Acts and Regulations

2024-57 - Contaminated Sites

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Current to 1 January 2024
NEW BRUNSWICK
REGULATION 2024-57
under the
Clean Environment Act
(O.C. 2024-199)
Filed July 30, 2024
Under section 32 of the Clean Environment Act, the Lieutenant-Governor in Council makes the following Regulation:
Citation
1This Regulation may be cited as the Contaminated Sites Regulation – Clean Environment Act.
Definitions
2The following definitions apply in this Regulation.
“Act” means the Clean Environment Act. (Loi)
“historical contamination” means a release or presence of a contaminant referred to in section 4.3 of the Act that occurred more than 30 days previously and is (contamination passée)
(a) discovered during a site excavation or environmental site assessment, or
(b) of a category prescribed by ministerial protocol.
“limited impact release” means a release or presence of a contaminant referred to in section 4.3 of the Act that (déversement à impacts limités)
(a) occurred no more than 30 days previously, and
(b) meets any other criteria established by ministerial protocol.
“ministerial protocol” means a standard, policy, guideline, procedure or protocol adopted or developed by the Minister in accordance with section 4.9 of the Act and incorporated by reference in this Regulation in section 3. (protocole ministériel)
Incorporation by reference of ministerial protocols
3(1)For the purposes of section 32.1 of the Act, the following ministerial protocols are incorporated by reference in this Regulation:
(a) Ministerial Protocol – Contaminated Sites Program;
(b) Ministerial Protocol – Notification of the Release of a Contaminant;
(c) Ministerial Protocol – Limited Impact Release;
(d) Ministerial Protocol – Environmental Site Assessment;
(e) Ministerial Protocol – Remediation, Risk Assessment and Monitoring; and
(f) Ministerial Protocol – File Closure.
3(2)Any person who is subject to an obligation provided for in a ministerial protocol shall comply with that obligation.
NOTICE OF CONTAMINATION
Notice of contamination – general
4(1)Subject to section 5, a notice of the release or presence of a contaminant under section 4.3 of the Act shall be given immediately after the person giving notice learns or has reason to believe that there has been a release or that a contaminant is present to
(a) the Minister, and
(b) any other person indicated by the Minister.
4(2)The notice shall be given orally, in accordance with ministerial protocols.
Notice of historical contamination
5(1)In the case of historical contamination, a notice under section 4.3 of the Act shall be given no later than 30 days after the person giving notice learned or had reason to believe that historical contamination is present to the following persons:
(a) the Minister;
(b) each registered owner of the land on which the historical contamination occurred; and
(c) each registered owner of the land to which the contaminant has migrated.
5(2)The notice shall be given in writing, in the form established by ministerial protocol.
REMEDIATION
Application
6Sections 7 to 14 apply to areas designated as contaminated sites under section 4.31 of the Act.
Prevention of adverse impacts of a contaminant
7When a contaminated site is designated, the responsible party shall take all reasonable measures to prevent, reduce and rectify the adverse impact of the contaminant.
Obligation to remediate
8Subject to section 14, the responsible party shall ensure that the contaminated site is remediated in accordance with sections 9 to 11.
Environmental site assessment of the contaminated site
9The responsible party shall ensure that a site professional undertakes or supervises an environmental site assessment of the contaminated site in accordance with ministerial protocols and that the related report is filed with the Minister within 365 days of the designation under section 4.31 of the Act or a later date authorized by the Minister in writing.
Site remediation and filing of documents
10(1)The responsible party shall ensure that a site professional undertakes or supervises the following measures in accordance with ministerial protocols and the directives of the Minister:
(a) preparation and filing of a remedial action plan with the Minister;
(b) remediation of the contaminated site and an evaluation of risks in accordance with the remedial action plan;
(c) management, in the manner acceptable to the Minister, of the contaminant or the materials that are contaminated or otherwise impacted;
(d) any other remediation, assessment or monitoring measures required by ministerial protocol;
(e) preparation and filing with the Minister of the following:
(i) one or more monitoring reports;
(ii) a closure report; and
(iii) a record of site condition; and
(f) if the Minister so requires, any supplementary information needed to determine whether the requirements provided in this Regulation and the ministerial protocols have been met.
10(2)The measures referred to in subsection (1) shall be completed within two years of the designation under section 4.31 of the Act or a later date authorized by the Minister in writing.
Certification by a site professional
11The site professional shall certify in the record of site condition that
(a) to the best of their knowledge, the information contained in the record of site condition and the closure report is accurate, and
(b) the contaminated site has been managed in accordance with this Regulation and the ministerial protocols and the remaining concentration of contaminant meets the applicable criteria or is managed in a manner so as not to pose an unacceptable risk to human health or the environment.
File closure
12(1)On receiving all the documents and information referred to in subparagraphs 10(1)(e)(ii) and (iii) and paragraph 10(1)(f), the Minister shall determine whether the requirements under this Regulation and the ministerial protocols have been met.
