Brownfields are common in many Alberta municipalities; however, due to the potential uncertainty of and frequent amendments to remediation regulation, investments made to remediate these properties may be financially risky. For both the vendor and purchaser of a brownfield site, the cost of remediating a property must be carefully considered in respect of the property's value and each party must assess its risk tolerance for the transaction. The Remediation Certificate Program (the Program) now reduces these risks in certain circumstances.
The Program is designed to mitigate the risk of investing in a contaminated property by providing a greater level of certainty with respect to applicable regulatory standards and future liability. Enacted under Alberta’s Environmental Protection and Enhancement Act (EPEA), the Program allows for the issuance of remediation certificates to provide certainty that a once-contaminated property has met the remediation standards in effect for the property's use at that time.
Alberta Environment continuously issues and updates remediation guidelines applicable to contaminated sites. These guidelines often require that more stringent remediation standards be met. If a remediation certificate is not issued for a particular parcel of land at the time remediation is complete, the regulatory liabilities attaching to that land may increase over time. Under Part 5, Division 1, of the EPEA, there is a duty to take remedial measures where there has been a release of a substance that is regulated under the EPEA. An Environmental Protection Order (EPO) may be issued by Alberta Environment if a release of a substance has occurred. If the land is remediated and a certificate is obtained, then an EPO will only be issued if new contamination occurs resulting in an adverse effect, or if the use of the land changes.
Application for a remediation certificate is voluntary and certifies that the property has been remediated with respect to specific contamination. This gives the landowner or developer certainty that no further remedial measures are necessary for either groundwater or soil, depending on what contamination occurred, and provided the use of the land does not change. It is important to note that a remediation certificate does not certify that the land is "clean" of all environmental contamination, only that the property has been remediated to a specified standard for a specific substance.
Eligible lands for the Program are those on which a substance has been released and where remediation of that substance has been completed to either Tier 1 or Tier 2 of the Alberta Tier 1 and Tier 2 Soil and Groundwater Remediation Guidelines (the Guidelines). To apply for a certificate, an applicant (including a current landowner or developer) must submit the following documents to Alberta Environment: the application form and applicable fee of $1,000; a survey plan of the property; a map of the original release; a remediation diagram; the applicable land titles certificate; an environmental site assessment and remediation report; waste manifests; lab analysis results; and, if the application is for off-site contamination, a risk management plan and third party risk management agreement. Alberta Environment will review the application package to determine if a remediation certificate will be issued.
To qualify for the Program, onsite contamination must be completely remediated to Tier 1 or Tier 2 levels under the Guidelines. Offsite contamination requires consultation with affected third parties and either complete remediation to Tier 1 or Tier 2 levels, or implementation of a risk management plan with subsequent remediation to Tier 1 or Tier 2 levels. If the application for a remediation certificate is denied, the applicant can appeal the decision to the Environmental Appeals Board. If the remediation certificate is issued, a party in opposition to its issuance may appeal to the Environmental Appeals Board.
Once issued, 10% of all remediation certificates are subject to an audit process. A certificate can be cancelled if a substantiated complaint is made, if it fails an audit, if a new substance release results in an adverse effect, or if a new use of the land requires that a higher level of remediation be met. Information respecting applications, the issuance or refusal of remediation certificates and cancellation of certificates is made available to the public by Alberta Environment.
Currently, the Program focuses on petroleum storage tanks, which include underground and above ground storage tank facilities that contain or have contained gasoline, diesel, heating oil, aviation fuel or other similar products. The Alberta Government has indicated plans to develop guidelines for well-sites, pipelines and other upstream oil and gas facilities, which will allow the Program to be expanded to these types of sites and land uses.
Remediation certificates provide regulatory assurance that a property has been properly remediated to the standards for particular usage, thereby providing an incentive to remediate brownfields. It is important to remember, however, that the Program has its limitations. Currently the application of the Program is limited to remediation relating to storage tanks. The Program will not protect a purchaser from on-going migration from neighbouring properties or relief from liability for contamination extending outside of the subject property’s borders. In addition, a certificate is also not absolute: a change of use in the remediated zone may have an adverse effect such that the remediation certificate is no longer valid. Therefore, a potential purchaser must consider if its intended use of the land fits within the scope of the certificate. As every site is unique, we recommend that purchasers consider all aspects of a contaminated site when considering applying for a remediation certificate and consult counsel to fully consider any potential liabilities prior to investing.