Acts and Regulations

2021-43 - Reduction of Greenhouse Gas Emissions

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Full text
Current to 1 January 2024
NEW BRUNSWICK
REGULATION 2021-43
under the
Climate Change Act
(O.C. 2021-152)
Filed June 1, 2021
Under section 10 of the Climate Change Act, the Lieutenant-Governor in Council makes the following Regulation:
1
PRELIMINARY MATTERS
Citation
1This Regulation may be cited as the Reduction of Greenhouse Gas Emissions Regulation – Climate Change Act.
Definitions
2(1)The following definitions apply in this Regulation.
“Act” means the Climate Change Act.(Loi)
“baseline emissions intensity” means the quotient obtained by dividing the baseline emissions level for a product in commercial production at a regulated facility by the baseline production level for the product. (intensité de base des émissions)
“baseline emissions level” means the average total annual quantity of regulated emissions by a regulated facility resulting from the commercial production of a product calculated on the basis of the baseline years for the regulated facility.(niveau de référence des émissions)
“baseline production level” means the average total annual quantity of a product commercially produced at a regulated facility calculated on the basis of the baseline years for the regulated facility.(niveau de production de référence)
“baseline years” means the baseline years for a regulated facility that are established by the owner or operator of the regulated facility in accordance with the standards and that are approved by the Minister.(années de référence)
“business day” means a day other than a Saturday or a holiday as defined in the Interpretation Act. (jour ouvrable)
“commercial production” means the production of a product for eventual sale, transfer or distribution, including the extraction of minerals, solid materials, liquids and gases for eventual sale, transfer or distribution. (production commerciale)
“emissions” means emissions of greenhouse gas as measured in terms of tonnes of carbon dioxide equivalent. (émissions)
“emissions intensity” means the intensity of regulated emissions.(intensité des émissions)
“emissions limit” means the limit of regulated emissions, which limit is determined in accordance with section 16. (limite d’émissions)
“new facility” means any regulated facility that has been in commercial production for less than three years.(nouvelle installation)
“performance standard reduction factor” means the percentage set out in Table 1 of Schedule A that applies for a given reduction period to a product commercially produced by a regulated facility, other than electricity generated by the regulated facility.(facteur de réduction de la norme de rendement)
“qualified person” means a person who meets the qualifications and eligibility requirements established in this Regulation and the standards.(personne compétente)
“reduction period” means the reduction period determined in accordance with the standards.(période de réduction)
“regulated emissions” means emissions from a regulated source.(émissions réglementées)
“regulated source” means a source from which emissions may originate and that is established in the standards. (source réglementée)
“standby period” means a period covered by an order of the Minister under subsection 7(1).(période de non-production)
2(2)For the purposes of this Regulation, a regulated facility commences commercial production in the calendar year in which a product is first produced at the regulated facility for eventual sale, transfer or distribution.
2(3)The following definitions apply in Schedule A.
“gaseous fuel” means a fossil fuel that is gaseous at a temperature of 15 °C and a pressure of 101.325 kPa. (combustible gazeux)
“liquid fuel” means a fossil fuel that is liquid at a temperature of 15 °C and a pressure of 101.325 kPa. (combustible liquide)
“solid fuel” means a fossil fuel that is solid at a temperature of 15 °C and a pressure of 101.325 kPa. (combustible solide)
Reporting requirement – exception
3The owner or operator of an industrial facility referred to in section 7.21 of the Act that emits a total quantity of regulated emissions of less than 10,000 tonnes of carbon dioxide equivalent of greenhouse gases in each of two consecutive calendar years is not required to submit the greenhouse gas emissions report referred to in that section as long as the yearly total quantity of regulated emissions by the industrial facility remains under that amount.
2
REGULATED FACILITIES
Application
4This Part applies to regulated facilities.
Registration of regulated facilities
5(1)For the purposes of section 7.11 of the Act,
(a) the owner or operator of a new facility shall apply for registration of the new facility by June 1 of the calendar year after the calendar year in which the facility first has a total quantity of regulated emissions of 50,000 tonnes or more of carbon dioxide equivalent of greenhouse gases, and
(b) the owner or operator of an opted-in facility shall apply for registration of the opted-in facility not later than 15 business days after the designation of the facility as an opted-in facility.