12(2)If the requirements have not been met, the Minister shall inform the responsible party in order that the responsible party may take the necessary measures to comply with the requirements.
12(3)When the requirements have been met, the Minister shall close the file and notify the responsible party in writing.
12(4)Following the file closure, the responsible party shall ensure that a site professional supervises the decommissioning of monitoring wells in accordance with ministerial protocols.
12(5)Despite the file closure, the Minister may impose site management obligations on the responsible party for the purpose of limiting risk to human health or the environment in accordance with the conditions set out in the record of site condition, the closure report and ministerial protocols.
12(6)The responsible party shall comply with the obligations imposed under subsection (5).
Reopening a file relating to a contaminated site
13(1)The Minister may reopen a file closed under section 12 and impose on the responsible party any requirements referred to in sections 8 to 12 in the following circumstances:
(a) the closure report or record of site condition is found to contain false or misleading information, statements or certifications;
(b) a contaminant referenced in the closure report
(i) is present on any part of the contaminated site in concentrations that exceed those forming the basis for the file closure, or
(ii) has migrated from the contaminated site to any other land that was not referenced in the report;
(c) the responsible party fails to meet any of the obligations or conditions imposed on the responsible party under subsection 12(5); or
(d) a person causes or permits a change to the condition or use of the site, which causes an actual or potential adverse impact on human health or the environment.
13(2)When a file is reopened under subsection (1), the provisions of this Regulation apply as though the contamination were a new release or a new presence of a contaminant.
Limited impact release
14(1)In the case of a limited impact release, the responsible party shall ensure that the contaminated site is remediated in accordance with this section and ministerial protocols within 30 days of the date of the limited impact release or a later date authorized by the Minister in writing.
14(2)Unless exempted by the Minister in writing, the responsible party shall ensure that the remediation is completed or supervised by a site professional.
14(3)Within 90 days of the date of the limited impact release or a later date authorized by the Minister in writing, the responsible party shall ensure that a site professional prepares and files a closure report with the Minister in accordance with ministerial protocols.
14(4)The site professional shall certify in the closure report that the information provided in the report is, to the best of their knowledge, accurate.
14(5)On receiving the closure report, the Minister shall determine whether the requirements under this Regulation and the ministerial protocols have been met.
14(6)If the requirements have not been met, the Minister shall inform the responsible party in order that the responsible party may take the necessary measures to comply with the requirements.
14(7)When the requirements have been met, the Minister shall close the file and notify the responsible party in writing.
14(8)If, at any time during the remediation, the responsible party or the site professional learns or has reason to believe that the release or presence of a contaminant does not meet or no longer meets the criteria established by ministerial protocol to be considered a limited impact release, they shall inform the Minister as soon as possible.
14(9)The Minister may require that the responsible party remediate the contaminated site in accordance with section 8 when
(a) the Minister knows or has reason to believe that the release or presence of the contaminant does not meet or no longer meets the criteria established by ministerial protocol to be considered a limited impact release, or
(b) there has been a failure to comply with the requirements of subsections (1) to (4).
GENERAL
Qualifications of a site professional
15(1)Any person who holds themselves out as a site professional or performs the activities referred to in subsection 5.11(2) of the Act shall
(a) be a member, licencee or holder of a certificate of authorization, as defined in the Engineering and Geoscience Professions Act, in good standing and duly authorized to carry on the practice of professional engineering or professional geoscience, and
(b) have at least five years of experience in the investigation, assessment, remediation, monitoring and management of contamination.
15(2)A site professional shall hold and maintain professional liability insurance at all times when
(a) presenting themselves as a site professional,
(b) undertaking or supervising any work as a site professional, or
(c) making a declaration, creating a file or making a certification in the capacity of a site professional.
15(3)The insurance held for the purposes of subsection (1) shall 
(a) indemnify the site professional against any civil liability in the exercise or failure to exercise an activity referred to in subsection (1) in relation to any claim made against the insurer during the coverage period, regardless of the place where the activity was performed or failed to be performed,
(b) provide coverage for a minimum amount of  $2,000,000 per claim and  $2,000,000 in total during the coverage period,
(c) provide continuous coverage in the event of the bankruptcy, insolvency, incompetence or death of the insured during the coverage period, and
(d) provide continuous coverage for at least two years after the site professional ceases to act as a site professional.
15(4)The site professional shall be deemed to hold insurance for the purposes of subsection (2) if the employer of the site professional holds and maintains similar insurance that meets the requirements of that subsection.
Professional seal
16A site professional shall sign and date each document prepared under this Regulation and shall affix their professional seal to the document.
Conditions re an extension of time
17(1)If the Minister grants an extension of time under this Regulation, the responsible party shall comply with the new time limit.
17(2)Any extension of time granted under this Regulation shall be subject to the conditions fixed by the Minister and by ministerial protocol.
Commencement
18This Regulation comes into force on August 1, 2024.
N.B. This Regulation is consolidated to July 30, 2024.