The planning of a construction project or start-up of an
industrial activity requires prior verification of a number of
matters. Despite the introduction, ten years ago this year, of
rules in the Environment Quality Act (EQA) governing the
protection and rehabilitation of contaminated lands, the physical
condition of the project site is often still a neglected
issue.
While the question of soil contamination can raise issues of civil
relations, such as, for example, civil liability or the warranty of
quality (against latent defects), in this article, we will focus
exclusively on the obligations that can arise from the EQA.
The purpose of the EQA is environmental protection. This protection
is embodied in measures for prior protection, emergency responses
and rehabilitation in the EQA. The EQA also imposes certain duties
to act on the users of immovables.
POWER TO ISSUE ORDERS
The Minister of Sustainable Development, Environment, Wildlife
and Parks ( MSDEWP) has broad powers, including, in particular, the
power to order the filing of a rehabilitation plan if he has reason
to believe, or ascertains, that contaminants are present on land in
a concentration exceeding the limit values prescribed by
regulation,1 or that they are likely
to affect the environment in general.2
Since 2003, this power has applied to all persons who have had
custody of the land, in any capacity whatsoever. Such an order can
therefore be imposed on tenants and is not limited only to the
owner or "polluter" of the land.
Thus, it is important for any purchaser to be familiar with the
history of the land so that it can assess whether there is a risk
that this type of situation could arise.
Where such an order has been issued, some means are available for a
person to exempt himself from it, in particular, where (i) he was
unaware of or had no reason to suspect the condition of the land
having regard to the circumstances, practices and the duty of care,
or (ii) he was aware of the condition of the premises, but shows
that he acted at all times with care and diligence in conformity
with the law and, finally, (iii) he shows that the condition of the
premises is a result of circumstances exterior to the land and
attributable to a third party.
CESSATION OF INDUSTRIAL OR COMMERCIAL ACTIVITY
Where a person permanently ceases carrying on a commercial or
industrial activity referred to in schedule III of the Land
Protection and Rehabilitation Regulation3 (LPRR), the operator must conduct a
characterization study of the land.4
This obligation applies where the activity permanently ceases and
it triggers the further obligation to carry out the rehabilitation
of the land if the contaminants present in the soil exceed the
regulatory concentration limit. This work must be performed in
accordance with a rehabilitation plan which is submitted to the
MSDEWP and approved by him.
While this obligation to carry out the rehabilitation of the land
only applies to the operator of the activity, it creates a
restriction on the use of the land which must definitely be taken
into account by the purchaser in the context of a transaction.
Indeed, the failure by the operator to perform the rehabilitation
will have significant consequences for the purchaser, especially if
it wishes to change the use of the land.
CHANGE IN USE
Where a person wishes to change the use of land which served as
the site of a commercial or industrial activity listed in schedule
III of the LPRR, he must conduct a characterization study, unless
he already has such a study in hand, and it is still current.5
Obviously, in the context of an acquisition, if this obligation
exists, it is advisable for the purchaser to ensure it is satisfied
by the vendor, or, at the very least, that the condition of the
premises be very clearly disclosed to avoid any unpleasant
consequences down the road.
If the characterization study reveals that contaminants are present
in amounts exceeding the regulatory limits, a rehabilitation plan
will have to be submitted to the MSDEWP for approval, after which
the rehabilitation will have to be done before the new use of the
land can commence. This work will obviously create delays for the
purchaser since the municipality will not issue the necessary
permits to proceed with the subdivision or construction until the
land has been decontaminated.
In the event that the land has already been decontaminated in
accordance with the applicable procedures, it is important for the
purchaser to carefully review the rehabilitation plan submitted to
the MSDEWP and the various entries made in the land register to
determine whether there are any restrictions on the use of the
land, or whether any excess contaminants may have been left in the
ground with the consent of the MSDEWP.
REGISTRATION REQUIREMENTS
The EQA contains a series of measures requiring the publication
of notices in the land register with respect to contaminated
lands,6 specifically, notices of
contamination, notices of decontamination, and notices of use
restriction. In addition, in some circumstances, certain notices
must also be given to the local municipality, to the Minister of
SDEWP, and even to neighbours.
Clearly, the existence of such notices must be verified when any
transaction is being undertaken. However, it is important to
remember that the EQA does not regulate all of the situations
relating to contaminated lands and, in particular, historic
contamination and contamination resulting from activities not
covered by the LPRR. The existence or lack of registrations against
the land in the land register does not therefore guarantee that the
premises are in compliance with the rules of the EQA on the
rehabilitation of contaminated soils.
LIMITED APPLICATION
Thus, as far as contaminated soils are concerned, the
application of the EQA is limited. For instance, there is no
general obligation to perform the rehabilitation of land following
the completion of a characterization study done on a voluntary
basis. However, the presence of contaminants could trigger a
restriction on the use of the land which could prevent the
purchaser from being able to use it for the planned activity.7
Accordingly, as a purchaser, it is very important to be well
informed of the condition and history of an immovable, and even,
most of the time, to obtain an environmental characterization of
the subject property. It is a question of exercising the care and
diligence of a responsible purchaser.
Foonotes
1 The Land Protection and Rehabilitation Regulation, CQLR, chapter Q-2, r 37.2 Section 31.43 of the Environment Quality Act, CQLR, chapter Q-2, provides more specifically that this applies to contaminants which are "likely to adversely affect the life, health, safety, welfare or comfort of human beings, other living species or the environment in general, or to be detrimental to property".
3 Supra, note 1. This is a list of most of the activities that are likely to cause soil contamination.
4 See sections 31.51 and following of the EQA.
5 See sections 31.51 and following of the EQA.
6 See sections 31.51 and following of the EQA.
7 For example, a residential development that cannot proceed on land where contaminants exceed the acceptable limits for residential usage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.