5(2)If the owner and operator of a regulated facility are different persons, only one registration is required for the regulated facility.
5(3)For the purposes of subsection (1), an application for registration shall be made in accordance with the standards.
5(4)If the Minister is satisfied that the application for registration meets the requirements of this section and the standards, the Minister shall register the regulated facility.
5(5)If the Minister proposes to refuse an application for registration, the Minister shall give written notice to the applicant, setting out the following:
(a) the reasons for the proposed refusal; and
(b) a statement that the applicant may, no later than five business days following the business day on which the notice was given, submit comments in writing to the Minister in respect of the proposed refusal.
5(6)After considering any comments received from an applicant within the time specified in a notice under subsection (5), the Minister shall
(a) give the applicant written confirmation that the facility has been registered, or
(b) give the applicant written notice of the Minister’s refusal to register the facility.
5(7)If an application for registration is refused, a new application by the applicant shall be made in accordance with the directions of the Minister.
5(8)The owner or operator of a regulated facility shall immediately send written notice to the Minister of any change in the information submitted for the purposes of registration and provide the Minister with the updated information as soon as circumstances permit after the change.
5(9)Despite anything else in this section, any industrial facility that was registered under subsection 171(2) or 172(2) of the Greenhouse Gas Pollution Pricing Act (Canada) immediately before the commencement of this Regulation shall be deemed to be registered under section 7.11 of the Act on the commencement of this Regulation.
5(10)The owner or operator of an industrial facility to which subsection (9) applies shall provide any information required by the Minister for the purposes of that subsection.
Removal from registration
6(1)On the application of the owner or operator of a regulated facility, the Minister may, by order, remove the regulated facility from registration if the total quantity of regulated emissions by the regulated facility is less than 50,000 tonnes of carbon dioxide equivalent of greenhouse gases in each of the three consecutive compliance periods before the date of the application.
6(2)An application for the purposes of subsection (1) shall be made as part of the greenhouse gas emissions report for the third consecutive compliance period or for any subsequent consecutive compliance period in which the total quantity of regulated emissions by the regulated facility is less than 50,000 tonnes of carbon dioxide equivalent of greenhouse gases.
6(3)If the total quantity of regulated emissions from a regulated facility remains less than 10,000 tonnes of carbon dioxide equivalent of greenhouse gases in each year for three or more consecutive calendar years, the Minister may, on the Minister’s own motion, by order, remove the regulated facility from registration, and, in that case, the Minister shall provide written notice of the removal to the owner or operator of the regulated facility.
6(4)The Minister may impose terms and conditions the Minister considers appropriate on an order under subsection (1) or (3), including exemptions from any requirement of the Act, the regulations and the standards, and the Minister may amend the terms and conditions.
6(5)The owner or operator of the regulated facility shall comply with the terms and conditions imposed by the Minister.
Standby period
7(1) On the application of the owner or operator of a regulated facility, the Minister may, by order, declare the regulated facility to be in a standby period
(a) in the circumstance where a baseline production level has been established for each product commercially produced at the regulated facility, if the Minister is satisfied that commercial production at the facility has halted for a period of at least three months for a reason that was not provided in the information reported under section 14 to establish the baseline production level, or
(b) in the circumstance where a baseline production level has not been established for each product commercially produced at the regulated facility, if the Minister is satisfied that it was necessary to halt commercial production at the facility for a period of at least three months.
7(2)Subsection (1) does not apply to a new facility.
7(3)If a regulated facility is in a standby period, the owner or operator of the regulated facility is not required to have the greenhouse gas emissions reports for the regulated facility verified under subsection 7.2(3) of the Act and the regulated facility is not subject to the imposition of compliance obligations.
7(4)Subject to subsection (7), the owner or operator of a regulated facility that enters a standby period during a compliance period is subject to requirements for the verification of the greenhouse gas emissions reports for the regulated facility and the regulated facility is subject to the imposition of a compliance obligation for any part of the compliance period during which it was in commercial production.
