The content of Bill 187 was also influenced by the discussions of the Brownfield Stakeholder Group which brings together municipalities, lenders, developers, and professional and environmental organizations to provide advice on brownfield challenges and opportunities.
Proposed Budget Measures and Interim Appropriation Act, 2007 (Bill 187) was posted on the Environmental Bill of Rights Registry (EBR) AF07E001 from January 16, 2007 to February 15, 2007, for a consultation period of 30 days. Approximately 20 written submissions pertaining to Bill 187 were received, from municipalities, lenders, developers and a number of different environmental and professional organizations. All of the written submissions were considered in the finalization of the legislation (Bill 187).
Overall, there was general support for the proposed legislative reforms. Many issues and recommendations raised during the consultation helped to refine the legislative amendments prior to inclusion in Bill 187.
The following is a summary of the comments received:
I. Liability Protection – Regulatory
(a) Protection from Orders after Filing a Record of Site Condition
- General support was expressed for enhancing the protection from orders after filing a Record of Site Condition (RSC). Some stakeholders suggested that further clarification about the scope of RSC reopeners was necessary and that the language be precise.
1. False or Misleading
- Stakeholders were generally supportive of the proposed changes. Some stakeholders suggested clarifying the meaning of “false and misleading.”
Through Bill 187, a new provision was added to the Environmental Protection Act (EPA) to clarify that immunity from Ministry of the Environment orders is lost if the RSC contains either false or misleading information or a false certification statement.
2. Off-Site Migration from RSC Property
- A range of opinions were expressed regarding the initial proposal for off-site liability protection. There was strong support for the proposed off-site migration liability protection from industry, professional organizations, and municipalities. Some environmental organizations were opposed to providing off-site migration liability protection, stating that although this provision may promote brownfield redevelopment, it would be at the expense of allowing the increase of off-site contamination in Ontario. The concern expressed was that the proposal could allow a relatively pristine property adjacent to the RSC property to become contaminated.
There was considerable interest in how this provision would work in practice. Some municipalities requested further clarification on a situation where a RSC does not identify a migrating off-site contaminant because it was not found in the boreholes or ground water testing. It was suggested that the protection from a Ministry of Environment order should be allowed to stay in place if the original RSC filed identified an off-site contaminant, and as long as it is not resulting in any measurable health or environmental impact. The majority of stakeholders requested additional clarity on the term “vicinity” when referring to whether a sensitive property use is within the “vicinity” of a property with a RSC. For example, some stakeholders requested clarity on protection from orders or re-openers of a RSC if an official plan amendment and / or rezoning to a more sensitive use is approved for a property in the vicinity. “Vicinity” will be defined by a future regulatory amendment.
Bill 187 provides that if certain assessments and certifications are made, the limited protection from orders would continue as long as the contaminant moving off-site does not do so at a concentration that exceeds the applicable site condition standards. If there is a “sensitive property use” located or permitted within the vicinity of the RSC property, contaminant movement cannot exceed the site condition standards applicable to the “sensitive property use”. Regulations will define what constitutes a “sensitive property use”.
The standards that apply to the RSC property (and a sensitive use property within the vicinity of the RSC property) are the standards that apply as of the certification date set out in the RSC.
In order to get the benefit of these “rules”, an assessment of the contaminants that are on, in, or under the RSC property must be done, including an assessment of contaminants in ground water in or under the property (to be defined in regulation). The RSC must be certified by the QP who either conducted or supervised the assessment.
Only a non-polluting owner may obtain this protection. Implementation details for this regulatory liability provision will be a matter for future consultation once regulatory amendments are drafted.
3. Change in Use
- There were no substantive comments received regarding the proposal to technical amendments.
Bill 187 implements the amendments proposed in the EBR posting. The EPA has now been clarified that only a person who both causes or permits the change in use and who owned, occupied or had charge, management or control of a property at the time of the change of use.
4. Failure to carry out a required risk management measure:
- A representative from the municipal sector suggested that the province give protection to those situations where there has been a risk assessment and that the legislative regime should provide for the application of criteria that are developed under a risk.
The EPA has been amended to provide that where contravention of
• a Certification of Property Use;
• a risk management measure; or
• a regulation governing disposal of soil, rock or related material from property or the management of soil on, in or under a property for which an RSC has been filed in the Registry,
results in movement of a contaminant from land or water on, in or under the RSC property to another property, only the person contravening loses immunity from certain Ministry of the Environment orders.
b) Risk of Orders Prior to Ownership and the Filing a Record of Site Condition
- There were no substantive comments received regarding the proposal to technical amendments. Bill 187 implements the amendments proposed in the EBR posting.
II. Liability Protection – Good Samaritan Mine Rehabilitation
- The mineral industry expressed some concern given the nature of the ownership of old mining properties that historic links may be found to operating companies. It was suggested that when a connection is present, it should not be available to negate the Good Samaritan efforts entered into in good faith. It was also suggested for the Ministry of Northern Development and Mines (MNDM) to provide approval before the company begins its work on a project as well as include in amendments a provision for MNDM to approve planned work to avoid any comebacks after the project has been completed.
