3rd Session, 43rd Legislature

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Bill 18

THE WASTE REDUCTION AND PREVENTION AMENDMENT ACT (STRENGTHENING ENFORCEMENT)

(Assented to                                         )

HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. W40 amended

1   The Waste Reduction and Prevention Act is amended by this Act.

2   The centred heading "INTRODUCTORY PROVISIONS" is added before section 1.

3(1)   Section 2 is amended

(a) by renumbering it as subsection 2(1);

(b) in the definition "environment officer", by striking out "subsection 7(2)" and substituting "section 7"; and

(c) by adding the following definitions:

"compliance order" means an order issued under section 17.2; (« ordre d'observation »)

"court" means the Court of King's Bench; (« tribunal »)

"department" means the department of government over which the minister presides; (« ministère »)

"director", except in section 21, means the person designated as the director under subsection 6.1(1); (« directeur »)

"operator of a stewardship program" means a person that operates a stewardship program for a designated material that has been approved by the minister in accordance with the regulations; (« administrateur d'un programme de gestion »)

"regulated party" means

(a) the owner of a Class 1, Class 2 or Class 3 waste disposal ground and any person retained by the owner to operate the waste disposal ground,

(b) the steward of a designated material,

(c) the operator of a stewardship program for a designated material, and

(d) a person or class of persons prescribed by regulation; (« personne réglementée »)

"steward of a designated material" means a person who is determined to be a steward of a designated material under the regulations; (« gestionnaire »)

"stewardship program" means a program that meets the requirements established by regulation that is designed to reduce or prevent waste generated by a designated material by mandating the recycling of the designated material or ensuring the safe disposal of the designated material if it cannot be recycled at the end of its life cycle; (« programme de gestion »)

"waste reduction and prevention program" includes a stewardship program for a designated material; (« programme de réduction du volume et de la production des déchets »)

3(2)   The following is added as subsection 2(2):

Interpretation — classes of waste disposal ground

2(2)   For the purpose of this Act and the regulations, a Class 1, Class 2 or Class 3 waste disposal ground is a waste disposal ground of that class as determined by regulation under The Environment Act.

4   The centred heading "ADMINISTRATION" is added before section 3.

5   The following is added after section 3:

Delegation of minister's powers

3.1   The minister may, in writing, delegate to the director or any other employee of the department any duty or power conferred on the minister under this Act or the regulations.

6   The following is added as section 6.1:

Director

6.1(1)   The minister must designate an employee of the department as director for the purposes of this Act.

Role of director

6.1(2)   Under the general direction of the minister, the director is responsible for the following:

(a) the general administration and enforcement of this Act and the regulations;

(b) exercising the powers and performing the duties of the director under this Act and the regulations;

(c) advising the minister respecting the administration of this Act and the regulations;

(d) performing any other duties assigned by the minister.

7   Section 7 is replaced with the following:

Environment officers

7(1)   The minister may appoint a person or a class of persons as environment officers for the purpose of enforcing this Act and the regulations.

Identification

7(2)   The director must provide an environment officer with an identification card, and an environment officer exercising a power under this Act or the regulations must produce their identification card on request.

8   The centred heading "LEVIES" is added before section 12.

9(1)   The following is added after subsection 14.1(3):

Debt due to government

14.1(3.1)   The levy is a debt due to the government if it is not paid within the time required under subsection (3).

9(2)   Subsection 14.1(5) is repealed.

10   Section 17 is replaced with the following:

INSPECTIONS

Inspections

17(1)   For the purpose of determining compliance with this Act and the regulations, an environment officer may, at any reasonable time and without a warrant,

(a) enter any land, building, structure or premises of a regulated party; and

(b) subject to subsection (2), enter any other premises or place where the officer has reasonable grounds to believe that records or things relevant to the administration or enforcement of this Act or the regulations are kept.

Authority to enter dwelling

17(2)   An environment officer may not enter a dwelling to conduct an inspection without the consent of the occupant or under the authority of a warrant.

Assistance during inspection

17(3)   When conducting an inspection, an environment officer may be accompanied by a person having special, expert or professional knowledge of any matter relevant to the inspection. The person in charge of the premises or place being inspected must permit that person to re-enter the premises or place alone to perform functions specified by the officer.

Inspection powers

17(4)   When conducting an inspection, an environment officer and any person accompanying the officer may bring such equipment and materials that they require and

(a) carry out any inspection, examination, audit or test they consider necessary;

(b) examine any records or other documents to verify the accuracy or completeness of any information provided to the director, an environment officer or the department; and

(c) take photographs or other video recordings of a place or premises or any thing located in it.

