New partner in Environmental Drilling

Fisher Environmental has teamed up with Terra Firma Environmental Services Ltd for environmental and geotechnical drilling.
Take a look at their new website:
www.terrafirmaservices.com

Brightfields: The Convergence of Green?

Contaminated Site, Toronto

Everyone knows the electronic convergence of the computer, internet and television is happening right before our eyes. But there is a lesser-known environmental convergence developing in North America, called 'Brightfields'. 

Brightfields are environmentally contaminated properties that are used for clean energy production, usually solar or wind. Solar or wind production can be an ideal long-term use for sites that are highly contaminated and may require many years to clean-up or remediate. 

Recent and rapid advancements in clean energy technologies are what make this convergence possible

City Solar Project, Chicago

The Brightfield sector is more established in the United States than Canada, with many large projects in full production, including Chicago’s Solar City 10-megawatt solar installation located on a 41-acre brownfield. However Canada’s Brightfield sector does already have some significant players and supporting funding channels. 

Most Canadian banks will finance costs related to establishing qualified Clean Energy projects, and the Federation of Canadian Municipalities’ Green Municipal Fund will consider additional financing related to characterizing and remediating the property. 

Several companies like ArcStar Energy based in Toronto will finance, design, build and manage large-scale green energy projects for both Greenfield and Brownfield sites. With a multinational coverage ArcStar looks for sites that suitable for utility and large scale industrial power delivery, and for sites that are eligible for green energy incentives, such as Ontario’s Feed In Tariff or ‘FIT’ program. 

The percentage of Brownfields sites that are suitable for renewable energy projects is quite small. However the large number of Brownfields in North America, over 1,000,000 by some estimates, means that there are likely 10,000 - 20,000 sites that are ideal candidates for a Brightfield devlopment. 

Links:

Ontario Power Authority
Federation of Canadian Municipalities
ArcStar Energy 

New Website Announcement

Fisher Environmental is excited to announce the launch of their newly designed Website at: www.fisherenvironmental.com 

Fisher Environmental - home page

The site welcomes visitors with bold colours and a clean easy-to-read layout. Full of topical content and videos, our aim is to share our knowledge and expertise on environmental due diligence and how environmental issues impact real estate. 

The new site is divided into relevant sections including:

1. Environmental Site Assessments - the industry's most recognized due diligence report.
2. Indoor Air Quality - a growing human health concern.
3. Site Remediation - dealing with environmentally contaminated properties.
4. News Releases - topical articles from a variety of national publications.
5. Social Media - links to Associations and Fisher's other sites: Fisher Labs and Fisher Drilling.

The Website will be updated on a regular basis with new content.

Ontario courts rule against victims of off-site contamination (again)

Property development is a risky business. However those risks increase considerably when redeveloping a "Brownfield" site. Beyond dealing with on-site remediation costs, if pollutants have migrated to a neighbouring property, there is the potential for costly regulatory clean-up orders and civil lawsuits. 

Not surprisingly off-site liability concerns are often a significant stumbling block to Brownfield redeveloped. After all what developer would purchase a property with known clean-up costs on-site, but unknown off-site liabilities?

However two recent court rulings in Ontario cases involving off-site contamination, resulted in decisions going against the innocent property owners, whose sites were contaminated by the activities occurring on nearby sites. While it is unlikely that these cases will result in more Brownfields being redeveloped in the province they have caught the attention of many in the industry.

1. In October 2011 the Ontario Court of Appeal overturned an earlier decision by the Ontario Superior Court in Smith vs Inco Limited, which had awarded $36,000,000 in damages to 7000 property owners in Port Colborne, Ontario, due to soil contamination caused by nickel particles emitted from Inco’s refinery. (see my blog post from October 18, 2011)

Kawartha Lakes, Ontario

2. In June 2012 the Ontario Divisional Court upheld a Ministry of Environment (MOE) order requiring the City of Kawartha Lakes to clean-up city owned property contaminated by a residential homeowner's furnace oil spill. The MOE's order deemed that protecting the environment took precedent over the innocent victim's (the City's) rights. (see Dianne Saxe's blog for an excellent analysis)

Why busted marijuana grow-ops pose a challenge for remediation and demolition

Peter Kenter from the Daily Commercial News recently interviewed Fisher Environmental on how marijuana grow-ops damage buildings. Below is an excerpt from that article.

