REGULATION 97-133 - CLEAN AIR ACT

Citation............................................................................................................................................... 1

Definitions......................................................................................................................................... 2

Prohibitions respecting construction, modification or operation of a source............................ 3

Exception to requirement to have approval..................................................................................... 4

Application for approval.................................................................................................................... 5

Period of validity of approval........................................................................................................... 6

Renewal of approval.......................................................................................................................... 7

Implication of issuance of approval................................................................................................. 8

Amendments respecting approval..................................................................................................... 9

Cancellation or suspension of approval......................................................................................... 10

Appeal............................................................................................................................................... 11

Notice of violation.......................................................................................................................... 12

Smoke density standards................................................................................................................. 13

Release of smoke............................................................................................................................ 14

Determination of smoke density number...................................................................................... 15

Requirements for performance testing......................................................................................... 16

Performance testing facilities........................................................................................................ 17

Conduct of performance tests........................................................................................................ 18

Open fires......................................................................................................................................... 19

Sulphur content of fuel oil.............................................................................................................. 20

Maximum permissible ground level concentrations.................................................................... 21

Prohibition respecting volatile compounds.................................................................................. 22

Prohibitions respecting gasoline................................................................................................... 23

Application of Part.......................................................................................................................... 24

Classes of sources........................................................................................................................... 25

Determination of classification by Minister................................................................................ 26

Fees................................................................................................................................................... 27

Deeming provision.......................................................................................................................... 28

Repeals............................................................................................................................................. 29

Commencement provision.............................................................................................................. 30

Under section 46 of the Clean Air Act, the Lieutenant-Governor in Council makes the following Regulation:

"averaging period" means the period of time over which an arithmetic mean or geometric mean is calculated, as the case may be;

"fuel" means any form of matter that undergoes combustion oxidation for the generation of energy;

"ground level" includes any elevation above ground where human social or economic activity may occur;

(b) to release into the air a contaminant that was not previously released into the air by the source, or

(c) to do any other thing in relation to the source that, in the opinion of the Minister, would result in an increase in the concentration of a contaminant in the air or the release into the air of a contaminant that was not previously released into the air by the source;

"operator", when used with reference to a source, means the person who controls the operation of a source and includes the occupier of the real property upon or in which the source is located;

"particulate matter" means any material, except water in uncombined form, that is, has been or may become airborne and exists in liquid or solid form at standard conditions;

"performance test" means any testing or sampling performed to determine the release rate or the concentration of any air contaminant from any source, the concentration of a contaminant in the air or any other information that may be relevant in determining the environmental impact of a source;

"source" means any stationary property, real or personal, taken as a whole, that releases or may release any air contaminant;

"standard conditions" means a temperature of 21.0 degrees Celsius and a pressure of 101.3 kilopascals absolute;

"volatile compound" means any substance or combination of substances having a vapour pressure of 10.34 kilopascals absolute or greater under actual handling, transporting or storage conditions.

(a) construct, modify or operate or permit the construction, modification or operation of a source without applying for and obtaining an approval in accordance with this Part, or

(b) if an approval has been issued for a source, modify the source without applying for and obtaining an amendment to the approval, in accordance with this Part.

3(2) No person shall construct, modify or operate or permit the construction, modification or operation of a source except in accordance with the terms and conditions imposed on the approval issued for that source.

3(3) No owner of land shall knowingly permit on the owner's land any construction, modification or operation of any source that is in contravention of this Regulation.

4 Notwithstanding any other provision of this Part, no approval is required for fuel burning equipment in which the fuel burned is No. 2 fuel oil, natural gas, propane, butane or wood and in which the heat input never exceeds 2,700,000 kilojoules per hour.

5(1) An owner or operator who is required to apply for an approval or an amendment to an approval authorizing the construction, modification or operation of a source shall submit an application to the Minister, on a form provided by the Minister, and shall provide such other documentation or information as the Minister may require within the time specified by the Minister.

