CHAPTER 12 Environmental Law and Indigenous Rights
The EPA provides some limited protection from statutory liability. If appropriate investigations and remedial work are conducted and a record of site condition (RSC) is filed, the owner or operator is protected from regulatory action with respect to contaminants identified in the RSC (except when contamination migrates from the site or the regulator believes there is a danger to health or safety). It is also obligatory to file an RSC when a change to a more sensitive property use is planned. Québec’s Environment Quality Act (EQA) also subjects polluters to land characterization and rehabilitation obligations upon the issuance of an order from the minister responsible for the EQA. Such an order may also, in some circumstances, be made against any person who has or had “custody” of a contaminated site (e.g., owner, tenant, operator or secured creditor taking possession of a site), even if such person did not cause the contamination. Moreover, under both the EQA and the Civil Code of Québec , land rehabilitation can also be required if the discharge of a contaminant is ongoing or if there is off-site migration. Land characterization and rehabilitation obligations can also be triggered, even in respect of contamination caused by others, by ceasing to carry on certain regulated industrial activities, or by carrying on different activities from those previously carried on at a site. Except for the above situations, there is generally no positive statutory obligation in Québec to clean up historical contamination. In many instances, land rehabilitation in Québec must be undertaken through approved rehabilitation plans and may provide for land-use restrictions. Such land- use restrictions must be registered against the land and are binding on any subsequent purchaser of the land.
Notices of contamination and decontamination may also need to be registered against the land. Furthermore, notices to owners of adjacent lands and to the minister responsible for the EQA may be required, particularly if certain types of contaminants are found at the boundaries of a contaminated site in concentrations exceeding the regulatory limits, or if there is a serious risk of off-site contamination. Both Ontario and Québec have implemented programs aimed at tracking the movement and disposal of contaminated soil within their respective provinces. While such programs are intended to increase transparency and ensure the proper management and disposal of contaminated soil, they have also resulted in higher transportation and disposal fees, which should be taken into consideration prior to undertaking any brownfields redevelopment project.
Both Ontario and Québec have implemented programs aimed at tracking the movement and disposal of contaminated soil within their respective provinces.
117
Davies | dwpv.com
Powered by FlippingBook