Copyright 2010, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, January 2010
After almost 18 months of consultations and internal deliberations, the Ontario Ministry of the Environment (MOE) has released the final version of the 2007 proposed amendments to its "Brownfields" regulation. This regulation is entitled the Records of Site Condition Regulation – O. Reg. 153/04, after the key document that provides for the certification by a landowner and his or her environmental consultant, that they have complied with the regulation's prescribed site assessment rules and the detailed soil and groundwater standards that establish what is considered a contaminated or clean/remediated site. The regulation is intended to facilitate, if not encourage, the redevelopment of Brownfield sites.
A Record of Site Condition (RSC) must be filed whenever a property use changes to a more sensitive use as determined under the regulations. Otherwise, it is open to any landowner to file an RSC with the MOEadministered Environmental Site Registry in order to confirm that a property complies with the Ontario soil and groundwater standards, including site-specific riskassessed standards, and obtain a degree of immunity from future government remediation orders.
The amendments to the RSC Regulation, which for the most part do not take effect until July 1, 2011, are said by the government to "include a more predictable and transparent process that will hopefully clarify what environmental site assessment work must be done to submit an RSC".
The regulatory changes include:
- Specified minimum requirements for environmental site assessments (both Phase I and II ESAs)
- Changes to the RSC submission and filing process
- Strengthened Soil and Groundwater Site Condition Standards
- New conflict of interest restrictions for qualified persons.
Environmental Site Assessment Requirements
New Phase I ESA requirements include:
- Minimum requirements:
- Records review
- Site reconnaissance
- Review and evaluation of information
- Determining whether a Phase II ESA is required based on identification of potentially contaminating activities and property use.
- Developing a Phase I conceptual site model to:
- Provide a summary of site conditions
- Determine whether a Phase II ESA is required
- Communicate the results to the property owner.
New Phase II ESA requirements include minimum requirements for planning and conducting the site investigation; interpreting and evaluating information; and reporting. Additional optional assessments are specified for a modified generic risk assessment (see below).
- A Phase II conceptual site model that provides a summary of the review and evaluation and any need for remediation and/or risk assessment.
Streamlined Risk-Assessment Process (Modified Generic Risk Assessment)
A new "modified generic" or streamlined risk assessment has been created to provide an alternative to meeting generic standards and the traditional risk assessment, where appropriate. This streamlined approach is expected to be less time-consuming and more cost-effective.
Once the amendments are in effect on July 1, 2011, a modified generic risk assessment can be prepared using a web-based "approved model". This will allow for convenient and controlled modification of the Ministry's generic site condition standards for use in an RSC.
The model can be adjusted to match an applicant's site-specific conditions, supported by site-specific data. Modification of any parameters must satisfy requirements laid out in Schedule E Table 4 (Phase Two Environmental Site Assessment Requirements for Modified Generic Risk Assessments) of the RSC Regulation. Site characterization requirements are intended to ensure any changes from the default parameters are appropriate and representative of the property.
The model can be adjusted to include site-specific conditions such as:
- Soil type
- Fraction of organic carbon (soil and aquifer)
- Distance to closest surface water body
- Minimum depth below grade to the highest water table
- Aquifer horizontal hydraulic conductivity and gradient
It can also be used to define incomplete exposure pathways:
- Simple risk management measures designed by the ministry (three types of caps and three types of building controls)
- Meeting soil vapour screening levels (supported by site-specific data)
- Modified ecological potential.
Strengthened Soil and Groundwater Site Condition Standards
The site condition standards contained in the current 2004 Ontario publication – Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act, March 9, 2004 – were based on science available prior to 1996 and the MOE was of the view that they required updating. These changes also take effect as of July 1, 2011 and include the following:
- Improved models for soil and groundwater
- Protection for additional ecological species
- Updated toxicity information and strengthened standards
- New standards developed for several contaminants:
- Dioxane – 1,4
- Hexane (n)
- Petroleum hydrocarbons in non-potable groundwater
- Standards for shallow soil properties and properties within 30m of a water body have been clarified:
- Two new tables will apply to shallow soil properties
- Two new tables will apply to properties within 30m of a water body
- A previous table, Extract and Groundwater Standards, was removed.
For example, the following selected changes will occur to the existing named generic non-potable groundwater standards (Tables 3 and 5), depending upon the described soil conditions:
1,900 μg/L (2004) – coarse soil – 44 μg/L (2011)
12,000 μg/L (2004) – medium/fine soil – 430 μg/L (2011)
28,000 μg/L (2004) – coarse soil – 2,300 μg/L (2011)
50,000 μg/L (2004) – medium/fine soil – 2,300 μg/L (2011)
5.0 μg/L (2004) – coarse soil – 1.6 μg/L (2011)
5.0 μg/L (2004) – medium/fine soil – 17 μg/L (2011)
5,900 μg/L (2004) – coarse soil – 18,000 μg/L (2011)
37,000 μg/L (2004) – medium/fine soil – 18,000 μg/L (2011)
50 μg/L (2004) – coarse soil – 1.6 μg/L (2011)
50 μg/L (2004) – medium/fine soil – 17 μg/L (2011)
5,600 μg/L (2004) – coarse soil – 4,200 μg/L (2011)
35,000 μg/L (2004) – medium/fine soil – 4,200 μg/L (2011)
There are other complementary and transitional amendments to the RSC Regulation, which are all described, along with various supporting documents, at the Ontario Environmental Bill of Rights website. To access the site, click here. (http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA0NTcw&statusId=MTYzMDcw&language=en)
These changes are significant and will present a challenge to long-term remediation projects that will not be completed before July 1, 2011. In many cases, clean-up projects will become more expensive under the generic standards. Hopefully, some of the changes proposed to improve the site-specific risk-assessment process will be successful. While the transitional provisions will respect completed RSCs and allow remediation projects commenced prior to December 31, 2010 to be completed under the 2004 standards, this only affects the ability to file an RSC with the government and obtain protection from government remediation orders. It will not affect the view of the marketplace – purchasers and lenders, who will clearly seize upon the new standards as the definition of clean soil and groundwater. For all intents and purposes, the new standards will start to take effect this year.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.