7(5)When requested by the Minister, the owner or operator of a regulated facility shall submit a signed declaration to the Minister to attest that the regulated facility is still in a standby period.
7(6)If a regulated facility is in a standby period and the owner or operator of the regulated facility intends that the regulated facility resume commercial production, the owner or operator of the regulated facility shall send written notice of that intention to the Minister as soon as circumstances permit after making the decision that commercial production will resume.
7(7)A regulated facility that resumes commercial production after a standby period is not subject to the imposition of compliance obligations for a period of three months after the date on which commercial production resumes at the facility.
7(8)After the expiry of the three-month period referred to in subsection (7), the regulated facility is subject to the imposition of compliance obligations, and its owner or operator is required to submit a verified greenhouse gas emissions report to the Minister in the next compliance period, in accordance with the standards.
7(9)In the circumstance referred to in paragraph (1)(b), the owner or operator of a regulated facility that resumes commercial production after a standby period shall establish the information required by paragraphs 14(1)(a) and (b) within the time required by the Minister.
7(10)The Minister may revoke an order made under this section if the Minister is satisfied the regulated facility has resumed commercial production.
Decommissioning
8(1)On the application of the owner or operator of a regulated facility, the Minister may, by order, declare that the facility has been decommissioned if the Minister is satisfied that this is the case.
8(2)Subject to subsections (3), (4) and (5), a regulated facility that is subject to an order under subsection (1) is no longer subject to the Act, the regulations and the standards.
8(3)The Minister may impose terms and conditions the Minister considers appropriate on an order made under subsection (1) and may amend the terms and conditions.
8(4)The owner or operator of the decommissioned regulated facility shall comply with the terms and conditions imposed by the Minister.
8(5)The Act, the regulations and the standards continue to apply to the decommissioned regulated facility for the purposes of enforcing subsection (4).
Reregistration
9(1)The owner or operator of a regulated facility that has been removed from registration under section 6 by order of the Minister is required to reregister the facility under section 7.11 of the Act if the regulated facility has a total quantity of regulated emissions of 50,000 tonnes or more of carbon dioxide equivalent of greenhouse gases in any calendar year following the removal.
9(2)The reregistration of the regulated facility results in the revocation of the order made by the Minister under section 6.
9(3)Paragraph 5(1)(a) and subsections 5(2) to (8) apply with the necessary modifications to a reregistration required by subsection (1).
Compliance periods
10(1)For the purposes of the Act and this Regulation, a compliance period is a calendar year in which a regulated facility is subject to this Regulation and for which it is required, in accordance with this Regulation and the standards, to reduce the emissions intensity at the regulated facility.
10(2)The first compliance period for a regulated facility is the first calendar year in which that regulated facility becomes subject to this Regulation.
10(3)Despite subsection (2), the first compliance period for a new facility is the third calendar year after the calendar year in which the new facility commences commercial production.
10(4)Despite subsections (1) to (3), the Minister may exclude from a compliance period for a regulated facility any portion of the calendar year if the Minister considers it just and equitable to do so in the circumstances, and in that case, the Minister shall provide written notice of the exclusion to the owner or operator of the regulated facility.
Requirement to reduce emissions intensity
11 For the purposes of subsection 7.12(1) of the Act, a regulated facility shall reduce, in accordance with this Regulation and the standards, the emissions intensity at the regulated facility.
Reduction periods
12(1) Subject to subsection (2), for the purposes of determining the performance standard reduction factor for a product in commercial production at a regulated facility, the owner or operator of the regulated facility shall determine the reduction period in accordance with the standards.
12(2)The owner or operator of a regulated facility that engages in fossil fuel-based electricity generation shall determine the reduction period in accordance with the standards for the purposes of determining the performance standard for the electricity generated at the regulated facility by a given type of fossil fuel.