Assistance

17(5)   The person in charge of the premises or place being inspected or having custody or control of the relevant records or things must

(a) produce or make available to the environment officer or the person accompanying the environment officer all records, documents and other things they require for the inspection; and

(b) answer any questions and provide any assistance or additional information relevant to the inspection.

Electronic records

17(6)   To inspect records that are maintained electronically at the premises or place being inspected, an environment officer may require the person in charge of the premises or place or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.

Copies may be made

17(7)   An environment officer may use equipment at the premises or place being inspected to make copies of relevant records and may remove copies from the premises or place for further examination.

Records may be removed to make copies

17(8)   An environment officer who is not able to make copies of records being inspected may remove the records from the premises or place to make copies. The officer must make copies as soon as practicable and return the original records to the person, premises or place from which they were removed.

Copies as evidence

17(9)   A document certified by the director or an environment officer to be a printout or copy of a record or other document obtained under this Act

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record.

Warrant to enter and inspect

17.1(1)   A justice, upon being satisfied by information on oath that

(a) an environment officer has been refused entry to any premises or place to carry out an inspection; or

(b) there are reasonable grounds to believe that

(i) an environment officer would be refused entry to any premises or place to carry out an inspection, or

(ii) if an environment officer were to be refused entry to any premises or place to carry out an inspection, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;

may, at any time, issue a warrant authorizing an environment officer or any person named in the warrant to enter the premises or place and carry out an inspection.

Application without notice

17.1(2)   A warrant under this section may be issued upon application without notice.

11   The following is added as sections 17.2 to 17.7:

COMPLIANCE ORDERS

Compliance order

17.2(1)   An environment officer who determines that a regulated party has contravened a provision of this Act or the regulations may issue a written order requiring the regulated party to remedy the contravention.

Contents of compliance order

17.2(2)   The compliance order must

(a) identify the regulated party that is the subject of the order;

(b) describe the contravention to which the order relates;

(c) inform the regulated party what must be done to comply with the order;

(d) specify the time period within which the regulated party must comply with the order;

(e) inform the regulated party that they may be required to pay an administrative penalty if they fail to comply with the order;

(f) state that the regulated party may request a review of the order by the director under section 17.3; and

(g) specify the date the order is made.

Request for review

17.3(1)   A regulated party may request a review of the compliance order by the director. The request must be made in writing to the director and must set out the reasons for the request.

Time limit for requesting review

17.3(2)   A compliance order is final and binding on a regulated party if the director does not receive a request for review within 14 days after the compliance order is issued.

No hearing required

17.3(3)   The director is not required to hold a hearing when reviewing a compliance order but the regulated party must be given an opportunity to make written submissions respecting the order.

Stay pending review

17.3(4)   A request for review operates as a stay of the compliance order pending the outcome of the review.

Decision on review

17.3(5)   On review, the director may confirm the compliance order, revoke it or vary it in any manner the director considers appropriate.

Notice of decision

17.3(6)   The director must give the regulated party notice of the director's decision on the review within seven days after the decision is made.

ADMINISTRATIVE PENALTIES

Notice of non-compliance to director

17.4(1)   An environment officer who is of the opinion that a regulated party has failed to comply with a compliance order must give evidence of the non-compliance to the director.

Administrative penalty

17.4(2)   If the director is of the opinion that a regulated party has failed to comply with a compliance order, the director may issue a notice in writing requiring the regulated party to pay an administrative penalty in an amount determined in accordance with the regulations.

Maximum penalty

17.4(3)   An administrative penalty must not exceed $10,000.

When penalty may be imposed

17.4(4)   A notice of administrative penalty may be issued

(a) only after the period for requesting a review of the compliance order has expired; or

(b) if a request for review of the compliance order has been made, only after the director has made a decision confirming the compliance order.

Content of notice

17.4(5)   The notice of administrative penalty must set out the following information:

(a) the name of the regulated party required to pay the penalty;

(b) the compliance order with which the regulated party failed to comply;

(c) the amount of the penalty;

(d) when and how the penalty must be paid;

(e) a description of how to appeal the penalty under section 17.5;

(f) any other information prescribed by regulation.

Appeal

17.5(1)   A regulated party may appeal an administrative penalty by filing a written notice of appeal with the minister within 30 days after the notice of administrative penalty was issued.

Grounds for appeal

17.5(2)   An appeal may be made on one or more of the following grounds:

(a) that the finding of non-compliance with the compliance order was incorrect;

(b) that the amount of the administrative penalty was not determined in accordance with the regulations;

(c) that the amount of the administrative penalty is not justified in the public interest.

Decision

17.5(3)   On hearing the appeal, the minister may confirm, revoke or vary the notice of administrative penalty.