 

The stereotypical marijuana grow-op involves a house in a small town crammed to the rafters with marijuana plants and greenhouse paraphernalia. But the RCMP estimates there are at least 50,000 marijuana grow-ops in Canada alone, and as many as 15 per cent of them are located in commercial or industrial buildings. 

Visible Mould from a Marijuana Grow-op

“One of the biggest busts in Ontario history occurred at the abandoned Molson Brewery in Barrie, in 2004 where police seized 30,000 plants,” says Gordon Onley, business development manager with Fisher Environmental Ltd. of Markham. 

The company has recently established growophomes.com as a central database to help prospective buyers of residential and commercial real estate to identify properties used for illegal drug operations.

“There are various lists of these properties available across the country, but we’re attempting to make it easier for buyers to identify properties used as grow-ops,” says Onley. 

In a typical case, a grow-op is located in a rented or abandoned property where growers often perform major remodeling to create a property suitable for marijuana cultivation.

Read the entire article: http://www.dcnonl.com/article/id49896

 

Mould and Your Health - Toronto, Ontario

Mould is everywhere, it is in the air we breathe and grows on virtually any surface. In fact there are thousands of species of mould in Canada.  However people can develop chronic, even life-threatening, illnesses as a result of prolonged exposure to high levels of Mould.  

Mould infestation - Toronto, Ontario

Since mould concentrations are higher indoors, which is where we spend 90% of our time, homeowners should be especially careful to ensure that their house is safe. 

How do you control Mould? -   Control Water, Ventilation and Temperature.

Mould requires water to grow, so it is important to prevent moisture problems in buildings. When poor ventilation is mixed with high humidity, visible mould can appear in less than 48 hours.  If left unchecked, the mould will flourish eventually becoming airborne spores. It is when the mould becomes airborne that health problems can arise.

What do you do if you see or suspect you have mould? 

1. Your health: consult a medical health professional. 
2. Your home: have a qualified mould inspector to do an assessment.*

The inspector will test and safely remove the mould, while keeping everything outside the contamination area free from spores.  Indoor air quality testing performed before and after the clean-up, will confirm the mould has been effectively removed.  

*WARNING: If you suspect that your home may have been a marijuana grow house, it may have serious and potentially dangerous structural and electrical issues. We will address the implications of owning a former "grow op" in the next blog.

Click HERE for a 2 minute Health Canada video on Mould prevention

Environmental Liability in Ontario Steps Backward

Ontario’s environmental industry is still processing a startling decision on a massive property contamination case made earlier this month.

On October 7, 2011 the Ontario Court of Appeal overturned a July 2010 decision by the Ontario Superior Court in Smith vs Inco Limited[1]. The 2010 decision awarded $36,000,000 in damages to 7000 property owners in Port Colborne, Ontario, due to soil contamination caused by nickel particles emitted from Inco’s refinery, over a 66 year period up to 1985. It was speculated that the original July 2010 decision would open the door in Canada (or at least Ontario) to American-style environmental class-action lawsuits popularized in movies like: Erin Brockovich starring Julia Roberts, and Civil Action with John Travolta.

In the Court’s decision it said that the case failed to prove that Inco’s refinery dust negatively impacted the values of the properties or the owner’s ability to use their properties.  The Court also found that the case did not show that the contamination posed a risk to the health or safety of residents.

The implications of this decision are potentially far-reaching when you consider so many industrial activities operate near residential areas.

There are several layers of irony in this story.

1.   Smelting is a “Potentially Contaminating Activity” highlighted by the Ministry of Environment (MOE) earlier this year in amendments to Ontario’s Brownfield legislation, O. Reg 153/04. Legislation that is designed to protect human health and the health of our environment.

