Important changes re brownfields

Ontario has proposed significant changes to Reg.153/04, the regulation that governs contaminated sites. Some of the changes are supposed to reduce obstacles to reuse of contaminated sites, by implementing statutory amendments made in the 2007 Budget. Other changes, however, will increase the obstacles, including new or more stringent standards for numerous contaminants, and an additional 30 business day delay in every Record of Site Condition. As a result, many sites that now count as “clean” will no longer be “clean”; a few that now count as contaminated will be considered clean. The combined effect of the changes seems likely to discourage brownfield revitalization, especially during a credit crunch.

The proposed amendments include:

1. – Strengthened Soil and Ground Water Site Condition Standards. Existing Schedules will change substantially, with new parameters added and many criteria changed.  For example, the acceptable level of benzene on Schedule 3 residential sites (most urban areas) drops three orders of magnitude, from 25 ug/g to 0.049. In addition, there will be a renewed emphasis on evaluating contaminants for which no criteria are specified in the Schedules.  
2. As a result, about half the properties that presently qualify for generic RSCs will now require Risk Assessment.
3.  On the other hand, cleanup at a few sites will be easier. for example, sensitive sites (such as those with shallow soils or within 30 metres of a watercourse) will not necessarily have to be cleaned to background conditions; specific Schedules are now provided for them. In addition, a permissible contaminant levels at a number of sites have actually increased; for example, the permissible level of PCBs in non-potable groundwater will rise from the 0.2 to 14 ug/L.

1. – Stricter rules for completion of Records of Site Condition (RSC), including tighter timelines and more detailed lists of what must be done to complete a Phase I or II ESA. For example, Qualified Persons will be required to prepare conceptual site models. Phase I or II ESAs will require a survey and will have a presumptive validity of only one year without additional review. If the Qualified Person is denied full access to the site, they can no longer complete a Phase I or II ESA.
2. –  An additional 30 business day MOE review period between submission and filing of an RSC. Hopefully, this will resolve concerns about post-filing MOE complaints about the validity of RSCs. However, it is not clear what the MOE will consider to be “defects” in RSCs.
3. – The opportunity to acquire protection from “reopening” RSCs in case of post-certification Off-Site Migration from the RSC Property. This additional protection will require groundwater monitoring and other  additional work during the RSC process, plus confirmation that the groundwater at the RSC property meets the generic standard for the most sensitive property within 60 metres;
4. – A simplified “Tier 2” Risk Assessment Approach, which hopefully can be used for some of the sites that will require risk assessment because of the new standards.
5. – Revised rules on who can act as a Qualified Person. This will now be largely determined by the Professional Engineers and the Professional Geoscientists of Ontario.

Because of the magnitude and importance of the changes, comments may be made until February 3, 2009.