Performance standard reduction factors and performance standards
13For the purpose of calculating an emissions limit for a regulated facility in accordance with the standards,
(a) the performance standard reduction factor for a product, other than electricity, in a given reduction period at the regulated facility is determined using Table 1 of Schedule A, and
(b) in the case of a regulated facility that engages exclusively in electricity generation, the performance standard for the electricity generated by each fossil fuel type in a given reduction period at the regulated facility is determined using Table 2 of Schedule A.
Reporting of information
14(1)The owner or operator of a regulated facility shall
(a) establish, in accordance with the standards, the baseline emissions level, baseline production level and baseline emissions intensity for each product commercially produced at the regulated facility,
(b) establish, in accordance with the standards, the baseline years for the regulated facility,
(c) report the information mentioned in paragraphs (a) and (b) to the Minister in accordance with the standards, and
(d) submit to the Minister in accordance with the standards a verification report to establish the accuracy of the information mentioned in paragraphs (a) and (b).
14(2)A verification report shall be prepared in accordance with the standards by a qualified person and is subject to the approval of the Minister.
14(3)If a verification report contains an assessment that is adverse to the regulated facility or a qualification to any information reported, the Minister may direct, in writing, that the owner or operator of the regulated facility undertake corrective actions specified in the direction within the time specified in the direction.
14(4)An owner or operator of a regulated facility to whom a direction by the Minister is given under subsection (3) shall comply with the direction.
14(5)If any of the following circumstances occurs, the owner or operator of a regulated facility shall advise the Minister within 30 days after the occurrence: 
(a) the regulated facility commences commercial production of a new product;
(b) the regulated facility ceases commercial production of an existing product;
(c) commercial production at a regulated facility has decreased, but not yet ceased, due to the decommissioning of the facility;
(d) a reduction in emissions intensity for the regulated facility is equal to or greater than 10% in a compliance period;
(e) changes have been made to quantification methodologies that result in deviations from regulated emissions calculated;
(f) changes have been made to operational boundaries, ownership or control of greenhouse gas sources or sinks.
14(6)Subject to subsection (7), the Minister may review a baseline emissions intensity and adjust the baseline emissions intensity or require the owner or operator of a regulated facility to do so to the satisfaction of the Minister
(a) in any of the circumstances referred to in subsection (5), or
(b) if the Minister is of the opinion that the baseline emissions intensity as reported by the owner or operator of the regulated facility is inaccurate.
14(7)Before the Minister adjusts a baseline emissions intensity or requires the owner or operator of a regulated facility to do so in accordance with subsection (6), the Minister shall, in accordance with the standards,
(a) provide the owner or operator with written notice of the Minister’s decision along with the reasons for it, and
(b) give the owner or operator an opportunity to make written representations within 30 days after receiving the notice of the Minister’s decision.
Application to adjust baseline emissions intensity
15(1)In any of the circumstances referred to in subsection 14(5), the owner or operator of a regulated facility may, in accordance with the standards and subsection (2), apply to the Minister for authorization to adjust a baseline emissions intensity for any product commercially produced at the regulated facility.
15(2)An application shall
(a) be submitted in the form and manner satisfactory to the Minister,
(b) be made on or before June 1 of the compliance period in which the adjusted baseline emissions intensity is to apply, and
(c) include the information required by the standards and the Minister.
Determination of emissions limit and the total quantity of regulated emissions
16(1)In accordance with the standards, for every compliance period, the owner or operator of a regulated facility shall determine the emissions limit of the regulated facility and the total quantity of regulated emissions by the regulated facility.
16(2)If the Minister decides that the owner or operator of a regulated facility has not complied with the standards when determining the emissions limit or the total quantity of regulated emissions, the Minister shall advise the owner or operator in writing of the decision, along with the reasons for it, and shall specify the procedures for making the determination.
16(3)The owner or operator of the regulated facility shall comply with the procedures specified by the Minister under subsection (2).
Compliance obligations
17(1)A compliance obligation is imposed on a regulated facility if the total quantity of regulated emissions by the regulated facility exceeds the emissions limit for that regulated facility for a compliance period.
