Brownfields are underdeveloped or previously developed properties that may be contaminated. They are often, but not always, former industrial or commercial properties.
The Ontario legislative framework for brownfields was established in 2001 through the Brownfields Statute Law Amendment Act, 2001. Legislative and regulatory amendments were made to a number of Acts, including the Environmental Protection Act (EPA) to facilitate brownfields redevelopment. Under the EPA and Ontario Regulation (O. Reg.) 153/04 (Records of Site Condition, Part XV.1 of the Act) a Record of Site Condition (RSC) must be filed whenever property use changes to a more sensitive use (e.g. industrial to residential).
In In 2007, the legislature passed a set of new provisions that would address identified barriers to brownfield redevelopment. The reforms received Royal Assent on May 17, 2007 as part of the Budget Measures and Interim Appropriation Act, 2007.
On December 29, 2009, extensive amendments to O. Reg. 153/04 were filed as part of O. Reg. 511/09. Most of the regulatory amendments come into effect July 1, 2011. Amendments to O. Reg. 153/04 implement the legislative reforms passed in 2007.
The amendments filed in December 2009 addressed the following areas:
- Enhanced Record of Site Condition (RSC) Integrity: Provide a more transparent, timely and efficient Record of Site Condition submission and filing process; New environmental site assessment (ESA) requirements set clear rules on minimum requirements for Phase One and Phase Two ESAs
- Streamlined Risk Assessment: Enhance environmental protection through clear site assessment requirements and updated standards
- Strengthened Standards: Introduce a new streamlined risk assessment process
- Implementation and Transition: Provide a smooth transition for redevelopment projects
- Provide other Technical Improvements
Through ongoing consultation, and the development of education and guideline material to support the July 1, 2011 implementation date, the Ministry of the Environment has identified a few specific sections in the regulation and the referenced documents which it is proposing be further amended to help facilitate a smooth and efficient implementation of the regulation.
The amendments now proposed are technical and are consistent with the policy intent of the existing O. Reg 153/04, as amended in December 2009. The proposed amendments clarify the intent and scope of certain provisions, correct for minor errors and incorporate new data, all in support of the safe and efficient redevelopment of brownfield sites.
The proposed amendments include:
A. Improvements to the standards:
- Addition of new Petroleum Hydrocarbons (PHC) background numbers: Through a cooperative sampling and analysis program with stakeholders, the ministry has produced background numbers for Petroleum Hydrocarbon Fractions, as well as new, more reliable background numbers for benzene, toluene, ethylbenzene, and xylenes (BTEX). Amending the background standards would ensure that the best available data is used and would benefit redevelopment through greater soil retention and reduced land filling of soils that meet background standards.
- Improvements to address aquatic protection for sodium: Precise quantitative toxicity information is not available for sodium and as a result, in non-potable scenarios, the ground water standard for sodium currently defaults to the potable standard. The Ministry recognizes that this could pose problems where analysis for salt-related parameters at certain sites may fail the potable standards. The Ministry is proposing to use the chloride standard for sodium. Using chloride will ensure protection while addressing potential concerns with implementing an unnecessarily stringent standard.
- Correct errors in the approved model, which impact standards:
a) Error in referencing: Within the approved model, a referencing error results in errors in a few standards. The error results in 9 subsurface soil numbers for fine/medium textured soils in Table 4 (potable) and 23 subsurface soil numbers for medium/fine textured soils in Table 5 being too high by factors up to just less than 4.
b) Source depletion assumption: Improvements are proposed to the model to account for a source depletion assumption that should have changed when sub-surface concentrations were increased. This error affects subsurface commercial industrial standards only, and would change 6 numbers in Table 4 and 9 numbers in Table 5.
B. Improvements to Modified Generic Risk Assessment (MGRA) model that do not impact standards, and Process for Updating MGRA:
These are non-regulatory changes which are also being posted at this time. These minor changes include improvements for consistency; correction of errors in references, assumptions and typos. Also, the changes correct the ecological values for tetrachloroethane 1,1,2,2 and tetrachloroethylene. This error does not affect any standards.
The Ministry is also posting a description of the process to be used to update the MGRA in the future. Since the MGRA is a rolling incorporation, it can be updated by the Ministry from time to time, based on advancements in science, consultation with stakeholders and assessment of environmental and health risks.
C. Ensure consistency between Modified Generic Risk Assessment (MGRA) and Ontario Regulation 153/04:
The list of parameters a Qualified Person can modify from default values in an MGRA is included in the regulation, in Table 4 of Schedule E. An oversight in developing the list occurred and the Ministry proposes to correct the regulation as follows:
It was intended that both “Number of Frozen Days per Year” and “Aquifer Dry Bulk Density” be modifiable in an MGRA. This provides additional flexibility meaning that the MGRA better reflects specific site conditions and may develop site specific standards less stringent than those developed if that parameter was not modified.
D. Clarify which wells are to be captured in Section 35 of O. Reg. 153/04:
The current definition of “well” in the regulation captures wells for which water does not have to be potable, such as dewatering wells or industrial wells. By capturing such wells in the definition it could, unintentionally, require the use of potable standards for filing a RSC within 250m of such wells. The ministry proposes to clarify that potable standards be associated with wells that are used or are intended for use as a source of water for agriculture or human consumption.