The Good Samaritan amendments will allow mining and exploration companies, and other organizations, to voluntarily rehabilitate specific abandoned mine hazards on Crown-held sites without incurring any additional liability due to other untouched mine features or conditions on the site. These Good Samaritans will have to apply for the Ministry's approval for any given project, and all work conducted must meet the appropriate prescribed standards of the Mining Act. No links exist from these Crown-held sites to any existing companies or owners, so the responsibility for these sites currently lies only with the Province. Any rehabilitation work conducted under the Good Samaritan amendments will improve public health & safety and the environment within Ontario, while also reducing the Province's ultimate abandoned mine rehabilitation costs.
III. Civil Liability Protection – Municipal
a) Municipal Reliance on RSCs
- The professional and municipal sectors were supportive of the proposal to extend immunity to municipalities from civil suits. It was suggested that the province clarify that immunity from civil suits extends not only to municipalities but to other persons associated with building permit and Planning Act approvals such as the Chief Building Official.
Changes have been made so that municipalities and conservation authorities (and their officers, employees and agents) now have immunity from any actions or other proceedings, arising from an inaccuracy contained in a RSC that is filed in the Brownfields Environmental Site Registry, that relate to permits under Section 8 or Section 10 of the Building Code Act, 1992 and the actual or intended execution of powers and duties under the Planning Act, or any Act that is prescribed in regulation.
b) Horizontal Severances
- The majority of stakeholders expressed opposition to the original proposal regarding horizontal severances which would have banned horizontal severances under the Planning Act with the exception of their use in mining. Lenders, professional and environmental organizations identified horizontal severances as an important tool to assist in overcoming the liability barrier to redevelopment. They felt that if too many restrictions were placed on the use of horizontal severances it would impede brownfield redevelopment. Others were concerned that the status quo may allow property owners to avoid responsibility for contamination.
The approach to this issue in Bill 187 was outlined in the Information Notice 0100365. In Bill 187, the province amended the EPA to emphasize that environmental site assessments and records of site condition concern and address the entire column of the property, including that beneath the surface of the property, regardless of the ownership structure of that column.
IV. Civil Liability Protection - Escheats
- The province received no substantive comments on the possible amendments to the Proceedings Against the Crown Act and the Escheats Act, but there was support for the province taking on a greater role with regards to the issues of escheated properties. Bill 187 implements the amendments as originally proposed in the EBR posting.
V. Regulatory Framework Improvements
a) Record of Site Condition Pre-filing Review and Enhanced Quantity
- A range of opinions were expressed regarding this issue. The municipal sector supported the proposed changes while the professional and environmental sector felt that the RSC pre-filing review may cause unintended delays and add greater uncertainty to the process.
The majority of stakeholders suggested the need for a consistent, standardized and streamlined process, using a fairly short review period. There was a suggestion to consistently apply a standard predefined timeframe to the RSC review and audit decision to ensure that the RSC is only acknowledged and posted on the Registry when it is not subject to an audit.
When the new process is implemented, a RSC will be submitted for filing before being “filed” in the Environmental Site Registry.
When a RSC is submitted for filing, an assessment will be made to determine whether all the required documents have been submitted. A notice of receipt will be issued when this is done.
Within a period of time to be set by regulation, the Director must choose to take one of the following actions:
1. Give the owner written notice that the RSC cannot be filed because it has not been completed in accordance with the regulations (so far as this can be determined from the RSC documents).
2. Give the owner written notice that the Director intends to conduct a review in relation to the RSC before the RSC can be filed.
3. Give the owner written acknowledgement, specifying the date that the RSC has been filed in the Registry. (This results in the “filing” of the RSC.)
The details of implementation for an upfront review of RSCs will be a matter for future EBR consultation once the details of regulatory amendments are determined.
b) Qualified Persons
- There was support for the enabling provision to implement a Qualified Persons framework by future regulations in Bill 187.
The EPA has been changed to allow for regulations regarding terms and conditions to be imposed on an approval of a Qualified Person, and for an appeal process to be established, possibly before the Environmental Review Tribunal.
MOE continues to work with stakeholders on this issue. Regulations have yet to be developed.
c) Technical Amendments
- There were no substantive comments received regarding the proposed technical amendments, and Bill 187 implements these minor technical changes.
- In addition to the barriers addressed in Bill 187, some stakeholders proposed that the province continue to address the other additional barriers particularly related to the regulatory process, environmental standards and financial risk they have found in site-specific instances of brownfield transactions.
In consulting on potential legislative changes for Brownfield Reform, the government’s main objective was to address some of the identified liability barriers to brownfield redevelopment for the Crown, municipalities, developers and those engaged in remediation work. Bill 187 and the legislative reform it included for brownfields was an important step for Ontario in encouraging responsible brownfield redevelopment.