Proposed Changes to the Nova Scotia Environment Act

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Proposed Changes to the Nova Scotia Environment Act

September 6, 2011

By Michael Simms, at McInnes Cooper

Nova Scotia Environment (“NSE”) recently released a discussion paper addressing its suggested changes to the Environment Act, 1994-95, c. 1 (the “Act”).

We are pleased to provide you with this outline of the most significant proposed changes, and our comments regarding how these changes may affect your business. Also note, NSE is accepting comments on its proposals until September 6, 2011.

(1) ALTERNATIVES TO APPROVALS

Currently, all activities regulated under the Act must undergo the same approval process. NSE would like to replace this “one size fits all” method with an approach that recognizes the different levels of risk and complexity associated with different activities. NSE proposes the Act be amended to authorize NSE to develop alternative ways to regulate activities, such as: registrations, notifications, permits, licences, and codes of practice.

If this proposal is implemented, approvals for lower risk activities may be expedited, however, NSE would also have the potential to gain far more discretionary power to create regulatory requirements and compliance obligations.

(2) DEFINITION OF “ADVERSE EFFECT”

As a result of the current definition of “adverse effect” in the Act, NSE has to deal with “nuisance” issues that pose no risk to the environment. NSE suggests changing the definition of “adverse effect” to remove reference to effects on “the reasonable enjoyment of life and property”.

(3) TIMELINES FOR PROCESSING APPROVAL APPLICATIONS

NSE proposes certain approval timelines be eliminated from the Act in favour of “a service standard that provides stakeholders with a reliable expectation of processing times”. This change may result in timelines that are less binding on NSE.

(4) PROCESS FOR ISSUING EMERGENCY ORDERS

Currently, the Act requires NSE to have emergency orders reviewed and signed by the Minister of Environment (the “Minister”). NSE would like to see this requirement replaced with a policy requiring inspectors to inform their supervisors when issuing an emergency order. This approach could result in less ministerial oversight of emergency orders.

(5) DUTY TO REPORT SPILLS OR RELEASES

NSE proposes the current spill reporting requirements be broadened to apply to persons who would tend to become aware of spills or releases during the course of their work, such as consultants. This could have extensive implications for the relationship between consultants and their clients, and would place a new, and potentially burdensome, reporting obligation on persons who may be unconnected with a spill or release.

(6) MINISTER’S ABILITY TO CANCEL OR SUSPEND AN APPROVAL

Currently the Minister can cancel or suspend an approval where an adverse effect has occurred. NSE proposes the Act be amended to allow the Minister to cancel or suspend an approval when the Minister learns there is a likelihood of an adverse effect. Details have not been provided to clarify what type of evidence would be required to prove the “likelihood” of an adverse effect.

(7) AMENDING APPROVALS ISSUED BEFORE 1995

NSE proposes the Act be amended to allow it to review and amend certain approvals issued before 1995. The intent is to bring these approvals up-to-date with current practices and standards. Information has not been provided on what pre-1995 approvals may be targeted or what the timeline for complying with new requirements would be.

(8) DEFINITION OF “SUBSTANCE”

NSE proposes to broaden the definition of “substance” in the Act to capture spills and releases that may not currently be included in the current definition. NSE does not provide information on what types of substances it believes are not currently captured by the definition. Broadening the definition could have implications for businesses that may currently be releasing substances in compliance with the Act and regulations.

(9) ADMINISTRATIVE PENALTIES

NSE is also considering whether the Act should be amended to provide it with the authority to introduce administrative penalties at a future date. Administrative penalties can be a quick and efficient way to deal with minor violations and avoid lengthy proceedings through the court system, that can result in a criminal record. However, administrative penalties can be problematic if they are adopted without appropriate safeguards, such as viable appeal provisions, reasonable limits on fines and a requirement to provide reasons.

CONCLUSION

The NSE discussion paper is conceptual in nature and does not set out specific details of the proposed amendments. As NSE develops the details of its proposals, it will be important for those who are regulated by NSE to review such proposals in detail in order to understand how such changes may affect them, and to raise any concerns they may have with such amendments.

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We want to hear from you: Did we delight you with great service or a timely insight? Did we miss the mark? Are you looking for legal advice? If so, we want to know. Just type a few lines into our form, send an email to client.service@mcinnescooper.com, or call 1-855-622-6668.

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