E. Clarify what standards are applicable to “arenas”:
O. Reg. 153/04 was amended to ensure a record of site condition (RSC) would be filed for a property use change to an arena-type use to ensure they meet appropriate site condition standards given children often use these facilities for active recreational activities, for prolonged periods of time. The manner in which this change was made also applied more stringent standards to arenas than was necessary.
Also, some stakeholders have identified this change as creating an inconsistency, given it captures arenas, in a broad sense, while it does not capture other similar uses, including gymnasia, which may also be used by active children for prolonged periods of time. Conversely, it includes some uses, such as armouries, which were not intended to be required to file an RSC.
To achieve consistency while not forcing overly stringent standards , the Ministry is proposing to amend O. Reg. 153/04 to specify that arenas and similar uses are a community use, not parkland, but that an RSC is required in situations where there is a change of use which would result in the development or use of a building for an indoor arena, indoor swimming pool, indoor gymnasia or indoor sports field. It is important to note that outdoor recreational uses would continue to be required to meet parkland standards.
F. Changes to the Potentially Contaminating Activities list:
As part of the recent amendments to O. Reg. 153/04 the ministry included provisions requiring the submission of a phase two environmental site assessment when during a phase one environmental site assessment of the property, a potentially contaminating activity is identified on, in or under the property. Potentially contaminating activities (PCAs) are listed in Table 2 of Schedule D of the amended regulation. The Ministry recognizes that certain PCAs listed may be interpreted too broadly and that modifications are necessary to ensure the intent and scope of the activities listed is clear. The Ministry has proposed revisions to the list to clarify when a PCA may be of concern. For some PCAs the ministry is proposing to remove the descriptor “use” which could be interpreted broadly (i.e. salt use could be interpreted broadly to include moderate road salt use for safety purposes). For other PCAs, the ministry is proposing to add the term “Bulk” in front of “Storage” to clarify the scale of activity that could pose a risk. Guidance is intended to supplement the regulatory amendments and provide additional clarity. Some PCA’s have been combined.
G. No soil at property:
On occasion, an RSC may have to be filed in relation to a property for which no soil remains at the property (all soil is removed for remediation or construction purposes). In these situations there is no soil to meet the current sampling requirements specified in the regulation and it is not possible to file an RSC for the property without fulfilling the regulatory sampling requirements. In order to recognize these cases, the ministry is proposing, where a phase two ESA is necessary, to allow for RSCs to be filed without confirmation sampling of soil if no soil exists. The proposed amendment recognizes that the objective of ensuring contaminants on, in or under the property meet appropriate standards may be able to be met by sampling soil and/or ground water before or after excavation. The ministry is proposing to require ground water sampling and analysis if a site has no soil and the soil sampling and analysis undertaken previously as part of the phase two ESA is inadequate.
H. Confirmation Sampling:
In the current regulation certain confirmation sampling requirements could be interpreted to be applicable in situations where they were not intended.. For example, where actions have been taken on a phase two property to reduce the concentration of contaminants, the current regulation could be interpreted to require ground water confirmation sampling, where no ground water contamination is present. Proposed amendments clarify that confirmation sampling requirements should only apply when necessary.
Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the Environmental Protection Act
The Ministry is also proposing to amend the “Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the Environmental Protection Act”. When a Qualified Person collects samples for the purpose of O. Reg. 153/04, they must ensure that the laboratory conducting the analysis for the contaminant is doing so in accordance with this protocol or other analytical methods for which the laboratory has received written permission from the Director. The Ministry is proposing to improve the Protocol by providing the Qualified Persons and laboratories, clear guidance in all aspects of the sampling process (including: sampling procedures and containers, holding times, preservation requirements, accepted analytical methods for specific parameters and the reporting results) to ensure the highest-quality data is provided in the decision-making while meeting regulatory requirements. Since March 2007, the ministry’s Laboratory Services Branch has been working closely with a stakeholder group that includes representation from: laboratories performing testing of samples collected for the purpose of O. Reg. 153/04, a Qualified Person (formerly a chemist), two laboratory accreditation bodies and members from the Canadian Council of Laboratories (CCIL), to openly discuss common laboratory and sampling issues among stakeholders as they relate to analytical methods under O. Reg. 153/04. As a result of the ongoing liasions/consultations with stakeholders the following highlights some of the significant improvements:
a. Using methanol as the field preservative for volatile organic compound (VOC) samples collected for analysis and allowing for an alternate preservation method (sodium bisulphate) for the few VOCs that are not well recovered using methanol.
b. Providing alternate procedures (i.e., sampling, preservation, filtration, etc.) where appropriate for some of the problematic compounds (e.g., benzo(a)pyrene, bromomethane, 1,4-dioxane, trihalomethanes, etc.)
c. Creating a separate analytical test group for trihalomethanes (THMs). These compounds are disinfection by-products predominantly formed as a result of chlorination of drinking water sources and are not expected to be found at a typical brownfield.
d. Updated analytical methods referenced and obsolete methods removed.
e. Overall improvements in the format and layout of the document will make it much easier to follow and locate specific information (e.g., analytical test groups are now separated into the appropriate class, “organic parameters” and “inorganic parameters” and are now arranged in alphabetical order).
f. Addition of Tables A and B: summarizing sample handling and storage requirements by parameter group for soil, sediment and ground water samples.
g. Addition of Tables 5-1 to 5-15 summarizing laboratory performance criteria for each parameter group.
h. Definitions of common acronyms as well as a glossary of terms.
i. A list of references.