To Do List for Brownfield ERS
09/05/2006
by -- Marguerite Ceschi-Smith
Exclusive highlights of AMO's latest report. The Association of Municipalities of Ontario (AMO), representing municipal governments across Ontario, has played a key advocacy role in brownfields redevelopment.
The purpose of its latest report, "Brownfields Redevelopment - What has been achieved, What remains to be Done", is to review where we were six years ago; what changes have been requested; what's been accomplished; and what's still outstanding.
It is important to note and somewhat disappointing that most issues discussed in AMO's 2000 and 2001 policy papers still need to be addressed. Additionally, it is equally important to congratulate and highlight the positive steps provincial and federal governments have taken which have enabled a certain level of brownfields redevelopment activity to occur.
The fact remains, however that municipalities are the order of government most directly impacted on a day-to-day basis in coping with the problems associated with brownfields. Included among these challenges are ongoing threats to public safety, unpaid taxes and lost revenue, community impacts of urban blight and environmental degradation. To deal with these issues, municipalities have been forced to take action on brownfields sites either alone or with private sector partners.
Until recently, the provincial and federal governments have been reluctant to take action and become full partners. This is unfortunate given their significant financial resources and their ability to reduce the many barriers that are still currently in place. These include: removing crown liens from qualifying properties, municipal liability issues, resolving escheated properties, reviewing tax policy and financial incentives. These barriers are directly within the provincial and federal government's power to change and would enable the redevelopment of many brownfields currently lying idle. They would also help brownfield sites contribute substantially to Ontario's "Places to Grow" objective for 40 per cent of new development occurring on infill properties.
The AMO Brownfields Report, May 2006 contains a series of comprehensive recommendations directed especially to the outstanding issues and barriers municipalities experience across Ontario. The report clearly points out that redevelopment of brownfields would be facilitated if the federal and provincial governments acted upon them. What follows is a sampling of the many issues contained in the report:
Municipal liability and regulatory certainty
These are issues of great concern to municipalities. Examples include:
No current legislative mechanism that owners of contaminated sites can rely on to prohibit a more sensitive land use by a subsequent owner.
No certainty that once a site has been cleaned up to the statutory and regulatory provisions of the day, absent negligence, the property owner should not be subject to meet new regulatory standards developed at a future point as long as the use is unchanged.
Record of Site Condition - RSC
Ontario now operates under new RSC rules - Ontario Regulation 153/04 and EPA 168. Municipalities question the actual value of the RSC reports because of disclaimers from the Qualified Persons (QP), in case of future liability and the Ministry of the Environment (MOE). Where does that leave municipalities? The only conclusion to be reached with respect to the disclaimers is that Ontario government is not taking any responsibility for RSC's posted in the registry. This issue must be addressed. Municipalities should not be unwittingly placed in a position of future litigation and liability.
Provincial and federal liens, orphan sites, and tax sales
Currently, municipalities can proceed with a tax sale when a property is in tax arrears for three years. Often orphan sites are mired in a complexity of legal issues. If unsold, these properties become a burden on municipal resources providing fire, police, inspection and enforcement services. As well, municipalities can no longer write-off taxes if deemed uncollectible unless there has been an unsuccessful tax sale -- thus removing the ability for municipalities to negotiate with interested parties up front to gain a rejuvenated site desirable to the community. Unfairly, municipalities are also burdened with federal and provincial liens, which cannot be removed creating a further obstacle.
There are indications the Ontario Ministry of Finance is developing a fairer way to address provincial Crown Liens. As well, the provincial and federal governments are working to develop criteria to delineate the circumstances under which a lien can be lifted. The 2005 Provincial Budget spoke to this initiative, which is well on its way to being developed.
Recycling and reuse of soils
There should be flexibility and opportunity to re-use soil on-site and there needs to be a clear definition/guidance on what constitutes impacted soil. The objective should be to reuse and recycle the soil rather than disposing it into landfills. There are many measures that, taken together, could substantively assist municipalities and proponents in providing a smoother, more financially viable approach to brownfields redevelopment.
The introduction of new legislation such as the Clean Water Act 2005 brought forward the need for clarity and guidance, because of the ripple impact on existing legislation. Municipalities require regulatory certainty.
Taxation policy
Changes to taxation policy should be reviewed to level the playing field between greenfields and brownfields. These should include:
* The ability to expense brownfields remediation costs as part of an ongoing business expense similar to the actions of the oil industry.
* The provision to utilize Tax Incremental Financing tools
* The review of Brownfields Financial Tax Incentive Program (BFTIP) in consultation with municipalities to establish a workable program.
Preventing future brownfields
Unless more active attention is placed on preventative measures, and a long-term policy developed newly created brownfields will continue to appear threatening the environment with the contamination of water and soil. The Province of Quebec has taken proactive action and in 2003, proclaimed Bill 72 - an Act to amend the Environment Quality Act and other legislative provisions with regard to land protection and rehabilitation, along with the Soil Protection and Rehabilitation Regulation. Ontario should consider similar legislation.
Next steps
Many recommendations contained in the AMO report are within the power of provincial and federal governments to address and given the political will, change. Only then can municipalities truly contribute to building sustainable and liveable communities.
Marguerite Ceschi-Smith, M. Sc. is chair of AMO's Brownfields Taskforce Committee and is Councillor for the City of Brantford. She was the Canadian Urban Institute's 2004 Brownfielder of the Year. For further information, e-mail MCeschi-Smith@brantford.ca
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