2.   The pollutant in question, nickel refinery dust, is considered a human carcinogen by the US EPA, and EPA cites health studies from Port Colborne to support their conclusions! “Evidence of carcinogenicity includes a consistency of findings across different countries (Clydach, Wales; Copper Cliff, Ontario; Port Colborne, Ontario; Kristiansand, Norway; and Huntington, WV)”[2]

Inco (now owned by Vale Ltd.) is however not gloating over what must be viewed as a huge victory. The company's website has no posted announcements on the case.

[1] www.ontariocourts.on.ca/decisions/2011/2011ONCA0628.htm

[2] www.epa.gov/iris/subst/0272.htm

---

Need a Phase I or II ESA? ---- Read this first (Part 2)

In my last post we saw how Ontario’s new “Brownfield” legislation has resulted in:

1. Phase I ESA’s costing more and taking longer.
2. More Phase II’s ESA being recommended.
3. Property owners receiving copies of Phase I & II’s, regardless of who orders them.
4. 65% of pollutants having more stringent guidelines, including the most common offenders (wastes from motor oil, gasoline and dry cleaning solvents).

You can refer back to September 14^th blog for details.

Additional implications of the new regulations are as follows:

5. More sites will not 'pass the test'.

The new Ministry of Environment (MOE) regulations on how Phase I's are prepared will result in more Phase II's ESA being recommended.  Also the new regulations have imposed lower thresholds for the most common pollutants.

Result: More sites will be deemed ‘contaminated’.

6. Developing a property requires a Record of Site Condition (RSC).

While this is not new news perse, in order to get a RSC approved the supporting Environment Site Assessments (Phase I and II) and remediation reports (if applicable) will have to meet the MOE standard. Therefore Phase I and II’s done to the CSA standard will not be accepted.

Result:  Getting approval for a RSC (necessary condition on most commercial deals and required by municipalities to approve redevelopment) will be more difficult.

7. Sites not being redeveloped can use the CSA-standards for Phase I and II ESA’s...

...BUT most financial institutions have adopted the new (stricter) MOE-standards into their underwriting guidelines*.

*Many bankers I have talked to indicate that in some cases (ie. mortgage refinance on a site with ‘lower risk’ activities) the CSA standard will be permitted. Tip: check with the bank first before ordering a report.

Need a Phase I or II ESA? ---- Read this first (Part 1).

For those in the commercial real estate industry, our business has been changed by recent amendments to Ontario’s "Brownfield" legislation.

When I do presentations I often get asked:  “How does the new law impact me and my clients?”

Over the next two posts I will present my list of - What you need to know about Ontario’s new environmental regulations.  While this is not an exhaustive list, it is my goal to highlight the changes and implications of new regulations so you will be able to respond appropriately to any environmental situation. 

1. Phase I ESA's will take longer and cost more.

The new regulations require investigating the complete historical uses of all properties within 250 metres (instead of the old CSA standard of investigating just the immediate neighbours). 

Result: Better quality reports industry-wide, but plan on 3 – 4 weeks and $3000 - $4000 on per report. Beware: a $2000 Phase 1 will probably not meet the new MOE standards.  

2. More Phase II ESA's will be required.

The inclusion of Potentially Contaminating Activities (PCA) in the new regulations mean that if an industrial activity has ever occurred at the subject property, the soil and groundwater will likely have to be tested for contamination. (See my blog on May 4, 2011 for the complete list of PCA’s).

Result: More properties will fail for contamination by virtue of more Phase II’s being completed.  In addition if the Phase II is a condition for a transaction (purchase or refinance), remember it will take 4 – 6 weeks and will cost $8,000 - $10,000 on average.

3. Property owners receive a copy of Phase I & II ESA reports.

Result: Regardless of who orders the report(s) this amendment means property owners will have to be more forthcoming about the environmental conditions of their site(s).

4. More stringent guidelines for 65% of pollutants.

Included in this list are common contaminants related to gas stations, automotive repair and dry cleaning activities.  

