Significant Amendments to Ontario's Brownfields Regime
January 13, 2010 by Lana Finney
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.
1. Record of Site Condition Integrity
2. Streamlined Risk Assessment
The changes that will take effect July 1, 2011 include:
4. Complementary Amendments
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:
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.