Remember to Plan for Land Rehabilitation or for Management of Contaminated Soil in Your Projects

The completion of infrastructure or development projects can trigger various requirements related to land rehabilitation and the management of contaminated soil. Early planning is essential in order to limit the risk of unpleasant surprises during the project and to ensure its success.[1]

The legal regime applicable to land contamination and rehabilitation is essentially found in the Environment Quality Act ("EQA") and its regulations, including the Land Protection and Rehabilitation Regulation ("LPRR").

This regime provides for certain specific requirements with regard to the characterization and rehabilitation of land that supports or has supported "designated" activities. In particular, the LPRR identifies the categories of "designated" industrial or commercial activities and sets the applicable regulatory limit values, which are devised according to the applicable zoning for the land.

Statutory Characterization and Rehabilitation Requirements

The cases giving rise to statutory requirements for land characterization and rehabilitation are as follows:

Cessation of a "designated" activity

When a "designated" activity is terminated on a permanent basis, a mandatory characterization study must be carried out within six months of the cessation. Additional time may be granted in some cases. If this study reveals the presence of contaminants above the applicable regulatory limit values, a rehabilitation plan must be drawn up, approved by the Minister and implemented. In addition, a notice of contamination must be registered in the land register. Once the site has been rehabilitated, a decontamination notice can then be registered.

Thus, in the context of a revitalisation or development project that involves, for example, the closure of a plant whose activities are listed under the LPRR, these requirements will apply and will be incumbent on the company ceasing these activities, regardless of its status as lessee or owner of the land in question. In this type of case, the fulfilment of the studies and rehabilitation work may be the subject of contractual negotiations with the company that wishes to acquire the land or proceed with its revitalisation; however, under the EQA, it is the company ceasing its activities that will nevertheless remain liable.

Change of use

The implementation of a development or infrastructure project involving a change of use of land upon which "designated" activities have been carried out in the past also requires a characterization study to be carried out for anyone who intends to change the use of this land (even if they are not the owner). If it reveals that the applicable regulatory standards have not been met, a notice of contamination must be registered in the land register and a rehabilitation plan must be prepared, approved by the Minister and implemented.

Requirements arising from a change in use apply as soon as there is an "intention" to change the use of the land. With regard to the concept of "change of use", the EQA specifies that carrying out an activity on the land that differs to that previously carried out constitutes such a change. In short, this concept is relatively vague but is further clarified in the guidance developed by the Ministère de l’Environnement et de la Lutte contre les changements climatiques.

It should be noted that it is now possible to proceed using a declaration of compliance rather than the Minister-approved rehabilitation plan, in which rehabilitation of the land is carried out solely through soil excavation, must be completed within a maximum of one year and the quantity of soil to be excavated must not exceed 10,000 m³. A rehabilitation project that meets the applicable criteria could, therefore, avoid the cumbersome and administrative delays inherent in the Minister-approved rehabilitation plan.

What About the Other Requirements?

Voluntary land rehabilitation

The rehabilitation of land to the applicable generic criteria does not normally require any approval from the Minister, subject to certain specific cases.

For example, a ministerial authorisation under section 22 of the EQA may be required for the use of rehabilitation technology that is likely to result in the release of contaminants into the atmosphere or water (in situ treatment).

In addition, someone who plans to rehabilitate a property which will leave contaminants in the soil in excess of the applicable limits - namely via rehabilitation following a toxicological and ecotoxicological risk assessment - must submit a rehabilitation plan to the Minister that sets out the measures to be implemented, in particular with regard to protecting the quality of the environment, as well as human health and safety. Following the Minister's approval of the plan, a notice of land use restrictions must be registered in the land register, making the rehabilitation plan enforceable against third parties and obliging any subsequent purchaser to adhere to the charges and obligations provided for therein.

Notice to the neighbouring owner

The EQA also requires the property's custodian to immediately notify the owner of a neighbouring property in writing when the following three conditions are met:

• The contamination exceeds the applicable regulatory limits;
• Soil contamination results from a "designated" activity undertaken on the land; and
• The custodian is informed 1) of the presence of contaminants at the property boundaries or 2) of the existence of a serious risk of migration outside of the limits of the land that could compromise water usage

If only the first two conditions are met and the custodian is informed of a serious risk of off-site contamination, only the Minister must be notified.

Management of contaminated excavated soils

Finally, even in the absence of any statutory requirements to characterise or rehabilitate the land, development or infrastructure projects generally require characterization studies to be carried out, whether this be for financing or managing excavated materials.

With regard to excavated contaminated soil, it should be noted that it must be disposed of at an authorised site. In order to prevent illegal dumping of contaminated soil, the Government of Quebec published, in the spring, a draft regulation aimed at tracking the movement of contaminated soil via GPS. The use of this type of traceability system is already part of the conditions set out in the call for tenders of certain public bodies. The Regulation respecting the traceability of contaminated excavated soil will be the subject of a separate article as soon as the final version is published by the Government of Quebec.

The above applicable requirements following the cessation of an activity or a change of use can be easily identified during the planning stages of a project through appropriate research and checks. In addition, the assessment of the volumes of contaminated soil to be excavated as part of a project is often a key element in the risk-sharing between the developer and the general contractor.

The identification of environmental risks related to land contamination in advance of any infrastructure or development project makes it possible to take into account the time necessary to meet these requirements in the project schedule and, where applicable, to determine who will bear the costs and risks related to the decontamination of the land or the management of excavated soils.

 

[1]This article is intended to provide an overview of the principal requirements in this domain and does not take into account exceptions that may be applicable in specific cases.