Result:  For some properties these new numbers will be very difficult, if not impossible, to achieve. For those sites only option for obtaining a Record of Site Condition from the MOE will be through a Risk Assessment. (Remember: a Record of Site Condition is required by most banks as evidence that a site is “clean”)

If you are going the Risk Assessment route be aware they can take many months to complete (forget the 90-day close), and there are no guarantees the MOE will accept a Record of Site Condition based on a Risk Assessment.

Although we are only a weeks into the new regulatory regime, this could prove to be a real bottle-neck for one of the Ministry of Environment’s stated goals for the new regulations: streamlining processes related to remediating contaminated sites.

More on Risk Assessments and other important regulatory changes in next week’s blog.

Is a Record of Site Condition based on a Risk Assessments risky? Toronto, Ontario

Consider this situation: Your client wants to develop a large real estate parcel in a trendy transition neighbourhood in Toronto.  The problem is the Phase II Environmental Site Assessment has determined the site is contaminated with a mix of petroleum hydrocarbons, PCBs, dioxins, and heavy metals. On top of that the estimated costs to remediate, if done, would kill the project.

Dead deal, right? Not necessary.



Brownfield site in Toronto



For sites such as these a Modified Generic Risk Assessment (MGRA) may be an option.  Risk Assessments (RA), which are detailed studies of the risks to human health and the ecology caused by exposure to contaminants at a particular site, have been around for years.  However amendments to Ontario Regulation 153/04, include the new MGRA model, which promises to be a quicker and more cost-effective approach to getting a Record of Site Condition (necessary for redevelopment) on a contaminated property.

Risk Assessments are detailed studies of the risks to human health and the surrounding ecology caused by exposure to environmental contamination at a site.

While this is good news, the Ministry of Environment reserves the right to place a Certificate of Property Use (CPU) on a Record of Site Condition based on any risk assessment. CPU’s are limitations on how a site can be used (in order to protect human health) and are registered on title. An example of a CPU would be a provision prohibiting basements if it is deemed there is a risk of noxious vapour intrusion from contaminates in the soil. 

Certificates of Property Use can limit how a site can be developed and are registered on title.

So are Risk Assessments, risky? While it is true both traditional RA’s and MGRA’s are somewhat subjective, the strength of any Risk Assessment ultimately lies in the ability of the Risk Assessor, who does the analysis of the scientific data and submits the report.

Consider though: The hypothetical real estate parcel I referenced above does exist: It is the 80-acre West Don Lands site in downtown Toronto, which is currently being developed as the Athletes’ Village for the 2015 Pan Am Games. After the Games this site will ultimately have 6,000 new residential units and 23 acres of parks and public space, all on environmentally contaminated land, but with on-going risk management measures in place.

It’s a brave new world.

Toronto's West Don Lands - 2015

Next 2 blogs: Things to remember about Ontario’s new environmental legislation

Greenfields become Brownfields. Increased Costs for Real Estate development in Toronto, GTA and Ontario.

If you have read any of my recent articles on amendments to Ontario's environmental legislation, O. Reg. 153/04, you know that the due diligence process for Phase 1 environmental site assessments will become more complicated on July 1st.

Phase 1 ESA’s will now investigate at larger 'Phase 1 Study Area', and consider more activities that could contaminate the subject property. This is going to result in more Phase 2 environmental site assessments being recommended, to test the soil and groundwater for environmental contamination. While this will cost property owners more time and money, of greater concern is whether the property will pass or fail the lab tests.

In the commercial real estate world timelines can be, and often are, adjusted. And an extra $10,000 or $15,000 in fees usually won't upset a multi-million dollar transaction. But if the site is found to be contaminated this is usually a 'deal killer'.

Environmental contamination is a ‘Deal Killer’

One of the goals of the new legislation is to recognize developments in science regarding the impacts of pollutants on humans and the surrounding ecology. 65% of pollutants will thus have more stringent numbers in the new regs. And some of the most common offenders – chlorinated solvents, oils and gas - will see significant reductions in their limits.

