Canada: Ontario Proposes Amendments To Brownfield Regulation

Last Updated: April 8 2009
Most Read Contributor in Canada, September 2016

In October 2008, the Ontario Government proposed amendments to Ontario Regulation 153/04, Brownfields Records of Site Condition. If passed, the proposed amendments will implement the balance of the legislative reforms made to the Environmental Protection Act and Ontario Water Resources Act in 2007. Highlights of the proposed amendments, which were posted for comment on the Environmental Registry, include: the process involved in submission of records of site condition and environmental site assessments; offsite liability protection; streamlined risk assessment; and strengthened soil and groundwater site condition standards.

Submission Of Records Of Site Condition ("RSC") And Environmental Site Assessments ("ESAs")

Under the proposed amendments, the Ministry of the Environment would advise the property owner within thirty business days if the submitted RSC can be filed or if the Ministry will undertake a technical review. Minimum requirements would be set for conducting Phase One and Phase Two ESAs. In addition, conflict of interest requirements may affect a "Qualified Person" or his or her employer if such person holds a direct or indirect interest in property that is the subject of a RSC, risk assessment, or ESA.

Offsite Liability Protection

The proposed amendments would clarify off-site liability protection by specifying what concentration of contaminants migrating off-site would result in loss of liability protection. The proposed amendments would also set out the requirements for eligible property owners to obtain off-site liability protection, namely, by undertaking additional work and making additional certifications in the RSC.

Streamlined Risk Assessment

As an alternative to meeting generic standards and the traditional risk-based assessment process, the proposed amendments would provide practitioners with a Ministry-approved Modified Generic Risk Assessment model via a web-based tool that would allow applicants to modify the Ministry's generic site condition standards for use in a RSC. The model could be adjusted to match the applicant's site-specific conditions.

Strengthened Soil And Groundwater Site Condition Standards ("SCS")

The proposed amendments would update SCSs for soil and groundwater to reflect advances in science as well as include new standards for several contaminants. Various technical amendments to complement the Brownfield reforms are also included in the proposed amendments.

The comment period for the proposed amendments closed on February 10, 2009 and the Ministry is now considering comments that were received.

Ontario's Green Energy And Green Economy Act, 2009

On February 23, 2009, the Ontario Government introduced Bill 150, the Green Energy and Green Economy Act, 2009 ("Bill 150").

Bill 150 represents a departure from the way in which renewable energy projects have been governed in Ontario to date. If enacted, Bill 150 will amend twenty-one statutes with the purpose of streamlining approvals and increasing investment for renewable energy projects as well as promoting conservation, energy efficiency, and the growth of a "green economy."

Under Bill 150, "renewable energy sources" will include wind (onshore and offshore), hydro, biomass, biogas, biofuel, solar, geothermal, and tidal projects. Bill 150 also leaves open the possibility of expanding the definition of renewable energy sources further by regulation.

Key amendments of Bill 150 include:

  • Significant amendments to the electricity sector, including the creation of a feed-in tariff regime, implementation of a "Smart Grid", and certain guaranteed connections to the grid.
  • Streamlining the approval process to provide a one-stop shop for renewable energy projects. Eligible projects will be issued one "renewable energy approval" within six months of submitting all documentation instead of the various listed approvals currently required.
  • Elimination of a severance consent for land leased for a period of less than 40 years for a renewable energy generation facility or project under Ontario's Planning Act. Official plans as well as certain orders, agreements, and by-laws (including site plan approval, minor variances, zoning by-laws and demolition control) will not apply to a renewable energy generation facility or project.
  • Opportunities for municipalities to generate electricity through a municipal corporation, a municipal service board, a city board, or a municipal service corporation if the renewable facility does not exceed 10 megawatts or as prescribed by regulation.
  • Amendments to Ontario's Building Code to include energy conservation.
  • New energy efficiency standards for public sector buildings and prescribed household appliances and products. Energy audits may also be required prior to housing sales.
  • Opportunities (including potential funding) for Aboriginal communities to build, own, and operate renewable energy projects.

Bill 150 received second reading in the Ontario Legislature on March 11, 2009 and is currently undergoing committee review. Important details relating to the implementation of Bill 150's stated objectives will likely be covered in regulations that have yet to be released.

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