Last November, Quebec introduced Bill 156 to significantly revise the existing regime for the management of contaminated land and associated remedial liability. Currently, the “polluter pay” principle is in effect and the limited scope of liability is quite different than what’s found in other provinces, where liability is imposed on a broad range of parties. Bill 156 expands the scope of liability from the polluter to persons who have or had ownership, custody or control of the contaminants.
The bill provides the Quebec Minister of the Environment with the power to order a rehabilitation plan. The plan must specify remedial actions and a schedule for implementation.
As in many other provinces, generic criteria for various contaminants in soil and groundwater are found in government policy. Such policy usually does not have the force of law. Quebec’s Bill 156 proposes to regulate levels of contaminants, giving legal force to these numerical limits. The ability of the government to issue an order is triggered if the level of contamination exceeds that found in the new regulation.
The issue of whether to include generic criteria in regulations or simply list them in guidelines or policies has long been a source of debate, and there are advantages and disadvantages to each method. One of the advantages of including numerical limits is that it adds certainty and consistency to assessments. The disadvantage is that it eliminates flexibility.
Under Bill 156, the minister may issue an order where contamination may have an impact on life, health, safety, welfare or the comfort of human beings or other living species, the environment or property, even if the level does not actually exceed the prescribed regulatory values. While critics have indicated this is an extremely onerous regime, it should be noted that the ability to issue orders under these circumstances also exists in several other provinces. For example, in Ontario, the subjective “adverse effect” clause enables regulatory authorities to request remedial action.
Off, damn spot
Where levels of contaminants exceed regulatory values, Bill 156 provides that a Notice of Contamination must be registered in the land registry office. Once the property has been remediated, one can apply to the land registrar for a Notice of Decontamination. The original notice is not struck from the register.
The minister must also approve changes in land use where contamination exceeds the prescribed regulatory values. If the intent is to leave contamination in excess of such values on the property, then any change in land use is subject to public consultation prior to approval. The bill also requires that each municipality maintain a register of contaminated properties. Such information must be taken into consideration before approval of subdivision or construction permits.
Love thy neighbour
Another interesting aspect of the bill is the requirement that an owner of a contaminated property must notify a neighbouring property owner in writing once there is a serious risk of contaminant migration, or if contaminants are present at property limits. In many legislative regimes dealing with contaminated lands and liabilities, the legislators have left the issue of relationships between neighbouring landowners to the parties themselves, but Bill 156 would codify these obligations.
Finally, the bill requires certain designated industries to provide a characterization study and a description of measures to be taken in order to prevent, detect and correct any contamination resulting from business operations. A study must be performed within six months and submitted to the minister. If contamination is found to exceed the prescribed regulatory limits, a rehabilitation plan must be submitted for approval.
Based on significant submissions in opposition, the National Assembly of Quebec has decided to revisit the proposed Bill 156. While it is uncertain at this time exactly what the final framework will be, it’s clear that revisions to the existing scheme will likely harmonize Quebec’s regime with those in some of the other provinces.