Therefore after July 1st we will see many more properties being tested, and more properties failing, under the new stricter guidelines. Whether you live in Oshawa, Kitchener, Peterborough, Barrie, or Mississauga - it's assured you will have more contaminated sites.

There is however hope for some contaminated sites, often referred to as ‘Brownfields’. The Ministry of Environment has introduced a new "Modified Generic Risk Assessment" (MGRA) model, which will allow some contaminated sites to be deemed acceptable for redevelopment (which is one of the stated goals of the new legislation: streamlining the process for redeveloping Brownfield sites).


Next week: Are Risk Assessments risky?

Phase I and II Environmental Site Assessments, Toronto and beyond. Why are they costing more?

In the last blog we saw that whether you're in Toronto, London, Ottawa or even Sault Ste. Marie after July 1, 2011 a typical Phase 1 environmental site assessment will cost commercial real estate clients more money and take longer to complete.

Leaking drums at a GTA site

While many commercial real estate professionals are upset with this, there are even more significant changes that could make a 60 or 90-day close on commercial / industrial properties a thing of the past.

Amendments to Ontario’s regulation, O. Reg 153/04, Records of Site Condition, make reference to a seemingly innocuous term called "potentially contaminating activities" (PCA). PCA's are industrial activities which produce pollutants that could contaminate a property, and the Ministry of Environment (MOE) has indentified 71 different PCA's.  Examples include paint manufacturing, metal working, fuel storage, etc. (See May 4, 2011 blog for the complete PCA list).



"Brownfield" site, Toronto

 PCA's are actually well known in the environmental engineering field, but the new regulations require that when a PCA is found at a site currently or anytime in the past, then the Phase 1 report must recommend that a Phase II environmental site assessment be performed to test the soil and groundwater for contamination.

In essence the MOE is taking decision-making out of the hands of the engineer and requiring them to recommend lab testing to ensure the site is clean. While this attempt to remove human error or human influence from the process may be well-intended, the resulting financial implications for commercial deals will be significant.

More commercial and industrial properties will require a Phase II ESA and have lab results confirm the site is “clean”, in order for a transaction to be approved by a bank or finance company.

The costs of a Phase II vary with each property but here is a general rule of thumb: a Phase II environmental site assessment done on a 1.5 acre industrial property with a 10,000 square-foot building will run approximately $10,000-$15,000. That’s not too bad but the problem is the extra time it will take to complete the Phase II ESA: 4 - 6 weeks.

However having to get a Phase II ESA is not the biggest concern. More important is whether the site passes the lab tests for environmental contamination. In the next blog we will discuss the implications of Phase II’s and why more sites will fail under the new guidelines.

Next week: How Greenfields become Brownfields.

Why Phase 1 ESA's will take longer and will cost more in Ontario

As we discussed in the last blog Ontario’s new environmental legislation, Ontario Regulation 153/04, Records of Site Condition, will become law on July 1st.

One of the main goals of the new legislation is to "streamline" the site assessment process, thereby allowing contaminated properties to be remediated more efficiently.

However for Phase 1 Environmental Site Assessments (ESA) “streamline” does not mean “quicker” or “less expensive”. Read on.

Under the new regulations the QP (“Qualified Person”) who prepares the report must consider the impact of all properties within a 250 metre radius of the subject, what is known as "Phase One Study Area". While it has always been within a QP’s discretion to investigate any property near the subject, in practice most Phase 1’s only considered the immediate neighbours.

And given that the QP must research both the current and historical usage of every property within 250 metres, this alone will significantly increase the time and cost of a Phase 1 ESA. Regardless of whether it is a major Brownfield cleanup in Hamilton or a simple commercial condo sale in Toronto.  

A recent survey of leading environmental engineering firms in Ontario indicated the average Phase 1 ESA will take 10 days longer to prepare, and will see costs increase from an average price of $3200 to over $5000 (in some cases firms are simply doubling their prices).   

Next blog we will look at an even greater impact on environmental costs for a typical commercial/industrial transaction: “Potentially Contaminating Activities”.

