Developing Brownfields

Recently, the Ontario Ministry of the Environment issued amendments to regulations relating to brownfield redevelopment. Brownfields are common across Canada and there has been a push to rejig various provincial regulatory frameworks to encourage redevelopment and bring these properties back to life. At the same time, there are attempts to improve the science behind assessing for acceptable contaminant levels on these sites.

The latest amendments to Ontario’s brownfield regulatory framework (O. Reg 511/09) implement many of the loose ends from prior amendments to the Ontario Environmental Protection Act from 2007 and have been long awaited. Some of the amendments came into force on December 29, 2009, but most will technically not come into force until July 1, 2011. In practice, however, the amendments are being implemented already since developers are recognizing that to work to a less stringent standard might pose problems for potential ongoing liability.

Following are 10 important changes to the Ontario brownfield regulations.

1. General. The last standards to which most redevelopment was benchmarked were legislated in 2004. Approximately 120 contaminants are now updated. Of particular note are much more stringent standards for volatile organic compounds, and some hydrocarbon related contaminants.

2. Petroleum Hydrocarbon Standards. These are generally more stringent than the 2004 standards. The Ministry of Environment did attempt to balance the competing interests of development and conservatism.

3. Definition for Phase I Study Area. The regulation now includes a definition for a Phase I Study Area for a Phase 1 Environmental Site Assessment (ESA). The definition includes not only the Phase I property, but also any other property located within 250 metres of its boundary, as well as any property that the Qualified Person (QP)/consultant determines should be included in the study area.

4. Definition for Contaminant of Concern. This definition includes a contaminant in excess of applicable site condition standards, or a contaminant for which no standard is prescribed and which is associated with potentially contaminating activity. “Potentially contaminating activity” is further defined to include the typical list of industrial activities, such as chemical manufacturing, processing, storage, handling and disposal. It also includes electricity generation and the importation of fill material of unknown quality.

5. Qualified Persons (QPs) and Conflicts of Interest. The regulation adds various conflict of interest sections associated with Qualified Persons. These new sections are designed to restrict those who hold direct or indirect interests in a property from also conducting the Phase I or II Environmental Site Assessments for that property.

6. Records of Site Condition (RSCs). The procedure for filing RSCs has been amended to incorporate the concept of submission for filing. The change is to enable the Ministry to deal with obvious defects in the submission and to allow for time for notices or acknowledgements. There is a 30-day period in which the Ministry must respond to a submission for filing a Record of Site Condition.

7. Stale Date for Information in Support of an Environmental Site Assessment (ESA). The regulation includes a stale date for information that may be used in support of a Phase I or Phase II ESA, being 18 months before the submission of a Record of Site Assessment or the commencement of a Phase II ESA or Risk Assessment. The Qualified Person must be satisfied that there is no new or materially changed area of potential environmental concern at the property.

8. Conceptual Site Models (CSMs). The regulation requires the Qualified Person to create a conceptual model consisting of figures, narrative descriptions and assessments showing existing buildings, water bodies, adjacent properties, areas where potentially contaminating activity has occurred and areas of environmental concern.

Where a contaminant is present in excess of the applicable standards, the model must include a description of the distribution and migration of that contamination, as well as a diagram identifying the contaminant transport pathways and receptors. The modelling concept is not new, but the requirement to include it as part of a Phase I or Phase II ESA is new.

9. Imported Soil. The regulation adds a section allowing the import of soil that did not originate on the subject property, provided that sampling verifies that the imported soil meets the Record of Site Condition standards or risk assessment standards. Imported fill may only be used to backfill an excavation or for final grading.

Previously, soil that was in excess of provincial background contaminant levels was considered waste under the General Waste Management regulation under the Environmental Protection Act and could not be used on another site. The change has tremendous implications in the province for moving soil that would otherwise have been destined directly for soil recycling or landfill.

10. Modified Generic Risk Assessment Model. The major amendments to the risk assessment sections provide for a Modified Generic Risk Assessment. The model allows a site specific approach without a full risk assessment. The model permits the Qualified Practitioner to adjust assumptions underlying the generic site condition standards, including soil type, fraction of organic carbon, distance to closest surface water body, minimum depth to water table and hydraulic conductivity. The model allows for risk management measures to eliminate exposure pathways.

At present, only an interim model is available, but it still provides a fairly robust system for data analysis.

Tamara Faber is a Partner practising environmental law at Miller Thomson LLP the Toronto. Tel: 416.595.8520, e-mail tfarber@millerthomson.com.