17(2)The compliance obligation for a regulated facility for a given compliance period is calculated in accordance with the following formula:
A = B – C
where
A  is the compliance obligation for the regulated facility, expressed in tonnes of carbon dioxide equivalent of greenhouse gases;
B  is the total quantity of regulated emissions by the regulated facility for the compliance period, expressed in tonnes of carbon dioxide equivalent of greenhouse gases; and
C  is the emissions limit for the regulated facility for the compliance period, expressed in tonnes of carbon dioxide equivalent of greenhouse gases.
Fulfilling compliance obligations
18(1)On or before the date prescribed in the standards, a regulated facility shall fulfil a compliance obligation that has been imposed on it.
18(2)A regulated facility may, in accordance with the standards, fulfil a compliance obligation that has been imposed on it using one or more of the following credits:
(a) fund credits;
(b) performance credits awarded by the Minister, if any;
(c) offset credits granted or recognized by the Minister, if any.
18(3)If a regulated facility fails to fulfil a compliance obligation as required by this section, the regulated facility shall pay the amount calculated in accordance with section 19 into the Fund.
Dollar amount of compliance obligation
19(1)The dollar amount of an unfulfilled compliance obligation shall be calculated as follows:
A = (B – C) × D
where
A  is the dollar amount of the unfulfilled compliance obligation;
B  is the compliance obligation as calculated in accordance with section 17, expressed in tonnes of carbon dioxide equivalent of greenhouse gases;
C  is the fulfilled compliance obligation, expressed in tonnes of carbon dioxide equivalent of greenhouse gases; and
D  is the dollar amount per tonne of carbon dioxide equivalent of greenhouse gases for the compliance period as provided for in subsection (2).
19(2)For the purposes of determining the value “D” in subsection (1), the dollar amount per tonne of carbon dioxide equivalent of greenhouse gases is as follows: 
(a) $40 for the 2021 compliance period;
(b) $50 for the 2022 compliance period;
(c) $65 for the 2023 compliance period;
(d) $80 for the 2024 compliance period;
(e) $95 for the 2025 compliance period;
(f) $110 for the 2026 compliance period;
(g) $125 for the 2027 compliance period;
(h) $140 for the 2028 compliance period;
(i) $155 for the 2029 compliance period; and
(j) $170 for the 2030 compliance period and subsequent compliance periods.
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Interest rate
20For the purposes of subsection 4(11.1) of the Act, the rate of interest is the rate of interest set out in subsection 9(1) of New Brunswick Regulation 84-247 under the Revenue Administration Act.
Fund credits
21(1)A regulated facility may obtain a fund credit by paying money into the Fund.
21(2)A regulated facility shall not obtain more fund credits than required to fulfil the regulated facility’s compliance obligation for a compliance period.
21(3)The purchase price of fund credits per tonne of carbon dioxide equivalent of greenhouse gases is as follows:
(a) $40 for the 2021 compliance period;
(b) $50 for the 2022 compliance period;
(c) $65 for the 2023 compliance period;
(d) $80 for the 2024 compliance period;
(e) $95 for the 2025 compliance period;
(f) $110 for the 2026 compliance period;
(g) $125 for the 2027 compliance period;
(h) $140 for the 2028 compliance period;
(i) $155 for the 2029 compliance period; and
(j) $170 for the 2030 compliance period and subsequent compliance periods.
21(4)If a regulated facility obtains fund credits, the Minister shall
(a) assign a serial number to each fund credit;
(b) record the serial numbers of the fund credits in the registry referred to in section 22; and
(c) notify the regulated facility of the serial numbers of its fund credits.
21(5)A fund credit obtained for a compliance period shall be used only for that compliance period.
21(6)For greater certainty, if the owner or operator of a regulated facility submits an updated version of the greenhouse gas emissions report for the regulated facility for a previous compliance period and the regulated facility requires additional fund credits to fulfil all or a portion of its compliance obligation for that previous compliance period, fund credits may be obtained by the regulated facility for use in that previous compliance period.
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Registry – compliance options
22The Minister shall establish and maintain a registry that records the serial numbers of the compliance options issued by the Minister and the obtention, the distribution, the exchange, the trading, the sale, the use and the cancellation of compliance options, as applicable.
