Act or the regulations applicable to that activity or undertaking;
(b) do all things and take all steps that are necessary to comply with this Act or the regulations applicable to an approval, activity or undertaking in accordance with directions set out in the order;
(c) post a bond or other form of security acceptable to the minister or pay money to the Crown in an amount that the minister considers will ensure compliance with an order made under this section; or
(d) install, remove, replace or alter equipment, a tank, container or thing designed to control, contain, reduce or eliminate the release of greenhouse gas into the environment,
and there shall be served on the owner or operator a copy of the order and a statement showing the reasons for the making of the order and upon receipt of the copy and statement, that owner or operator shall comply with the order.
(2) In addition to other requirements that may be included in an order issued under this section, an order may contain provisions
(a) requiring a person, at that person’s own expense, to
(i) maintain records on a relevant matter and report periodically to the minister or a person appointed by the minister,
(ii) hire an expert to prepare a report for submission to the minister or a person appointed by the minister,
(iii) submit to the minister or a person appointed by the minister, a proposal, plan or information specified by the minister setting out an action to be taken by the person,
(iv) prepare and submit a contingency plan,
(v) undertake tests, investigations, surveys and other action and report results of these to the minister, and
(vi) take another measure that the minister considers necessary to facilitate compliance with the order;
(b) establishing the manner, method, or procedures to be used in carrying out the measures required by the order; and
(c) establishing a time within which a measure required by the order is to be commenced and the time within which the measure, order or a portion of the measure or order must occur.
(3) Where a stop order is issued under this section, the inspector, minister or other employee shall, by written notice, not more than 48 hours after issuing that order, give to the person against whom the order is made reasons for it and shall immediately forward a copy of the stop order and the notice to the minister.
(4) The minister may authorize an official, officer or employee of government to issue, amend, vary, revoke and give reasons for an order under this section.
Amendment or revocation of order
21. (1) The minister may, with respect to an order made under section 20,
(a) amend a term or condition of, add a term or condition to, or delete a term or condition from an order;
(b) revoke an order; and
(c) amend a typographical error in an order.
(2) A copy of an order amended or revoked under subsection (1) shall be served as required by this Act on the person to whom the original order was directed and served.
Effects of order
22. (1) An order made under section 20 may deal with more than one greenhouse gas and may be directed to one or more persons.
(2) An order under section 20 remains in effect until revoked by the minister.
(3) An order made under section 20 remains in effect during an appeal by the person who is subject to the order until a decision is made with respect to that appeal.
(4) An order issued under section 20 is binding on the heirs, successors, executors, administrators, trustees, receivers, receiver managers and assigns of the person to whom it is directed.
23. (1) Where an order is served upon the person to whom it is directed, that person shall comply with the order immediately or, where a period of compliance is specified in the order, within the time period specified.
(2) Where a stop order is made under section 20, costs and expenses incurred by the owner of the industrial facility for the stopped undertaking or activity shall not be recoverable from the Crown.
Joint and individual liability
24. Where an order under section 20 is directed to more than one person, all persons named in the order are jointly and individually responsible for carrying out the terms of the order.
Protection from liability
25. A person is not personally liable for anything done or omitted in good faith in the exercise or performance, or intended exercise or performance, of a power, duty or function
(a) conferred upon him or her by this Act or the regulations; or
(b) on behalf of or under the direction of a person on whom the power, duty or function is conferred by this Act or the regulations,
or for the costs in connection with an action or proceeding.
Fees and forms
26. The minister may set fees and establish forms for the purpose and administration of this Act.
27. The minister shall, every 5 years, conduct a review of this Act and the regulations and consider the areas which may be improved.
28. (1) A person who contravenes this Act or the regulations or an order made under this Act or the regulations or who fails to cooperate with an inspector or comply with an order of an inspector is guilty of an offence and liable, on summary conviction,
(a) for a first offence, to a fine of not less than $50,000 and not more than $1,000,000 or to imprisonment for a term of not less than one month or more than 6 months, or to both a fine and imprisonment; and
(b) for a second and subsequent offence, to a fine of not less than $100,000 and not more than $1,500,000 or to imprisonment for a term of not less than 2 months or more than 6 months, or to both a fine and imprisonment.
(2) Each contravention of this Act or the regulations constitutes a new and separate offence.
(3) Where an offence under this Act or the regulations is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
(4) For the purpose of subsections (2) and (3), a conviction for an offence more than one year after the date of the last previous conviction shall be considered to be a conviction for a first offence.
29. (1) The minister may make regulations
(a) prescribing categories of hydrofluorocarbons and perfluorocarbons included in the definition of greenhouse gas;
(b) prescribing additional greenhouse gases included in the definition of greenhouse gas;
(c) respecting the monitoring, reporting and verification of greenhouse gas emissions;
(d) respecting the disclosure of information under subsection 10(2);
(e) prescribing the information to be included in an annual report and other reports submitted to government;
(f) prescribing the manner for determining the carbon dioxide equivalent and the global warming potential for each greenhouse gas;
(g) prescribing the methodology to be used by industrial facilities to report its greenhouse gas emissions;
(h) respecting the detention and return or other disposition of a thing seized under a warrant or under a provision of this Act; and
(i) defining a word or expression that is not defined in this Act.
(2) Regulations made under this section may be made with retroactive effect.
Lieutenant-Governor in Council regulations
30. (1) The Lieutenant-Governor in Council may make regulations
(a) prescribing circumstances under which this Act applies to the Holyrood Generating Station;
(b) establishing greenhouse gas emission reduction targets;
(c) respecting the phasing in of greenhouse gas emission reduction targets for new industrial facilities and significantly modified industrial facilities;
(d) prescribing the manner of calculating the greenhouse gas emissions levels for industrial facilities;
(e) exempting industrial facilities from achieving its annual greenhouse gas emissions reduction target;
(f) prescribing additional greenhouse gas reduction credits;
(g) respecting the manner in which, and the terms and conditions subject to which, greenhouse gas reduction credits may be created, calculated, obtained, distributed, exchanged, traded, sold, used, varied and cancelled;
(h) authorizing the minister to establish requirements or limits regarding the use of greenhouse gas reduction credits;
(i) respecting the creation, operation and management of one or more public registries;
(j) respecting the administration and operation of the fund;
(k) respecting the appeal process for ministerial orders;
(l) prescribing best available control requirements for greenhouse gas emissions for proposed industrial facilities and industrial facilities that are proposing significant modifications to the industrial facility;
(m) respecting the contravention of sections of this Act and the regulations for which an administrative penalty may be imposed and the time and manner in which those penalties may be imposed and collected;
(n) exempting a person from the operation of all or part of the regulations made under this Act subject to any terms or conditions the Lieutenant-Governor in Council considers appropriate for a period not exceeding one year;
(o) defining a word or expression that is not defined in this Act; and
(p) generally, to give effect to this Act.
(2) Regulations made under this section may be made with retroactive effect.
(3) The Lieutenant-Governor in Council may, in addition to or instead of regulations made under this section, adopt by reference and constitute as regulations the whole or part of provisions of a code adopted or standards fixed with or without modification, and including amendments to the code or standard of an organization acceptable to the Lieutenant-Governor in Council.
(4) A certificate of the Lieutenant-Governor in Council that a document is a copy of a code or standard referred to in subsection (3) or an extract from, a modification of, or an amendment to, a code or standard is without proof presumptive evidence of the content of that code, standard, extract or amendment.
31. This Act, or a section, subsection, paragraph or subparagraph of this Act, comes into force on a day or days to be proclaimed by the Lieutenant-Governor in Council.