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July 01, 2005

Brownfields Consultation Mandatory for CPU

On June 22 the MOE posted the EBR notice below. It would make Certificates of Property Use into Class II instruments under the EBR.

Certificates of Property Use (CPU) are issued by the Ministry of the Environment for contaminated site clean-ups based on risk assessment.

In October, when the requirement for a Record of Site Condition becomes mandatory for land use changes (e.g. from industrial/commercial to residential), Chief Building Officials must refuse to issue building permits that do not meet the restrictions in a CPU.

The proposal below is open for consultation. Deadline for comments is July 22, 2005.

A. What will this mean?

  1. MOE will have to post a draft CPU on the Environmental Bill of Rights Registry (not the ESR), for 30 days (and the Minister can extend that time).
  2. The MOE is required by the EBR to consider comments from the public when making the final decision - therefore, strong public opposition can affect the final decision on whether to issue the CPU, and its contents.
  3. The MOE must also require that Class II proposals be publicized, and specify at least one other method besides posting on the EBR, set out in section 28(1) of the EBR - including mailings, news releases, door to door flyers, etc.
  4. Furthermore, as a Class II proposal, the Minister can also require more intensive consultation or even mediation (EBR s. 24)
  5. Finally, municipalities, neighbours and other members of the public will be able to seek leave to appeal the CPU.
  6. Although there is a stringent test for leave, this will be the source of additional delay.

B. How is this going to affect Risk Assessments, and the ultimate acceptance and filing of RSCs?

There will be a 45-60 day delay from the date the MOE comes up with a draft CPU, get it posted, give time for the public to respond, MOE to consider public comments and make a final decision. During or before this time, the proponent will also have to do the additional notice and/or consultation. Plus the Minister can extend the time for consultation and consideration of comments, and order additional consultation or mediation.

Strategically, environmental consultants conducting risk assessments will have to consider this at the PSF stage.

Since clients will be confronted with mandatory EBR consultation at the CPU stage, it may be important to conduct consultation earlier in the RA process. There may be opportunities to identify and mitigate stakeholder concerns (such as municipality, Conservation Authority, neighbour, competitor) during the RA process. This could minimize potential surprises and delays at the CPU stage (mandatory mediation, imposition by MOE of onerous terms in the CPU).

In some cases, this may even influence the decision on whether to proceed by risk assessment versus dig & dump.

The EBR consultation provisions are set out in sections 22-28 of the EBR at www.e-laws.gov.on.ca/DBLaws/Statutes/English/93e28_e.htm#BK32.