5(3) After receiving an application for an approval and such other documentation or information as the Minister may require under subsection (1) and after completing any public consultation that may be required under the Act or the regulations, the Minister may, in the Minister's discretion,

(a) issue an approval for the source, subject to such terms and conditions as the Minister may consider appropriate, or

(b) deliver to the applicant a written notice of refusal of the application, with reasons.

5(4) The Minister may issue guidelines for the control of air contaminants at any source and these guidelines may be used in imposing terms and conditions of an approval.

5(5) Without restricting the generality of subsection 15(1) of the Act or of subsection (3), the Minister may refuse to issue an approval if

(a) all facts material to the application for the approval have not been fully disclosed, or

(b) the facts, representations and other information contained in the application for the approval are not true or accurate.

6(1) An approval shall be valid for the period of time, not to exceed five years, that is specified in the approval.

6(2) If no period of time is specified in an approval in accordance with subsection (1), the approval shall be valid for five years.

7(1) Upon the expiry of the time for which an approval is valid, the Minister may, upon application, renew the approval for a further period not exceeding five years.

(a) in the case of a Class 1 approval, at least 240 days before the approval is to expire, and

(b) in the case of any other approval, at least 90 days before the approval is to expire.

7(3) The Minister may abridge a 90 day requirement imposed under paragraph (2)(b).

7(4) Notwithstanding paragraph (2)(a), if on the commencement of this subsection, a Class 1 approval has fewer than 240 days and more than 90 days before it is to expire, an application for its renewal shall be made at least 90 days before the approval is to expire.

7(5) Notwithstanding paragraph (2)(a), the Minister may, until December 1, 2001, extend the period of time imposed under that paragraph by not more than 90 days, if the Minister is satisfied that an applicant requires more time to complete its application.

7(6) A person who applies for a renewal of an approval shall submit the application on a form provided by the Minister, and shall provide such other documentation or information as the Minister may require within the time specified by the Minister.

8 The issuance of an approval for a source does not relieve the owner or operator of the source from compliance with any of the provisions of the Act or the regulations.

9(1) After an application for an approval for a source has been received by the Minister, whether before or after the approval has been issued, the applicant or the holder of the approval, as the case may be, shall forthwith notify the Minister in writing and provide the Minister with the full particulars of any change in the name or mailing address of the owner or operator of the source.

9(2) The persons named as the owner or operator of a source on an application for an approval or on an approval continue to be jointly and severally responsible along with any subsequent owner or operator of the source for any construction, modification or operation of the source until the Minister is notified of a change under subsection (1).

9(3) The Minister may amend an application or an approval in accordance with notice given under subsection (1).

9(4) The holder of an approval may at any time apply to have the terms and conditions imposed on the approval amended and section 5 applies with the necessary modifications to such an application.

10(1) The Minister, if suspending or cancelling an approval under subsection 15(1) of the Act for any reason, shall deliver to the holder a written notice of the suspension or cancellation, with reasons.

10(2) An approval is automatically cancelled by the issuance of a new approval applying to the same source.

10(3) If the Minister suspends an approval under subsection 15(1) of the Act because the holder of the approval has not paid a fee payable under Part V, the suspension shall continue until the outstanding fee has been paid.

11(1) A person who was the holder of an approval that has been cancelled or suspended may appeal the cancellation or suspension as provided for in the Appeal Regulation - Clean Air Act, and may continue to operate the source to which the approval applies in accordance with the approval, during the time that the appeal is being diligently pursued.

11(2) Subsection (1) shall not be construed, in any way, so as to abrogate from the requirement that the person comply with any order made under the Act or the regulations.

12(1) If any term or condition of an approval is violated for any reason, the operator of the source shall give notice of such violation to the Minister immediately, setting out in the notice a description of

(d) any remedial action taken or to be taken to mitigate the effects of, or to prevent a recurrence of, the violation.

12(2) Where any term or condition of an approval has been violated and the Minister has been notified under subsection (1), the Minister, if considering it advisable, may authorize in writing the continuance of the operation of the source for such period of time as the Minister considers reasonable in the circumstances, subject to such terms and conditions as the Minister considers appropriate.