Ontario's new environmental legislation: Implications for Commercial Real Estate Professionals from Toronto to Thunder Bay

On July 1st Ontario's new environmental legislation, Ontario Regulation 153/04, Records of Site Condition, will become law.

So what is the impact for commercial real estate professionals?

At first glance it would seem 'not much', but changes to the legislation could significantly impact both the cost and time it takes to close even a simple commercial deal.  Whether you are redeveloping a Brownfield site in Kitchener, selling an industrial building in Toronto or just getting refinancing on commercial office condo in Ottawa, the new environmental regulations will effect your deal. 

Over the next month, leading up to July 1^st, I will cut through the 147-page O. Reg 153/04 and highlight important changes, so you can be better prepared to advise your clients. Today we will look at changes to the Phase 1 Environmental Site Assessment (ESA).

First we need to clarify some terminology which should be familiar to most readers but is still very important.

A Phase 1 ESA is a report prepared by a “Qualified Person” (QP), typically an engineer, which investigates a property to determine the “likelihood” of environmental contamination. No analytical testing is done for the Phase 1.

The current accepted Phase 1 ESA standard is the CSA Z768-01, however after July 1, 2011, if you require a “Record of Site Condition” to be filed the new O. Reg. 153/04 standard must be used.

A Record of Site Condition (RSC), is a legal a statement filed by a QP to protect property owners from environmental cleanup orders and it must be filed whenever a property changes to a ‘more sensitive use’.  An example of ‘sensitive use’ is redeveloping a former gas station site for a condominium. The QP uses a Phase 1 and (often) a Phase 2 ESA to support the filing of the RSC.

So what if you site is not changing its use and do not require a RSC? Eg. A sale or refinance of a commercial / industrial building with no plans for redevelopment.

Are you legally required to use the new Phase 1 standard? No.

Will a lender require you to use the new standard? Maybe.

We all know banks and lenders have their own underwriting policies, so don’t be surprised if they require the Phase 1 ESA for your site be done to the new O. Reg. 153/04 standard.

However if your client’s property is not being redeveloped, the question you should ask the lender is “Will you accept the CSA standard for a Phase 1?”.  If the answer is “No”, ask them “Why not?”.

The worst they can say is “No, use the new regulations”. But if they say “Yes, use the CSA standard” you may save your client thousands of dollars and at least two weeks in time to prepare a Phase 1 ESA.  

Next Blog: Why the new regulations will mean Phase 1 ESA’s will take longer and will cost more.

Mould Control in Toronto, GTA and all of Ontario

Microscopic Mould

Gone are the days when Mould (or Mold - both spellings are acceptable) was simply the ‘nasty black stuff’ growing on a wall that was cleaned up with some bleach.  Today we are more aware of indoor air quality and that exposure to mould can cause a wide variety of illnesses. Symptoms such as allergenic reactions or asthma attacks, can progress into severe and chronic ailments with prolonged exposure. 

It doesn't matter where you live: Mississauga, Waterloo or Barrie, mould is everywhere. It’s in the air we breathe and grows on virtually any surface. In fact there are over 1,000 species of mold in Canada. So what can you do to protect yourself from mould and maintain reasonable indoor air quality?

'Black' Mould in house in Toronto

Control the Moisture, Control the Mould.

Mould requires water to grow, so it is important to prevent moisture problems in buildings. When poor ventilation is mixed with high humidity, often caused by leaking roofs and basements, the right environment for mould growth is created. Under these conditions visible mould can appear in 24 hours and will flourish, if left unchecked, eventually becoming airborne spores. 



"Grow Op" home in Markham

 What do you do if you see or suspect you have mould? It is recommended you get a qualified mold inspector to do an assessment. Many home owners have unwittingly made their mould situation worst by attempt to remedy the problem themselves.  

The inspector will test and safely remove the mould, while keeping everything outside the contamination area free from spores.  Indoor air quality testing performed before and after the clean-up, will confirm the mould has been effectively removed.

Thanks to Ross Sullivan of Mold.ca for contributing to this blog.  Mold.ca is Canada's leading mold inspection and removal firm.