Greenhouse gas emissions report
23(1)The owner or operator of a regulated facility shall submit to the Minister a greenhouse gas emissions report for each compliance period in accordance with the standards within the time prescribed in the standards.
23(2)A greenhouse gas emissions report shall contain the following:
(a) the information required by the standards;
(b) confirmation that the total quantity of regulated emissions by the regulated facility is below, meets or exceeds the emissions limit for the regulated facility for the compliance period in question; and
(c) a declaration signed by the owner or operator of the regulated facility in the manner required by the standards.
23(3)A greenhouse gas emissions report shall be verified by a qualified person, in accordance with the standards and to the satisfaction of the Minister.
23(4)If the Minister is satisfied that a greenhouse gas emissions report contains any errors or omissions or gives rise to other concerns that are identified within the period for the retention of documents established in section 26, the Minister may direct, in writing, that the owner or operator of the regulated facility make any corrections specified in the direction and submit an updated version of the greenhouse gas emissions report to the Minister within the time specified in the direction.
23(5)If a verification report prepared by a qualified person on a greenhouse gas emissions report is adverse to the owner or operator of the regulated facility, the Minister may direct, in writing, that the owner or operator of the regulated facility make any corrections specified in the direction and submit an updated version of the greenhouse gas emissions report to the Minister within the time specified in the direction.
23(6)An owner or operator of a regulated facility to whom a direction by the Minister is given under subsection (4) or (5) shall comply with the direction.
Compliance report
24(1)In accordance with the standards, the owner or operator of a regulated facility shall submit a compliance report to the Minister for any compliance period in which the total quantity of regulated emissions by the regulated facility exceeds the emissions limit for the regulated facility for the compliance period.
24(2)A compliance report shall be submitted within the time prescribed in the standards.
24(3)A compliance report shall contain the following:
(a) confirmation satisfactory to the Minister that the regulated facility met any applicable compliance obligation for the compliance period; and
(b) any other information required by the standards.
Qualified persons
25(1)Subject to subsection (2), a qualified person for a regulated facility is a person who meets the qualifications set out in the standards.
25(2)A person is not eligible to be a qualified person if any of the following apply:
(a) the person is an employee, agent or officer of the owner or operator of the regulated facility or the manager, owner or operator of the regulated facility;
(b) the person is an employee, agent or officer of an affiliate of the owner or operator of the regulated facility;
(c) the person is an employee or agent of the Government of New Brunswick.
25(3)For the purposes of this section, an external consultant to the owner or operator of a regulated facility is deemed not to be an agent of the owner or operator of the regulated facility.
25(4)The Minister may request that a qualified person produce evidence to the Minister of the person’s qualifications and eligibility to be a qualified person.
25(5)In verifying information, a qualified person shall comply with the requirements established in the standards.
Record keeping
26An owner or operator of a regulated facility who submits a report to the Minister under the Act, this Regulation or the standards shall retain all documents and information that support the report, including a record of any methodologies, procedures or instruments that are used, for a minimum of seven years after the date on which the report was submitted.
3
GENERAL AND COMMENCEMENT
Appeal of Ministerial order
27New Brunswick Regulation 84-179 under the Clean Environment Act applies with the necessary modifications to an appeal referred to in section 7.91 of the Act.
Commencement
28This Regulation shall be deemed to have come into force on January 1, 2021.
SCHEDULE A
Table 1
Performance standard reduction factors
Reduction
period
1
2
3
4
5
6
7
8
9
10
Performance
standard reduction
factor for all
products excluding
electricity
99%
98%
96%
94%
92%
90%
88%
86%
84%
82%
Table 2
Performance standards for electricity generation
Reduction period
1
2
3
4
5
6
7
8
9
10
Performance standard for
electricity generated by fossil
fuel types (t CO2e / GWh)
Solid fuel
820
811
780
765
725
725
710
705
705
1
Liquid fuel
800
795
668
668
668
668
668
668
668
668
Gaseous fuel
420
420
395
395
395
390
370
370
370
240
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N.B. This Regulation is consolidated to January 1, 2023.