13(1) The Minister shall prepare a chart to be known as the "Smoke Density Chart of the Province of New Brunswick".

13(2) The Smoke Density Chart of the Province of New Brunswick shall be prepared by the recording, in five consecutive areas on the chart, of fine black dots evenly spaced on a white background such that

(a) approximately twenty per cent of the space in the first area is black and shall be known as density Number 1,

(b) approximately forty per cent of the space in the second area is black and shall be known as density Number 2,

(c) approximately sixty per cent of the space in the third area is black and shall be known as density Number 3,

(d) approximately eighty per cent of the space in the fourth area is black and shall be known as density Number 4, and

(e) approximately one hundred per cent of the space in the fifth area is black and shall be known as density Number 5.

13(3) Smoke shall be deemed to be the density and to have the density number of the shade on the Smoke Density Chart of the Province of New Brunswick that is of approximately the same degree of opacity.

14(1) No person, without obtaining the written permission of the Minister, shall cause or permit the release of smoke that has a density greater than density Number 1, except that a person may cause or permit the release of smoke that has a density greater than density Number 1, but not greater than density Number 2, for a period totalling not more than four minutes during any one half hour.

14(2) Notwithstanding subsection (1), where a new fire is started, a person may cause or permit the release of smoke that has a density greater than density Number 2, but not greater than density Number 3, for a period totalling not more than three minutes during each quarter hour period or such other period as the Minister may establish in writing.

14(3) A new fire referred to in subsection (2) shall be brought to normal operation, complying with the provisions of subsection (1), in such time as the Minister establishes in writing.

15 In any prosecution for a violation of any section of this Part, the opinion of an inspector, based on reasonable and probable grounds, shall be conclusive in determining the smoke density number to be assigned to smoke from any source.

16(1) An owner or operator of a source shall conduct performance tests at such times and in such manner as the Minister may in writing direct.

16(2) Without limiting the generality of subsection (1), the Minister may require the operator of a source

(a) to install, maintain in good working order and operate properly devices to measure and record any parameters of the operation of a source or parameters resulting from the operation of a source that are stipulated by the Minister,

(b) to report any measurements obtained under paragraph (a) that the Minister may direct, and

(c) to retain any records obtained under paragraph (a) for the period of time that the Minister may direct.

16(3) The operator of a source shall comply with the requirements of the Minister under subsections (1) and (2).

16(4) The operator of a source shall make any information measured and recorded in accordance with subsections (1) and (2) available in readable form to an inspector at any reasonable time upon the inspector's request.

17 The owner or operator of a source shall provide such performance testing facilities as the Minister may require, including, without limiting the generality of the foregoing,

(c) such electrical and other utilities outlets as may be necessary for the operation of sampling and testing equipment suitable for the source.

18(1) The person conducting any performance tests required under section 16 shall furnish the Minister with a written report of all data obtained during the tests, whether the tests are valid or not, a summary of any operational data and other information relevant to the taking of the tests and any other information required by the Minister.

18(2) A performance test shall be considered valid if it meets the following specifications:

(b) the result of each repetition is within thirty-five per cent of the average of the results of all three repetitions.

18(3) Notwithstanding subsection (2), a performance test may be considered valid if it meets the following specifications:

(b) if the result of one repetition deviates from the average of all three repetitions by more than thirty-five per cent

(i) the excess deviation from the average was due to a specific upset in the operation of the source, and

(ii) the result of each of the other two repetitions is within thirty-five per cent of the average of those two repetitions.

19(1) No person shall burn or permit the burning of any material in an open fire without obtaining the written permission of the Minister.

19(2) Notwithstanding subsection (1), a person may, without obtaining the written permission of the Minister, burn or permit the burning in an open fire

(a) of wood or wood products, if the sole object of the fire is for recreation or for the practice and instruction of firefighters, or

(b) of any other material approved by the Minister, if the sole object of the fire is for the practice and instruction of firefighters.

