May 21-28, 2007

Stakeholder group completes report on facilitating brownfield redevelopment in New Brunswick

A stakeholder working group set up and headed by the New Brunswick Department of Environment (DENV) has made a total of 24 recommendations for facilitating the remediation and redevelopment of New Brunswick's brownfield properties.

Established in 2004, the New Brunswick Brownfield Development Working Group included representatives from the banking and legal sectors, the petroleum industry and governments (local, provincial and federal).

The recommendations in the Working Group's Final Report address challenges in four main areas: regulation, civil liability, costs, and the role of government. Its proposals have been derived from a review of the most successful approaches currently in place across North America, adapted specifically for New Brunswick.

The section of the report on regulatory challenges outlines a number of deficiencies in this area; it points out that the term "brownfield" does not even appear anywhere in New Brunswick legislation. The current regulatory approach is primarily punitive in nature and, as such, does not encourage reporting of contaminated sites, much less their remediation.

Accordingly, the group recommends legislative changes providing for a non-punitive regulatory approach and appropriate incentives for brownfield redevelopment. This, says the report, could be achieved through a system whereby a site owner or other interested party could undertake voluntary cleanup action, in accordance with a process set out in regulation, in exchange for protection against ministerial orders or other enforcement measures, once the cleanup plan was approved.

The report also points to a lack of regulatory certainty regarding determination of responsible parties, remediation standards, permanent site closure, and transfer of title and removal of encumbrances.

The Working Group calls for legislative amendments to more clearly state who can be held accountable through the regulatory process. In general, says the report, regulatory responsibility should be linked to the actions (or inaction) that caused or contributed to the contamination.

Also recommended is the development of a dispute resolution mechanism in legislation. This would provide a clear approach to be followed in the event of disagreements between the government and parties regarding the existence and extent of regulatory responsibility for a brownfield site.

Regarding remediation standards, the report proposes that the existing site remediation process and guidelines, based on the Atlantic Risk-Based Corrective Action model, be explicitly referenced or incorporated into legislation/regulation as the standard approach to establishing remediation criteria for contaminated sites in New Brunswick. This model and its reliance on a "site professional" to oversee cleanup work, audited by the DENV, has proven successful and should continue, says the Working Group report.

Clarification of reporting requirements is also needed, says the report. Environmental legislation should clearly describe when a person has a duty to report a contaminant release or the discovery of existing contamination to the DENV. It should also list any other persons entitled to be notified.

In the interest of placing brownfield sites on an equal footing with greenfield sites, the group calls on the provincial government to consider measures to create financial incentives relating to site assessment and remediation costs. These could include direct financial assistance, corporate or personal income tax relief with respect to site assessment and remediation expenses (subject to eligibility criteria), and comparable assistance to municipalities for municipally-owned sites.

The report notes that the province has an important role in promoting brownfield remediation and redevelopment-as environmental regulator and as financial facilitator. The government, however, is also a brownfield owner. The Working Group recommends that the province develop an inventory of the brownfield sites for which it is responsible, and that its orphan sites program, in place for more than a decade, be continued.

The report may be viewed on the Atlantic Risk-Based Corrective Action (RBCA) Web site, www.atlanticrbca.com/eng/nb_working_g_brownfield.html.

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