The Rural Voice, 2004-07, Page 49Agrilaw
Environmental liabilitg - new protection
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul G. Vogel
Under Ontario's Environmental
Protection Act, both current and
former owners of contaminated land
may be held responsible for
environmental impacts and
remediation costs.
Both current owners wanting to
sell the land and prospective
purchasers must be concerned about
trying to limit their future liability.
As a result of amendments to the
Environmental Protection Act
scheduled to come into force October
1, 2004, such persons may now
obtain at least limited protection from
future liability by filing a Record of
Site Condition (RSC) in the new
Environmental Site Registry.
These amendments and related
regulations give effect to provisions
of legislation enacted in 2001 known
as the Brownfields Legislation which
is intended "to encourage the
revitalization of contaminated land".
The RSC is a certification by a
qualified consultant that the
necessary environmental site
assessment of the property has been
completed and that the property
complies with contaminant levels
prescribed by regulation or as
specified in a risk assessment
accepted by the Ministry of the
Environment. Upon filing, the person
who filed the RSC or subsequent
owner of the property is protected
from issue by the Ministry of certain
administrative orders under the Act
which might otherwise be issued to
control, stop or remediate the effects
of prior contamination. However, this
limited protection does not apply to
off-site contamination or in the event
of an emergency resulting from the
prior contamination which endangers
the health or safety of any person.
The RSC must specify the type of
property use for which the record is
filed and the new amendments will
prohibit certain changes of use of the
property, or construction of a
building to be used in connection
with a change of use, unless a Record
of Site Condition has been filed and
the use specified is the new proposed
use of the property. Of particular
interest to farmers, this prohibition on
change of property use unless an RSC
has been filed applies specifically to a
proposed change in use from
industrial, commercial or community
use to agricultural use. Compliance
with these provisions will be
necessary before issue of a building
permit in connection with the new
proposed use.
The limited protection from future
liability afforded by this legislation
and related regulations applies to the
person who filed the RSC,
subsequent owners, and persons who
were in occupation or had charge,
management or control of the
property after filing of the RSC. In
addition, a person selling the property
pursuant to an Agreement of
Purchase and Sale which includes
provision for filing by the purchaser
of an RSC will obtain this statutory
protection upon the filing of the RSC
by the purchaser in accordance with
the agreement. • However, the RSC
does not protect past, current or
future owners from criminal or civil
liability resulting from contamination
of the property.
Owners and prospective
purchasers of contaminated property
should be aware of these new
provisions. Although subject to
significant limitations, these new
provisions offer at least some
limitation with respect to future
environmental Iiability.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley LLP. Paul
G. Vogel, a partner in the firm,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance. The
opinions expressed are not intended
as legal advice. Before acting on any
information contained in this column,
readers should obtain legal advice
with respect to their own particular
circumstances and geographical
area.
LESLIE HAWKEN
& SON
Custom Manufacturing
LIVESTOCK & FARM EQUIPMENT
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For the best quality and
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Jim Hawken
RR #3 \Iarkdale 519-986-2507
JULY 2004 45