19(3) Compliance with subsections (1) and (2) does not relieve any person from complying with any requirement of the Forest Fires Act, any regulation made under it or any by-law of a municipality or rural community.

"sell" includes supply, give, barter, exchange or transfer or offer, advertise, keep or expose for sale or supply.

20(2) No person shall burn or sell for burning in the Province, or permit the burning or the sale for burning in the Province of, any fuel oil listed in Column 1 of Schedule A that contains sulphur in excess of the maximum percentage of sulphur content, by weight, set out beside the fuel oil in Column 2 of Schedule A, without obtaining the written permission of the Minister.

21(1) Subject to subsection (2), no person shall release or permit the release of an air contaminant listed in Schedule B so that any of the maximum permissible ground level concentrations listed beside the air contaminant in Schedule B are exceeded.

21(2) No person shall release or permit the release of sulphur dioxide so that any of the maximum permissible ground level concentrations of sulphur dioxide, as set out in Schedule C, are exceeded in Charlotte County, Kings County or Saint John County.

22 No person shall, for commercial purposes, store, handle or transport any volatile compound in any manner other than one approved by the Minister.

23(1) This section applies in each year from the fifteenth day of May to the fifteenth day of September, both days inclusive.

23(2) No person who refines gasoline shall cause or permit gasoline intended for use in the Province as a fuel for motor vehicles to leave the refinery if the gasoline has a vapour pressure greater than 72 kilopascals.

23(3) No person who imports into the Province gasoline intended for use in the Province as a fuel for motor vehicles shall cause or permit the transfer of possession or the transfer from one vessel to another of that gasoline if the gasoline has a vapour pressure greater than 72 kilopascals.

23(4) For the purposes of this section, the vapour pressure of gasoline shall be determined in accordance with the American Society for Testing and Materials method ASTM D5191-96, Standard Test Method for Vapour Pressure of Petroleum Products (Mini Method).

"permitted rate of release" means, in relation to a source, the rate of release from the source permitted by the approval for the source.

(a) to a person who holds an approval for a source, whether the approval was issued before or after the commencement of this Regulation, and

(b) to a person who applies for the issuance, amendment or renewal of an approval for a source, whether the application for the issuance, amendment or renewal of the approval was made before or after the commencement of this Regulation.

24(3) This Part does not apply to an applicant for or the holder of an approval to operate a source if the applicant or holder is a municipality or rural community.

25(1) For the purposes of this Regulation, a source is, subject to subsections (2) and (3), classified as

(a) a Class 1A source, if the source has a permitted rate of release of one or more of the following:

(a.1) a Class 1B source, if the source has a permitted rate of release of one or more of the following:

(ii) sulphur dioxide, exceeding two hundred and fifty tonnes per year but not exceeding one thousand tonnes per year; or

(iii) particulate matter, exceeding two hundred and fifty tonnes per year but not exceeding one thousand tonnes per year;

(b) a Class 2 source, if the source is not classified as a Class 1 source and if it has a permitted rate of release of one or more of the following:

(i) gas, exceeding six hundred actual cubic metres per minute but not exceeding three thousand actual cubic metres per minute;

(ii) sulphur dioxide, exceeding one hundred tonnes per year but not exceeding two hundred and fifty tonnes per year; or

(iii) particulate matter, exceeding one hundred tonnes per year but not exceeding two hundred and fifty tonnes per year;

(c) a Class 3 source, if the source is not classified as a Class 1 or Class 2 source and if it has a permitted rate of release of one or more of the following:

(i) gas, exceeding thirty actual cubic metres per minute but not exceeding six hundred actual cubic metres per minute;

(ii) sulphur dioxide, exceeding ten tonnes per year but not exceeding one hundred tonnes per year; or

(iii) particulate matter, exceeding ten tonnes per year but not exceeding one hundred tonnes per year; or

(d) a Class 4 source, if the source is not classified as a Class 1, Class 2 or Class 3 source and if it has a permitted rate of release of one or more of the following:

25(2) For the purposes of subsection (1), the release of gas solely from the combustion of fuel to generate heat or steam shall not be taken into consideration in determining the permitted rate of release of gas.

