The enactment of environmental liability legislation presents legislators with a daunting task.

The desire to implement an effective deterrent against environmental transgressions must be tempered with the wish to avoid permanently dissuading any parties from remediating and revitalizing previously contaminated sites.

Provincial legislation, most notably the Environmental Protection Act (the ìEPAî), provide the Director of the Ministry of the Environment (the ìMOEî), upon the recommendation of itís staff, with a multitude of options in terms of the penalties which may be levied in regards to the discharge of environmental contaminants into the environment.

In addition to monetary fines, the MOE may seek a variety of judicial orders enforceable against a broad range of parties addressing the discharge of the contaminant. These include stop or control orders, orders for preventive measures as well as orders requiring site remediation.

The orders extend to bind, not only the owners and previous owners of the source of the contaminant but also to persons who are in occupation of, or had charge, management or control of the source of contamination.

These provisions are of particular concern to lenders who could find themselves obligated to remediate a contaminated site should They take possession of a property upon default~ under their mortgage security.

Recent legislative and regulatory amendments implemented through the Brownfields Statute Law Amendment Act, have sought to encourage the redevelopment of previously contaminated or brownfields sites through the establishment of rules for site assessment and remediation confirmed through the filing of a Record of Site Condition (RSC) in a public registry established by the MOE for such purposes.

By following this procedure and filing the required RSC, interested parties may reduce the potential liability that they could otherwise be exposed to with respect to historical contamination of the property.

An RSC is a certificate compiled by an environmental consultant summarizing the environmental status of the property.

It is compiled following the completion of an environmental audit of the site and, where required, remediation and the analysis of samples taken from the property.

In most instances, the filing of an RSC is discretionary on the part of the landowner; however, in certain circumstances, such as a change of use from an industrial use to residential, it may be mandatory.

Typically, an RSC will include information as to the site description, property ownership and use, site assessment information, the standards, which were applied to the site, certification statements and a description of any site remediation or clean up activities undertaken.

Certification is also obtained from the environmental consultant who undertook the assessment confirming that there is no evidence of any contamination on the property which would interfere with the property use.

Once an RSC has been filed in the Environmental Site Registry, it is conclusive evidence that a qualified person has assessed the property and certified it to meet certain criteria in respect to soil, ground water and sediment standards for a specified proposed use.

As a consequence it provides certain classes of persons with protection from liability arising from orders issued by the MOE with respect to historical contamination of the site.

Those protected include a person who has filed the RSC or any subsequent owner of the property, the occupant of the property at the time of filing, a person who had charge, management or control of the property at the time of filing, or a person who sold the property to a purchaser pursuant to an agreement whereby the purchaser agreed to file an RSC for the property and has subsequently done so. Historically, the potential for significant liability imposed against any party connected with a contaminated property acted as a significant disincentive to the redevelopment of such sites.

There are certain limitations to the protections provided by an RSC.

Specifically, orders may be issued in relation to any new contamination at the property that occurs after the certification date, if contamination from the property has moved offsite subsequent to the date of the RSC or if the property is to be used for a more sensitive use than the intended use as disclosed in the RSC.

The protection will be lost with respect to any possible orders if the RSC is found to contain false or misleading information. The enactment of the Brownfields Statute Law Amendment Act represents an important step towards redressing the historic disincentive to the revitalization of previously contaminated sites.

The use of the RSC and the filing of it in the Environmental Site Registry, form an integral part of the implementation of the policy of encouraging the rehabilitation of these properties so as to facilitate their future productive use.

Time will only tell as to how effective the use of this mechanism will be in furthering this policy.

Chuck Stobie is a commercial real estate lawyer with Keyser Mason Ball, LLP where is practice focuses on real property sales and acquisitions, secured fending, commercial leasing and land use matters. Chuck can be reached at 905-276-0405.

Land-development conference draws whoís who of industry A major land-development conference for realtors, developers and city planners. has been organized for Toronto June 8-9 to discuss early responses and impacts of Ontarioís new Greenbelt and Places to Grow Acts. Organized by Insight Information Co., the event will be held at the InterContinental Toronto Centre on Front Street West. It will bring together hundreds of officials and parties concerned with the new shape of development in the Golden Horseshoe over the next 10 years. Presentations will be made by lawyers, government officials such as Victor Doyle of the Ontario Growth Secretariat, realtors, developers, planners, and politicians such as David Caplan (Minister of the new Public Infrastructure Renewal). See www.insightinfo.com for more information.

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