January 22, 2007

MOE considers reforms to remove barriers to brownfield redevelopment

The Ontario Ministry of Environment (MOE) has served notice of a number of legislative reforms it is considering in order to remove several of the leading barriers to brownfield redevelopment. The proposals would address liability, financing and regulatory process issues that have consistently been raised in connection with Ontario's Brownfields Statute Law Amendment Act, 2001 (the Brownfields Act) and its resulting amendments to the Environmental Protection Act (EP Act) and the Ontario Water Resources Act (OWRA).

Many of the stakeholder concerns have related to uncertainty surrounding the possibility of cleanup orders being issued for a property after a record of site condition (RSC) has been filed for the site. Although the Brownfields Act affords protection against this, the protection is subject to what is known as "RSC re-openers," which stakeholders claim undermines the certainty they need before carrying out the work needed before filing an RSC.

Some of these "re-openers" have to do with: false or misleading information contained in an RSC; off-site migration of contaminants from an RSC property; changes in site use; and failure to carry out a required risk managment measure. The MOE is considering amendments to the legislation to clarify the various provisions.

For example, protection from environmental orders does not apply if an RSC contains false or misleading information. This remains a valid provision, but the MOE recognizes that confusion has arisen about whether it refers to certifications, in addition to other information. The Ministry is considering clarifying the provision to state that it refers to situations where an RSC includes an inaccurate certification.

Protection from orders is also ruled out in cases where historical contamination migrates from the RSC property to another property after the certification date listed on the RSC. The breadth of scope in this re-opener has been the subject of significant concern, together with requests that some limits be put on the scope.

The MOE notes that while off-site migration of contaminants from an RSC site removes protection from orders, this does not automatically mean an order will be issued. It is considering, however, potential legislative changes to this re-opener which would apply only to persons not responsible for causing or permitting the contamination covered by the RSC. The changes would take into account factors such as the level of contamination and the planned use of the RSC property.

Linked to this is the loss of protection from orders as a consequence of failing to carry out a risk management measure required to meet either a certificate of property use or a risk management order. It has been pointed out that an unintended result is that, if a person fails to carry out such a measure and off-site migration of contaminants covered by the RSC occurs, then all persons are at risk of losing their immunity. In such situations, it has been suggested that only the person contravening the risk management or the the certificate of property use order should be at risk of an order to deal with the off-site migration, and the MOE would consider revisions to clarify this re-opener and its interaction with the off-site migration re-opener.

The scope of the re-opener dealing with changes in use of an RSC property has been criticized as being too broad as well. A possible change to this provision would clarify it to ensure that a property owner would not lose protection from orders stemming from land use changes occurring after the sale of the property.

Futher reforms are being considered to improve liability protection relating to rehabilitation abandoned mines, in particular to reduce the risk for "good Samaritans," i.e. individuals or companies who did not previously own a property, but who have volunteered to enter an abandoned site and clean up a specific hazard. Provisions under the EP Act and the OWRA authorizing the MOE to issue orders to a party who has or had management or control of a property have been broadly interpreted by the courts, leaving "good Samaritans" at risk of being ordered to clean up additional hazards they did not cause and were unaware of before they entered the abandoned site.

To address this concern, the province is considering amendments to the Mining Act to establish, by regulation, a regime allowing for the voluntary rehabilitation of Crown-held abandoned mines in Ontario. Such a regime would protect "good Samaritans" from EP Act or OWRA orders relating to historic hazards they did not cause, and would enable the Ministry of Northern Development and Mines to set up a process for reviewing voluntary remediation proposals to confirm that they would meet rehabilitation standards set out in the Mining Act and regulations.

Parties undertaking such voluntary mine site rehabilitation projects would have to meet all applicable standards and would be held responsible for their work, but not for the site's historic contamination not caused by them.

Other revisions and clarifications being considered deal with civil liability protection for municipalities and for properties whose ownership passes to the Crown ("escheats"), as well as improvements to the regulatory framework relating to RSC pre-filing reviews, provisions governing qualified persons, and certain technical amendments.

The full proposal has been posted on the Environmental Bill of Rights registry for a 30-day comment period ending February 15, 2007. It may be viewed on-line at www.ene.gov.on.ca, reference No AF07E0001.

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