25(3) If an approval for a source requires the installation of equipment designed to control, reduce or eliminate the potential release of contaminants other than sulphur dioxide or particulate matter, the source shall

(a) be classified as a Class 1B source, if it would have but for this subsection been classified as a Class 2 source,

(b) be classified as a Class 2 source, if it would have but for this subsection been classified as a Class 3 source, and

(c) be classified as a Class 3 source, if it would have but for this subsection been classified as a Class 4 source.

25(4) The class of an approval issued to an applicant shall correspond to the number by which the source is classified under this section.

26 If a question arises as to the proper classification of a source for the purposes of this Regulation, the Minister shall determine the question and the Minister's determination shall be final.

27(1) Subject to subsection (4), the holder of an approval, whether issued or renewed and regardless of the date of issuance or renewal, shall, on or before the first day of April in each year, pay the following fee:

(ii) from the April 1, 2005, to March 31, 2006, both dates inclusive, $3,000, and

27(2) If an approval is to be issued on a date other than the first day of April, for a source for which an approval has previously been issued, the fee set out in subsection (1) for the class of approval to be issued shall be paid before the issuance, for the issuance, and shall not be prorated, regardless of the date of the issuance.

27(3) If an approval is to be issued on a date other than the first day of April, for a source for which no approval has previously been issued, the fee set out in subsection (1) for the class of approval to be issued shall be paid before the issuance, for the first issuance of the approval but shall be prorated based on the number of days between the date of issuance and the next following thirty-first day of March, inclusive.

27(4) If an annual payment is paid before the first day of April, 1998 for the issuance or renewal of an approval to be valid before, on and after the thirty-first day of March, 1998, the annual payment payable under subsection (1) on the first day of April, 1998 shall be reduced by the portion of the previous payment that related to the portion of a year after the thirty-first day of March, 1998, for which the previous payment was made, prorated based on the number of days in that portion of a year.

27(4.1) If an approval expires on a day other than the thirty-first of March and is not renewed, the holder of the approval shall be entitled to a refund of the fee paid under subsection (1) for the portion of the year between the day after the date of expiry and the next following thirty-first of March, inclusive, prorated based on the number of days in that portion of a year.

27(5) If at any time a source for which an approval has been issued begins to release a contaminant referred to in subsection 25(1) at a rate exceeding the maximum rate specified in that subsection for a source of its class, the holder of the approval shall immediately pay the difference between

(a) the fee paid for the approval under subsection (1) on the previous first day of April, or the fee paid for the issuance of the approval, whichever was paid more recently, and

(b) the fee set out in subsection (1) for an approval of a class that would have permitted the greater rate of release.

27(6) Subject to subsections (3), (4) and (4.1), no fee payable under this section shall be prorated.

27(7) A person who holds more than one approval shall pay the fee under this Regulation in respect of each approval held by that person.

28 An approval issued under New Brunswick Regulation 83-208 under the Clean Environment Act and still in effect on the commencement of this section shall be deemed, with the necessary modifications, to be an approval issued under this Regulation.

Column 1		Column 2
Fuel oils		Maximum percentage of sulphur content, by weight
No. 1		0.5
No. 2		0.5
No. 4		1.5
No. 5		2.0
No. 6b		3.0
No. 6c		3.0

	AVERAGE PERIOD
Contaminant	1 hour	8 hours	24 hours	1 year
Carbon monoxide	35,000	15,000
Hydrogen sulphide	15		5
Nitrogen dioxide	400		200	100
Sulphur dioxide	900		300	60
Total suspended particulate			120	70*

MAXIMUM PERMISSIBLE GROUND LEVEL CONCENTRATIONS OF SULPHUR DIOXIDE IN THE COUNTIES OF CHARLOTTE, KINGS AND SAINT JOHN IN MICROGRAMS PER CUBIC METRE AT STANDARD CONDITIONS

AVERAGING PERIOD

Contaminant

1 hour

8 hours

24 hours

1 year

Sulphur dioxide

450

150