Law Times

Law Times • march 30, 2009 FOCUS PAGE 11 Rules updated regarding vacant or underused properties BY GLENN KAUTH Law Times T he tal protection, but developers and some lawyers dealing with vacant and underused properties argue they're too stringent. "I used to live in China- rules on brownfield sites offer better environmen- province says new The concern stems from pro- posed amendments to brown- field regulations in the Ontario Environmental Protection Act. Among the changes is a re- town. I have no doubt that where I used to live would now be deemed contaminated," says Harry Dahme, a senior partner in the environmental law group at Gowling Lafleur Henderson LLP in Toronto. allow for redevelopment. But a risk assessment that looks at the intended uses of the property can result in the application of less stringent standards, Dahme notes. That's because a property slated for industrial use doesn't have to be as clean as a residen- tial site, for example. As well, should it be paved, the risk of human exposure to soil pollutants is less, which also means lower standards may apply. The new rules, in fact, allow cedure could simply encourage developers to pave their proper- ties so a less stringent standard applies. Part of the goal of brownfield regulations, of course, is to curb sprawl by encouraging develop- ers to build infill projects in ex- isting urban areas rather than on the suburban edge. Besides the brownfield rules, because already secured a record of site condition for it, the new stan- dards would likely deem it con- taminated and therefore make the homes difficult to sell. So far, of course, the stan- while the owner has vamped process for getting what's called a record of site condition that certifies a property as clean as well as enhanced liability pro- tection for property owners. But most controversial are new soil and groundwater standards for a host of chemicals. They would determine whether a property is contaminated or not. "The amendments are being for an alternative risk assessment process that more easily takes into account those mitigating factors, the government points out. For Dahme, that's a welcome option, especially since the standard pro- cedure can take up to two years and $200,000 to complete. But, he argues, the alternative is of limited benefit since it only ap- plies to certain chemicals. "I think the ministry has put the government has also estab- lished its greenbelt in order to contain development. But now, both Willms and Dahme worry the new rules will hinder that goal by making it too difficult and expensive for developers to build on brownfields. "It's going to put huge pres- dards remain a proposal. Public comments on them closed in February, and now the govern- ment is reviewing them, Jordan points out. But for Dahme, the need to a lot of faith in the [new] model. But the question is: Is that really going to make a difference?" he asks, adding the modified pro- proposed to encourage brown- field redevelopment," says Kate Jordan, a spokeswoman for the Ministry of the Environment. In particular, she says they will make procedures more efficient as well as help property owners who take over abandoned land by boosting their protection from sure on the greenbelt," says Willms, adding that he believes the regulations will be particu- larly onerous in small cities. "It's going to affect the ability of the small urban centres to revitalize their downtowns." Willms also says that while the enhanced protection from li- ability is welcome, it is of limited use since it covers only regula- 'The [ministry] is looking for absolutely zero risk,' says John Willms. tory, and not civil, actions. Dahme, meanwhile, says that he has one client whose town- house redevelopment is at risk should the proposed new stan- dards come into effect. That's reconsider the standards is urgent since they have the potential to inadvertently make large swaths of land in older sections of cit- ies contaminated and therefore much more difficult to sell and redevelop. That's because many properties had prior uses that may have left some chemicals. As well, even background pollution dating from the days people drove cars with leaded gas can affect surrounding homes. "We need to achieve a balance between being overly protective and the need continue economic Dahme says. activity," LT to regulatory prosecution when contaminates leak off-site. The new pollution standards, she adds, were based on science and aim to improve environ- mental safeguards. "We have actually updated those standards to make them more protective of human health and the environment." But, says Toronto environ- mental lawyer John Willms, the standards go too far. "The [min- istry] is looking for absolutely zero risk," says Willms, a senior partner with Willms and Shier Environmental Lawyers LLP. "That seems to be their only guiding principle in setting these standards. This is an exercise in beefing up standards that don't need beefing up." For Dahme, while strict stan- dards are sometimes necessary, he argues some of the proposed rules are beyond reasonable. "Some of the numbers are CRITICAL INSIGHT ON ENVIRONMENTAL LAW NEW THE ELECTRICITY INDUSTRY IN CANADA GOWLING LAFLEUR HENDERSON LLP – NATIONAL ENERGY AND INFRASTRUCTURE INDUSTRY GROUP Featuring expert analysis by Canada's leading energy law firm, this unique work covers topics such as constitutional jurisdiction; nuclear and environmental regulation; taxation; real estate; import, export and sale of electricity; and conservation and demand management. It also includes the full text of all relevant provincial and territorial statutes and regulations. 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