Stay

17.5(4)   An appeal operates as a stay of the administrative penalty pending the outcome of the appeal.

Notice of decision

17.5(5)   The minister must give the appellant notice of the decision on the appeal within seven days after the date of the minister's decision.

Payment

17.6(1)   Subject to an appeal, a regulated party required to pay an administrative penalty must pay it within 30 days after the date on which the notice is issued to the regulated party.

Debt due to government

17.6(2)   The amount of the administrative penalty is a debt due to the government if it is not paid

(a) within 30 days after the notice of the administrative penalty is issued to the regulated party; or

(b) if the penalty is appealed, within 30 days after the appeal is decided, if the penalty is confirmed on appeal.

Certificate registered in court

17.6(3)   The director may certify a debt referred to in subsection (2), or any part of the debt that has not been paid. The certificate may be registered in court and, once registered, may be enforced as if it were a judgment of the court.

No offence to be charged if penalty is paid

17.6(4)   A person who pays an administrative penalty under this section may not be charged with an offence respecting that failure unless the failure continues after the penalty is paid.

AUDITS

Audits

17.7(1)   The director may issue a written direction to the operator of a stewardship program that requires the operator to retain, at the operator's expense, an independent auditor to perform an audit on specified matters respecting the operator or the operation of the stewardship program.

Duties of operator

17.7(2)   The operator of a stewardship program who receives a direction under subsection (1) must

(a) retain an auditor with the qualifications specified by regulation;

(b) provide the auditor with access to all records, documents and things that the auditor requires to conduct the audit; and

(c) provide any assistance or additional information that the auditor requires in relation to the audit.

Audit requirements

17.7(3)   The auditor retained by the operator of a stewardship program must conduct the audit in accordance with the regulations and submit a report to the director on the findings of the audit before a deadline specified by the director.

12   Sections 18 and 18.1 are repealed.

13   Section 19 is replaced with the following:

OFFENCES AND PENALTIES

Offences

19   A person is guilty of an offence who

(a) contravenes a provision of this Act or the regulations;

(b) fails to comply with a compliance order;

(c) knowingly makes a false statement to the director, an environment officer or any other person acting under the authority of this Act;

(d) knowingly makes a false statement or provides false information in an application, report, return, plan or other document required under this Act or the regulations; or

(e) hinders, obstructs or interferes with, or attempts to hinder, obstruct or interfere with, the director, an environment officer or any other person acting under the authority of this Act.

14   The following is added after section 21:

Time limit for prosecution

21.1   A prosecution for an offence under this Act must not be commenced more than two years after the day on which evidence sufficient to justify a prosecution for the offence came to the knowledge of an environment officer. The certificate of the environment officer as to the day on which the evidence came to their knowledge is evidence of that date.

15   The following is added as section 21.2:

PUBLIC INFORMATION

Information posted on government website

21.2(1)   The director must post the following information on a government website:

(a) a copy of each proposed stewardship program for a designated material;

(b) a copy of each approved stewardship program for a designated material along with the minister's approval;

(c) notice of the suspension or cancellation of a stewardship program approval;

(d) information about a regulated party specified by regulation;

(e) such other information as the minister may direct.

Information respecting compliance actions

21.2(2)   The director may also post on a government website such information about inspection, compliance and enforcement actions taken in relation to a regulated party as the director considers appropriate. This information may include details of compliance orders, administrative penalties and penalties imposed for contraventions of this Act or the regulations.

16   The centred heading "REGULATIONS" is added before section 22.

17   Subsection 22(1) is amended

(a) by adding the following after clause (b.1):

(b.2) prescribing persons or classes of persons as regulated parties;

(b.3) determining the stewards of designated materials;

(b) by adding the following after clause (w):

(w.1) prescribing the manner in which compliance orders and notices of administrative penalties may be issued to a regulated party;

(w.2) respecting administrative penalties for contraventions of compliance orders, including regulations

(i) prescribing the form and content of notices of administrative penalties, and

(ii) respecting the determination of the amounts of administrative penalties, which may vary according to the nature or frequency of the contravention and whether the subject of the penalty is an individual or a corporation;

(w.3) respecting audits required under section 17.7, including requirements respecting the conduct of audits and the qualifications of auditors;

(c) by adding the following after clause (bb):

(bb.1) specifying information about regulated parties to be made public under section 21.2;

18   The centred heading "GENERAL PROVISIONS" is added before section 24.

Coming into force — royal assent

19(1)   Subject to subsection (2), this Act comes into force on the day it receives royal assent.

Coming into force — proclamation

19(2)   Sections 11 and 15 and clause 17(b) come into force on a day to be fixed by proclamation.