In 2000-2001, the Environment, Energy and Natural Resources Section of the Quebec Branch has held several activities on a wide range of subjects involving both environmental and energy law.

In September, Jean Morel of Hydro-Quebec Legal Department made a presentation on changes to the Quebec Energy Board.

In November 2000, Isabelle Jacques of Environment Canada gave a presentation on the proposed Species at Risk Act.

In January 2001, Jean-Pierre Théorêt, a member of the National Energy Board, presented a conference on the inner workings of the Board.

In March, a round table discussion was held on the proposed Bill 156 which seeks to amend the Quebec's contaminated sites regime. Representatives from industry and government were present.

In April, the Section will hold its annual conference which will provide an overview of recent case-law in the area of environmental law.

In early March, a new cabinet was formed and the Minister of the Environment was replaced. The new Minister is André Boisclair. At 33 years old, Mr. Boisclair is relatively young Minister. Previously, he was Minister of Social Solidarity and Minister of Immigration.

On the legislative front, the most notable piece of legislation was Bill 156 which seeks to put forward the new legal framework for managing contaminated lands.

If adopted, the existing sections of the Environment Quality Act (EQA) on decontamination and restoration of soils (ss. 31.42 to 31.52 of the EQA) will be replaced.

Potentially Responsible Party Extended: The most significant change that Bill 156 brings is extension of the potentially responsible party beyond the polluter to persons who have or had ownership, custody or control of contaminants in property. The proposal is a major departure from the existing legal regime where, for the most part, Quebec has adopted a "polluter-pay" approach.

New Order Power: The Minister will be given the power to order a person who discharged contaminants or who has or has had ownership, custody or control of such contaminants to submit a rehabilitation plan setting out the measures to remedy the situation along with an implementation schedule to the Minister for approval. The Minister is also given the power to order such a person to perform a soil characterization study where there is reason to suspect that contaminants are present on property. The owner of the property must also be notified of the order.

Acceptable Level of Contamination to be set by the Regulation: Currently, generic criteria for soil and groundwater remediation are set out in a government policy that does not have the force of law. Bill 156 proposes to set an acceptable concentration level of contaminants by way of regulation giving its legal weight. The Minister will be able to issue an order when the level of contamination exceeds that set by regulation.

However, the proposal goes further and allows the Minister to issue an order where contamination is likely to have an impact on the life, health, safety, welfare or comfort of human beings or other living species, the environment or property and this even where contamination does not exceed the regulatory values. Therefore, the Minister has the option to apply either the objective regulatory standard or a second more general standard.

Notice of Contamination: Where the level of contaminants exceed the regulatory values, a Notice of Contamination must be registered in the land registry. The notice must include a summary of the characterization study, the name of the applicant and the owner of the property.

Once the decontamination of the property has been completed, a person can apply to the land register for a Notice of Decontamination.

Rehabilitation Plan: Once required, the rehabilitation plan must be approved by the Minister. The plan may contain land use restrictions if it provides that contamination in excess of the regulatory values is to remain on the property. The Minister will not approve a plan containing land use restrictions without the consent of the owner. Once approved, the notice of the plan must be registered at the land registry and include a summary of the characterization study and a statement of land use restrictions.

Requirements for Certain Industries: Bill 156 will also impose additional requirements for certain industries designated by regulation. These industries are deemed to be more likely to potentially impact soil and water. The designated industries will be required, prior to undertaking activities, to provide a characterization study and a description of measures taken in order to prevent, detect and correct any contamination that may be caused to the property resulting from the operation of the business and also, in certain circumstances, provide for financial guaranties in order to insure that the property will be decontaminated upon closure.

Where a person ceases to carry on a designated industrial activity, it must, within six months, perform a characterization study and submit it to the Minister. If the study reveals that contamination exceeds the regulatory values, it must submit a rehabilitation plan to the Minister for approval.

Where a person intends to change the use of land where a designated industrial activity was carried out, it must first perform a characterization study in order to assess the risks and impacts of the activity. Once completed, the study must be transmitted to the Minister and the owner of the land.

Any change in land use of property where contamination exceeds the regulatory value, must be approved by the Minister. Where the plan provides that contamination in excess of the regulatory value remains on the property, it must be subject to a public consultation process prior to approval.

Notice to Neighbouring Land Owners: Bill 156 will also require that an owner of property, which contains contaminants which exceed the regulatory values, notify a neighboring property owner in writing, once informed of (i) a serious risk that the contaminants may migrate to the neighboring land, or (ii) the presence of contaminants at the limits of the property.

Municipal Register: Finally, Bill 156 will also require that each municipality maintain a register of properties on its territory that are considered to be contaminated. This information is to be taken into consideration prior to approving the subdivision of property or issuing construction permits.