• Development of Brownfield Sites in Nova Scotia
  • March 19, 2012 | Author: Robert G. Grant
  • Law Firm: Stewart McKelvey - Halifax Office
  • One of the goals set out in the Environmental Goals and Sustainable Prosperity Act passed by the Nova Scotia Legislature in 2007 was to develop by 2010 "regulatory tools that use the Framework within the Environment Act to stimulate redevelopment of contaminated land and contribute to economic development while protecting the environment".

    The Environment Act casts a broad net in capturing and imposing liability upon persons for the cleanup of a contaminated site. Persons responsible for a contaminated site under the legislation include not only those who caused or contributed to the release of the substance into the environment but also any owner, occupier, or operator of the site, including previous and current ones anytime after the substance was released onto the contaminated site. Such owners, occupiers and operators may face liability for substantial cleanup costs for a problem which they neither caused nor contributed to and, indeed, may have assisted in ameliorating.

    The prospect of incurring such liability is a significant disincentive to developers acquiring known contaminated sites, remediating them, and redeveloping them. To a certain extent the risks may be managed through careful investigations undertaken by expert environmental consultants and the utilization of tried and proven methods of remediation. There nevertheless remains the risk associated with discovering that the contamination is more widespread than initially thought, that the remediation methods are not as effective as was assumed, or that the regulatory standards for remediation of property for various types of use will become more stringent over time.

    In 2009 the Law Reform Commission of Nova Scotia issued a report titled Contaminated Sites in Nova Scotia. It made a number of recommendations regarding regulatory tools it could use to stimulate redevelopment of Brownfield sites. One of the recommendations was that a property owner who has remediated a Brownfield site in accordance with a remedial action plan as verified by an environmental site professional should be permitted to use the site for approved uses according to the then current standards. The Law Reform Commission also recommended that the developer should receive a release from current and future regulatory liability in relation to the remediated contamination and that this release should remain in effect absent fraud or material lack of disclosure.

    The Nova Scotia government has not yet identified the suite of regulatory tools which it wishes to use to stimulate redevelopment of Brownfield sites. Nova Scotia Environment has, however, recently circulated a draft of the proposed Contaminated Sites Remediation Regulations. The proposed regulations are intended to help stimulate the redevelopment of Brownfield sites consistent with the Environmental Goals and Sustainable Prosperity Act.

    These regulations, as modified and approved by cabinet, are anticipated to be implemented no earlier than January 1, 2012.

    The draft regulations rely heavily upon qualified site professionals to ensure remediation occurs and meets ministerial protocols. Ministerial protocols will establish numeric environmental quality standards for contaminated sites in Nova Scotia. These standards may vary depending upon the intended use of the remediated property.

    The proposed regulations identify two processes for regulating the remediation of a Brownfield site: independent remediation of a contaminated site and declaration of property condition.

    Independent remediation of a contaminated site involves limited participation by Nova Scotia Environment. The person responsible for the contaminated site must ensure that remediation is conducted in accordance with any applicable ministerial protocol and is done under the supervision of a site professional. Nova Scotia Environment is notified in writing before any remedial work is undertaken and within 90 days of completing the remediation. The process concludes with a filing which sets out the type of contamination remediated, the description of the remediation carried out, the applicable numerical remediation levels and the prospective land use for which these remediation levels apply as determined by the site professional following any applicable ministerial protocol. The site professional is required to state that remediation has been completed to the applicable levels and to identify any restrictions on future activities on the site. This notification is filed in the environmental registry.

    The declaration of property condition process is more elaborate and includes greater involvement on the part of Nova Scotia Environment. The declaration of property condition process does, however, provide greater protection to the owners and occupiers of the property and the persons responsible for the contamination.

    The declaration of property condition process is more elaborate and includes greater involvement on the part of Nova Scotia Environment. The declaration of property condition process does, however, provide greater protection to the owners and occupiers of the property and the persons responsible for the contamination.

    Where the declaration of property condition has been accepted for filing in the registry, the Minister may not issue an order requiring the cleanup of contamination released into the environment before the date of the declaration for the Brownfield site against any person who would have been a person responsible prior to the declaration. This protection does not, however, apply if the declaration contains false or misleading information or false or misleading certifications.

    The proposed regulations rely heavily upon environmental site professionals. Accordingly, the regulations define the qualifications for site professionals and impose liability insurance requirements upon the site professionals.

    As Nova Scotia Environment acknowledges in its consultation document, the regulations are not the only steps currently being considered by it to improve contaminated site management in Nova Scotia. Whether the proposed regulations will effect this improvement will depend in some measure upon the implementation of other steps such as the establishment of ministerial protocols for numerical environmental quality standards. The willingness and ability of environmental site professionals to provide the certifications and assurances contemplated in the regulations will be integral to the success of the initiative.

    The encouragement of the redevelopment of Brownfield sites is an important public policy initiative. Brownfield sites are typically located in older parts of the province, often in central areas with full municipal services. Leaving them vacant or under utilized does not promote the most efficient urban design, does not help with the municipal assessment roll, and undercuts the value and attractiveness of surrounding properties.

    It is hoped that the Contaminated Sites Remediation Regulations, if implemented, are complemented by the introduction of other regulatory tools to encourage the development of Brownfield sites.