Legislative Brownfield Reform
On May 17, 2007, the Ontario government passed the Budget Measures and Interim Appropriation Act, 2007 (Bill 187). The omnibus bill made amendments to a number of statutes, including a package of amendments designed to address identified barriers to brownfield redevelopment.
The National Round Table on the Environment and the Economy describes a brownfield as an “abandoned, vacant, derelict or underutilized commercial or industrial property where past actions have resulted in actual or perceived contamination and where there is an active potential for redevelopment.” Brownfield lands may need to be cleaned up before they can be redeveloped.
Redevelopment of brownfield sites benefits the environment by improving soil, water and air quality. The re-use of these sites also contributes to urban revitalization and curbs sprawl that would otherwise consume valuable green space, including agricultural lands. It is estimated that for every hectare of brownfield land used for redevelopment, 4.5 hectares of greenfield land are saved.
In November 2001, the Ontario government took the first step in a lengthy process to revise the province’s brownfield law and policy regime with the enactment of the Brownfield Statute Law Amendment Act, 2001 (BSLAA). The purpose of the BSLAA, which incorporated amendments to seven different provincial statutes, was to encourage redevelopment of brownfield lands in Ontario by providing: clear site assessment and remediation requirements; environmental liability protection for those involved in brownfield redevelopment; and planning and financial tools to facilitate the brownfield redevelopment process.
In 2004, the Record of Site Condition regulation (O. Reg. 153/04), made under the Environmental Protection Act (EPA), came into force. A Record of Site Condition (RSC) is a document prepared by a “qualified person” (QP) and filed with the Ministry of the Environment (MOE) to certify that a property has been assessed and meets the soil and groundwater standards applicable to the proposed use of the property. O. Reg. 153/04 sets out the details of the RSC process, including: site assessment requirements; who may be a QP; remediation standards and methodology; and requirements for completing and fling RSCs on the Environmental Site Registry (ESR). When it came into full effect on October 1, 2005, O. Reg. 153/04 completed the implementation of the brownfield regime established by the BSLAA.
2007 Brownfield Legislative Reform
Despite the progress achieved with the BSLAA, the government has acknowledged that issues relating to liability, financing and the regulatory process continue to act as barriers to brownfield redevelopment. The Bill 187 amendments, passed in May 2007, implemented components of brownfield legislative reform relating primarily to liability and regulatory framework issues, some of which are described below.
Amendments Related to Liability
Protection from Orders After Filing an RSC: Filing an RSC on the ESR affords a degree of immunity from environmental orders. However, the protection of an RSC may be lost in specified circumstances, which are commonly referred to as “RSC re-openers.” Stakeholders argued that the broad scope of RSC re-openers created uncertainty about the liability risks of brownfield redevelopment. Bill 187 made several amendments to narrow the scope and application of RSC re-openers.
Liability Protection for Those Undertaking Remediation Work: Before Bill 187, a person who conducted a site investigation at a property was not, for that reason alone, subject to specified environmental orders relating to the property. Bill 187 extended this provision to apply to those undertaking remediation work at a property as well.
“Good Samaritan” Mine Rehabilitation: Amendments to the Mining Act provide protection from specifed environmental orders for those who voluntarily rehabilitate abandoned mine hazards on Crown lands.
Municipal Reliance on RSCs: Amendments to the EPA provide municipalities and conservation authorities with immunity from civil liability for relying on, in the exercise of their powers, inaccurate RSCs filed on the ESR.
Horizontal Severance: Horizontal severance has been used as a tool to sever the surface of a property from the land below, thus protecting a purchaser of the surface land from liability for historic subsurface contamination. In response to concerns that horizontal severance was being used to avoid responsibility for cleaning up contaminated lands, the proposal notice originally proposed to ban horizontal severances. However, as a result of strong stakeholder opposition, Bill 187 instead amended the EPA to require environmental site assessments conducted under the brownfield regime to address the “land or water on, in or under the property,” thus capturing both surface and severed subsurface parcels, regardless of legal ownership.
Escheats: Amendments to the Proceedings Against the Crown Act and the Escheats Act alleviate liability and economic risks to the Crown that may arise in taking action to address contamination on escheated (abandoned) properties.
Amendments to the Regulatory Framework
RSC Pre-filing Review: Before Bill 187, any MOE audits of RSCs were conducted after an RSC was already filed and posted on the ESR. This led to concerns that planning and development approvals or financing could be delayed indefinitely, even after an RSC was filed, if that RSC was later audited by MOE. To respond to these concerns and concerns about the quality of information contained in RSCs, amendments to the EPA created a new two-step RSC process – yet to be implemented, as of August 2008 – that will require an RSC to be “submitted for fling” before it is filed. RSCs that do not meet regulatory requirements will not be filed. RSCs that, following a discretionary pre-fling review by the Director, contain prescribed defects, will not be filed on the ESR until the Director is satisfied that there is no longer a defect.
Qualifed Persons (QPs): Bill 187 amends the regulation-making authority under the EPA to support potential changes to the QP regime, including prescribing an approval process for QPs and providing for revocation or suspension of approvals and a corresponding appeal process.
Other Amendments: Bill 187 made additional amendments to the EPA related to correction of errors in an RSC, types of notices to be filed on the ESR, and RSC report retention requirements, among other things.
In addition to the regulatory changes made by Bill 187, amendments to O.Reg 153/04 were put in place on April 1, 2008 to further define professional requirements for QPs. (For more detail, please see 2007 Review of components for legislative brownfield reform.)
The key challenge underlying brownfield law and policy-making is the need to strike a balance: eliminating obstacles to brownfield projects, while still protecting the environment and the broader public interest. Overall, the ECO believes that Ontario’s efforts to revise and refine its brownfield laws and policies through Bill 187 strike this balance.
The ECO is pleased that the government is taking steps to further reduce the liability burden on those involved in brownfield redevelopment. The ECO has noted specifically the need to minimize liability risks associated with off-site migration of historical contamination after an RSC is filed. These amendments significantly narrow the application of RSC re-openers to cases where there is risk of harm to the environment or surrounding property uses, and also make a greater distinction between polluters and non-polluters. However, Bill 187 did nothing to relieve civil liability risks, referred to by some as the “liability chill,” for proponents of brownfield redevelopment.
The ECO questions whether the amendments aimed at preventing abuse of horizontal severances will benefit the environment. Horizontal severance was a tool that innocent purchasers could use to redevelop brownfield lands without assuming liability for subsurface contamination that they did not cause. While the ECO supports the government’s efforts to ensure that horizontal severances are not used to avoid responsibility for cleaning up contaminated lands, the ECO is concerned that the ultimate effect of these amendments may simply be that fewer brownfield sites will be returned to productive use.
The ECO is pleased that the quality and scope of information to be posted on the ESR will be enhanced through the RSC pre-filing review process, corrections to RSCs and notices posted by the Director. It is important for Ontarians to have access to the best available information on the state of properties for which RSCs are filed.
Finally, development of an RSC pre-filing regime that enhances confidence and predictability in the process is commendable. Whether the new regime will accomplish its intended purpose will depend on the details of its implementation, particularly those related to timeframes and deadlines. The ECO is concerned that the new regime, which will more closely resemble other MOE approval processes, will result in delays to RSC flings unless MOE has adequate resources available to efficiently and effectively administer the process.
For a more detailed review of this decision, see 2007 Review of components for legislative brownfield reform.
|This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Legislative Brownfield Reform." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 111-115.