In commercial real estate we wear many hats. It’s a neat career in that we get to learn every day about industries we might not otherwise be exposed to.
A significant factor in a commercial real estate sale can be determining environmental impact on a site through a qualified engineering firm.
There have been recent changes to the Environmental Management and Protection Act, 2010 (EMPA) which I think are worth pointing out. By no means am I an environmental engineer! When in doubt, contact the experts for a full interpretation. These are just my observations.
When does this start?
EMPA changes came into effect June 1, 2015. It’s important to understand that EMPA works with the Saskatchewan Environmental Code which requires property owners to manage environmental impact within their sites.
The Code is a results based regulatory system that provides the standards environmental engineers use to measure soil contamination. These code standards change frequently but the reporting and remediation requirements in EMPA have only recently changed.
Is a new report required?
You do not necessarily need to rush out and grab a new Phase I if your report is older than June of this year.
Most of the changes to EMPA, from my research, surround contaminated land. If this doesn’t apply to your property take a deep sigh of relief. The words we seek for the cleanest bill of health on a Phase I are, “No further investigation required.” This has not changed at all.
Important to keep in mind, however, that each financial institution will have its own guidelines stating how old a Phase I may be. Typically, they will accept Phase I reports completed with 18 months as long as a Phase II was not required.
Five changes impacting contamination
As mentioned, the changes primarily impact land identified through Phase II to have some level of contamination on them. These changes include:
- There is a new duty to report a discharge and discovery of contamination – this applies to property owners, anyone making a discovery while conducting work on site, and any municipal agency or law enforcement that becomes aware of a discovery or is investigating it.
- There is a new process to transferring responsibilities of impacted sites wherein the Ministry of Environment wants to make sure that the party assuming responsibility can afford to follow through on reclamation and fully understands what they’re taking on.
- There is now discretionary power from the Ministry of Environment to order owners and occupiers to report impacted sites.
- There is a new process to conducting site assessments and developing corrective action plans if required.
- There is a new impacted sites registry being developed.
From what I understand, many of the changes build on existing requirements under the old version of EMPA. It’s not quite clear how some of the vaguer points will be interpreted over time including the setup of this registry.
The registry aims to provide information on contaminated sites including site conditions, corrective action plans, sites assessments, and environmental protection orders. Supposedly the registry will be available to the public online but how or when that takes shape is unclear.
As the new and improved EMPA is still in its infancy it will be interesting to see how things shake out in within the “greyer” areas of the act. The implications, however, would appear to have risen for sites affected by contamination.
Posted by Kelly Macsymic