Bankruptcy and Insolvency – New Reporting Requirements for Lands Used for Specified Industrial or Commercial Activities
by Will Shaw, Noor Mann
Published: January, 2021
Submission: January, 2021
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On February 1, 2021, amendments to B.C.’s Environmental Management Act will come into effect that will introduce new reporting requirements in relation to lands that have been used for specified commercial or industrial uses (the Stage 13 Amendments). Owners or operators of those lands who seek protection under the Companies’ Creditors Arrangement Act (CCAA) or the Bankruptcy and Insolvency Act (BIA) must submit information to the Ministry of Environment about the land in question. Similarly, receivers, trustees, liquidators and those who take control or possession of such lands through foreclosure proceedings must also submit information to the Ministry of Environment about the land in question.
In some cases, the reporting requirements will also trigger requirements to conduct environmental investigations to determine whether there is contamination on the lands. The Ministry of Environment will enter the information into its Site Registry as part of its efforts to create a consistent and comprehensive record of potentially contaminated sites across the Province.
Site Disclosure Statements
These new reporting requirements relate to lands that owners, operators, receivers, trustees, or liquidators know or reasonably should know, have been used for a specified industrial or commercial use – that is to say, one of the uses listed in Schedule 2 of the Contaminated Sites Regulation (Schedule 2 Activities). If one of the Schedule 2 Activities has taken place on the land, then the owner or operator may be required to submit a Site Disclosure Statement in relation to that land.
The Site Disclosure Statement provides a summary of prospective and historical use of the land, includes a list of those Schedule 2 Activities that have taken place on the land and summarizes the intended activities or use of the land going forward. It also requires the person filling out the form to provide a statutory declaration that the information contained therein is true, to the best of their knowledge.
Companies’ Creditors Arrangement Act and Bankruptcy and Insolvency Act triggers for Site Disclosure Statements
Under the Stage 13 Amendments, owners and operators must submit Site Disclosure Statements to the Site Registrar if they become subject to BIA or CCAA proceedings. Specifically, an owner or operator must submit a Site Disclosure Statement if they:
The requirement for Site Disclosure Statements may also be triggered by those who take possession of real property through bankruptcy and insolvency legislation. Trustees, receivers, liquidators or any other person who commences foreclosure proceedings and who takes possession or control of the land for the benefit of any creditors must also file a Site Disclosure Statement with the Site Registrar if the person knows or reasonably should know that the land has been used for a Schedule 2 Activity. The Stage 13 Amendments are silent on any additional specific duties, if any, a court appointed monitor under the CCAA may have with respect to Site Disclosure Statements.
The Stage 13 Amendments impose relatively tight turnarounds for filing Site Disclosure Statements. If a person is seeking protection under the CCAA or the BIA, they will have 90 days from seeking that protection to file the Site Disclosure Statement. If a person takes possession or control of real property as a trustee, receiver, liquidator, or through foreclosure proceedings, that person has only 10 days to file the Site Disclosure Statement.
The Site Disclosure Statement will also automatically trigger environmental investigation requirements for those who take control or possession of lands through bankruptcy and insolvency legislation. If a person takes possession or control of land through such legislation, they must conduct a Preliminary Site Investigation as to the environmental condition of the land. If that Preliminary Site Investigation indicates that the land is contaminated, they must also conduct a Detailed Site Investigation. These investigations can cost thousands of dollars and may trigger further investigation and remediation requirements. These reports are due one year from the submission of the Site Disclosure Statement.
For those who seek protection under the CCAA or the BIA, the requirements are somewhat less onerous. A person who triggers the CCAA or BIA requirement for a Site Disclosure Statement must provide a Director of Waste Management all reports in the person’s custody or control about the environmental condition of the land in question that have been produced within the past 5 years. The person must provide those reports within 30 days of submitting the Site Disclosure Statement.
Additional information for Receivers, Trustees, and Liquidators
The existing protections in the Environmental Management Act and Contaminated Sites Act for receivers, trustees, and liquidators will continue after the Stage 13 Amendments come into force. Receivers, trustees, and liquidators will generally not be personally responsible for the remediation of a contaminated site so long as they have not exercised control or imposed requirements in relation to the manner of treatment, disposal, or handling of potentially contaminating substances at a site. However, receivers, trustees, and liquidators are obliged to comply with the applicable cleanup requirements for the site to the extent that there are funds available to do so. The Ministry of Environment has provided a Fact Sheet that identifies potential remediation liability for receivers, sureties, and trustees.
The Stage 13 Amendments will impose requirements on other owners and operators of lands that have been used for Schedule 2 Activities. See our blog post here for a discussion of how the amendments will affect those who seek to develop lands used for Schedule 2 Activities. See our blog post here for a discussion of the reporting requirements when decommissioning or ceasing operations on lands used for Schedule 2 Activities.
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