As announced here last week, the Ontario government has quietly adopted significant and long-awaited changes to the brownfields regulation, O. Reg. 153/04 (Records of Site Condition). The amending regulation was made December 9 and filed December 29 with no fanfare. Not even a press release can be found on Ontario government websites. Some of the changes were the subject of extensive consultation with stakeholders over the past several years. However, other changes are brand new and will take some time to digest.
The most significant change is the introduction of new "Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act." These are standards for determining whether a property is "clean enough" for an intended land use. The new standards, which were only posted on the Environmental Registry last week, are dated July 29, 2009. However, the new standards do not take effect until July 1, 2011. They provide for more stringent standards for many chemical parameters. In addition, standards have been added for parameters that were not included in the previous version of the standards dated March 9, 2004. As a result of the more stringent standards for many parameters, it is widely expected that the redevelopment of brownfield sites will be more time-consuming and costly than in the past. This would seem to run counter to the stated intention behind the Regulation to facilitate the reuse of brownfields properties.
The amendments, many of which do not take effect until July 1, 2011, can be grouped into the following 5 areas:
1. Record of Site Condition Integrity
A Record of Site Condition (an "RSC") must be filed whenever property use changes to a more sensitive use as determined under Part XV.1 of the Environmental Protection Act and O. Reg. 153/04. The Ministry says that the amendments pertaining to the filing of RSCs will result in consistency in environmental site assessments leading to greater confidence in RSCs. The changes include:
- Specified minimum requirements for conducting and supervising Phase One and Phase Two environmental site assessments
- Changes to the RSC submission and filing process, including provision for the Ministry to conduct a technical review before the RSC can be filed.
- New conflict of interest restrictions for qualified persons who conduct environmental site assessments.
2. Streamlined Risk Assessment
Risk assessment is an option for property owners who want to file an RSC when their property does not meet the generic site condition standards. It can be very time-consuming to obtain Ministry approval of a full risk assessment. As such, the Ministry has introduced a streamlined risk assessment process intended to expedite brownfields development. Once the amendments are in effect July 1, 2011, a modified generic risk assessment can be prepared using a web-based approved model.
3. New Standards
The March 9, 2004 standards were based on science available prior to 1996 and required updating. In March 2007 proposed new standards were posted on the Environmental Registry. Many concerns with the proposed standards were raised by stakeholders and the scientific community. Further changes were made and another set of proposed standards were posted in October 2008. The final form of the standards can be found in a document dated July 27, 2009 and posted on the Environmental Registry last week. The Ministry says the new standards "reflect changes made as a result of comments received from both postings and consultations with stakeholders and the brownfields redevelopment community. The amendments update standards to reflect advances in science, strengthen protection of human health and the environment and increase confidence in RSCs."
The changes that will take effect July 1, 2011 include:
- Improved models for soil and ground water
- Protection for additional ecological species
- Updated toxicity information
- New standards for several contaminants:
o Dioxane – 1, 4
o Hexane (b)
o Petroleum Hydrocarbons in non-potable groundwater
- As well, standards for shallow soil properties and properties within 30m of a water body have been clarified with two new tables applying to shallow soil properties and two new tables will apply to properties within 30m of a water body
4. Complementary Amendments
A series of additional amendments have been made for the stated purpose of supporting the overall goal of brownfields reform by clarifying various technical matters for property owners and people supervising or conducting environmental site assessments or site remediation activities. These amendments pertaining to soil brought to an RSC property include the following provisions:
- Soil may be brought to an RSC property provided it will meet the applicable generic standards or standards specified in an approved Risk Assessment for the property that includes a soil management plan.
- Soil can be brought to any RSC property if it meets the standards in Table 1 of the Soil, Ground Water and Sediment Standards.
- Soil samples must be collected and analyzed before the soil is brought to the property.
The amendments set conditions on the properties to which soil may be brought (other than where the soil meets Table 1 standards) to reduce the likelihood that soil with contaminants present will be brought to a property where none previously existed. These conditions include:
1. The property is being used or was used in whole or part as an industrial property or a specified commercial property (e.g. gas station, dry cleaners);
2. A potentially contaminating activity on, in or under the property has been identified as occurring or having occurred;
3. No previous RSC has been filed, and
4. A contaminant of concern has been identified.
5. Implementation and Transition
In general, the regulatory amendments are intended to come into effect on July 1, 2011. For RSCs that have already been filed, a change in standards or other regulatory rules will not impact them. Furthermore, all existing RSCs will continue to provide owners the same limited immunity from Ministry orders as in the past. However, moving forward, the Ministry will require that the new rules must be met.
The amended Regulation includes transition rules, which purport to provide a balanced and fair approach to implementing the amendments. They recognize that some complex redevelopment projects that may be underway will not have reached the stage of submitting RSCs prior to July 1, 2011, when the amended regulation comes into effect. As a result, the transition rules allow a property owner to continue to submit a RSC based on the March 9, 2004 standards allowing additional time to complete projects beyond July 1, 2011, if necessary, provided the owner follows the rules and submits an RSC before January 1, 2013. In order to take advantage of transition provisions, notice has to be provided to the Ministry between July 1, 2010 and December 31, 2010 and the owner must certify that certain requirements have been met.
Click here for a link to the posting of the amended Regulation on the Environmental Registry.
Please contact any member of our Municipal, Planning and Environmental Law group if you have questions about how the amended Regulation will impact you or your business.