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Draft Contaminated Land Law Released The Minister of Municipal Affairs introduced proposed amendments to the Environmental Protection Act, the Municipal Act, the Planning Act and related statutes on May 17, 2001. Bill 56 is called the Brownfields Statute Law Amendment Act, 2001. The government wants to encourage developers, lenders, and municipalities to invest in redevelopment of contaminated land by authorizing financial incentives, limiting certain liabilities and legislating clean-up rules. Will Brownfields Bill Help At All? Yes, to a limited extent. More government involvement in clean-up certification; immunity for owners, developers and occupants from clean-up orders and legislated limitation of liability for lenders should loosen constraints on brownfields redevelopment. However, unlike comprehensive contaminated site schemes in some other jurisdictions, Bill 56 does not limit civil liability. Conservative financial institutions are likely to remain cautious. The Bill authorizes municipalities to employ financial incentives for redevelopment of choice brownfield properties. Improved utilization of existing services, avoidance of sprawl, and enhancements to the future tax base will offset the cost of financial incentives. These incentives are sure to spur at least some redevelopment. Flexibility on tax sales is also a welcome addition for municipalities. If municipalities do not find a purchaser they will have discretion whether to take title. Timing / Complexities Depending on the extent of further public / stakeholder consultation, and on the time to draft and promulgate regulations, the changes could take from many months to years to take effect. An Environmental Site Registry must be designed and established. Regulations governing certification of site assessment and site remediation professionals are less controversial than when the Guideline for Use at Contaminated Sites was developed in the mid 90s. In the interim geoscientists have become a regulated profession. Professional engineering and geoscientist societies are working with MOE to develop regulated standards for “qualified professionals.” The Bill also calls for regulations dealing with disposal of fill. MOE has been struggling inconclusively with an excess soils management policy for a decade. Overview - Three Themes The changes follow three themes: Financial incentives: both municipal and school taxes may be reduced or forgiven; loans and grants will be facilitated under community improvement plan provisions; Limitation of liability from clean-up and cost orders for municipalities, secured creditors, receivers, bankruptcy trustees, fiduciaries and property investigators. The legislation will not limit civil liability; Clean-up certainty: clean-up rules to be enshrined in law and regulation; only “qualified” site investigators and clean-up specialists will be allowed to certify clean-ups and property status; an Environmental Site Registry will record status of site contamination and clean-up. Clean-up - Limiting Developer / Owner / Occupant Responsibility The contaminated site Guideline will be replaced by regulated standards for phase one and two environmental site assessments, clean-up criteria, risk assessments and management and disposal of excess soil and waste. Clean-ups will be “certified” by filing a Record of Site Condition (RSC) in the Environmental Site Registry. The RSC must be certified by a “qualified professional.” Once an RSC is accepted by the MOE and filed with the Site Registry, past, current and future owners and occupiers will be protected from MOE clean-up orders. There are a few caveats, however. The property may be subject to conditions (“certificate of property use”). For stratified clean-ups and risk assessed sites the owner will be required to register a “certificate” against the title (which can later be expunged when the property is fully cleaned). The owner may be subject to an emergency order if contaminants unexpectedly endanger human health, safety or water supplies. Administrative and civil liability for off-site contamination is not limited at all. All risk assessments will have to be accepted by an MOE Director. On the plus side, the Director will have to accept or reject within a deadline established by regulation. There is no provision for appeal a refusal, though regulations may provide for a mediation mechanism. MOE will conduct verification audits to establish quality control over RSCs. To that end MOE inspectors will be given powers of access to property, including power to take samples and dig test pits. Lender, Municipal, Trustee, Investigator Liability For years MOE has entered into standardized agreements with lenders and municipalities to allow preservation of security (both financial and environmental) and site investigation. These conditions will be implemented by legislation. Municipalities will have more flexibility in tax-sale situations. Secured creditors who foreclose will be protected for two years. Financial Incentives - Municipalities Amendments to the Municipal Act and the Planning Act will allow municipalities to reduce or eliminate municipal taxes to assist developers in redeveloping contaminated sites. With the consent of the Finance Minister, the education taxes from the site may also be reduced or eliminated for part of the development period. Community improvement plans can be used to authorize grants or loans to assist in remediation. Financial incentives will be limited to the cost of rehabilitation.