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The Ontario Ministry of the Environment has quietly adopted sweeping changes to the regulation of brownfields and other contaminated sites. Some of the changes were extensively reviewed with stakeholders during the past three years; others were surprises: See the 87 pages of Regulation 511/09 at http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_040153_e.htm.

The most important change will be the new standards for how clean is clean, which are dated July 27, 2009, but were posted today and which will come into effect on July 1, 2011. They are much more stringent than existing standards for many parameters, and will be only partly offset by the new, Tier 2, simpler approach to risk assessment. This will make redevelopment of brownfields more expensive for many sites. For example, the acceptable level of benzene in non-potable drinking water will plunge from 1900 ppb to 44.

Here is the MOE’s summary of the changes:

Amendments address the following areas:

    1. Enhanced Record of Site Condition (RSC) Integrity
    2. Streamlined Risk Assessment
    3. Strengthened Standards
    4. Other Technical Improvements
    5. Implementation and Transition

1. Enhanced Record of Site Condition (RSC) Integrity:

• Transparent RSC submission and filing process

    o All completed RSCs will be checked by the Ministry of the Environment within 30 business days.
    o Selected RSCs will go through a desktop technical review (and a subset of these will go through a Field Review)

• Environmental Site Assessment (ESA) Requirements set clear rules on minimum requirements for Phase One and Phase Two ESAs:

    o The regulation prescribes requirements consistent with various jurisdictions including those set by Geoscience and Engineering best practices in Ontario, Canadian Standards Association, and international bodies.
    o Key aspects of a Phase One ESA include: records review, interviews, site reconnaissance, review, evaluation and report preparation.

• Clear provisions for QPs and conflict of interest.

2. Streamlined Risk Assessment:

A new modified generic risk assessment (also referred to as Tier 2) provides an alternative to meeting generic standards and the traditional risk assessment process where appropriate. This streamlined approach will provide a timelier and more cost-effective option for proponents in the province.

3. Strengthened Standards

The Ministry of the Environment updated standards for approximately 120 chemicals to reflect advances in science and be consistent with those of other leading jurisdictions.

The ministry has provided a flexible approach to standards by providing several generic tables for use in various land use scenarios and physical settings and also offers the risk based alternative of developing property specific standards through risk assessment.

4. Other Improvements to O. Reg. 153/04

Other necessary technical amendments supporting implementation of the new legislation, including setting clear standards for quality of soil brought to brownfield properties.

5. Implementation and Transition

The amendments will come into force on July 1, 2011 (approximately 18 months) after the regulation is filed. For those who qualify under the transition provisions, an additional 18 months will be provided. Grandfathering will only apply to soil, ground water and sediment standards (not for the new ESA requirements).

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