Amendment to the Record of Site Condition (Brownfields) Regulation related to the Requirement to Sample Ground Water

Ontario is proposing changes to O. Reg. 153/04 that would provide flexibility for a qualified person (a licensed professional engineer or geoscientist) to exercise professional judgement regarding the need for ground water testing where there is no soil on, in or under the property and soil sampling completed does not meet the requirements and objectives of a phase two environmental site assessment with respect to soil, with some limitations and requirements.

The proposed amendment would reduce barriers to redevelopment of brownfields, putting vacant, prime land back to good use.

We are delivering on our Made-in-Ontario Environment Plan commitment to increase redevelopment and revitalization of brownfields.

This amendment would provide flexibility in certain situations for sites requiring a phase two environmental site assessment (phase two ESA) to be completed in order to file a record of site condition and all the soil down to the bedrock surface has been removed from the site. In this situation, the current regulation, subsection 6(3) of Schedule E, requires the analysis and sampling of ground water as part of the site investigation of a phase two ESA if the previously completed investigations do not meet the requirements of a Phase two ESA with respect to soil.

It is proposed that a new subsection be added to section 6 of Schedule E, indicating that despite the requirements to sample and analyze ground water set out in the regulation, the qualified person would not be required to sample and analyze ground water if specified conditions are met based on limited results of analyses and professional opinion. The proposed conditions are identified below.

1. With regards to the Record of Site Condition (RSC) property and applicable site condition standards:
   1. The property is, and the properties in the phase one study area are, serviced by a municipal drinking water system;
   2. The property is not within 30 metres of a waterbody;
   3. The property is not an enhanced investigation property as described in section 32(1)b of the O. Reg. 153/04 (where the property is or has been used for an industrial use, a garage, a bulk liquid dispending facility, including a gasoline outlet, or operation of dry-cleaning equipment);
   4. A risk assessment is not being prepared for the property
2. The following must be determined or confirmed by the qualified person, and associated evidence documented in the phase two conceptual site model, which is a component of the phase two environmental site assessment (ESA):
   1. The qualified person has confirmed and documented evidence from the Phase one ESA that the site restrictions in A. do not apply to the RSC property;
   2. The qualified person has confirmed and documented evidence from the Phase one ESA that the site does not have any areas of potential environmental concern (APECs) resulting from off-site potentially contaminating activities (PCAs);
   3. The qualified person has documented evidence from the Phase two ESA and documented rationales:
      1. Confirming that soil sampling and analyses were undertaken;
      2. Justifying that soil sampling and analyses were sufficient to identify all site-related contaminants of concern (COCs) and to determine maximum concentrations for each COC present in the soil; and
      3. Confirmed through soil sampling and analyses that the concentrations of volatile organic compounds in soil, if present, met applicable site condition standards;
   4. The qualified person has documented evidence and provided a written rationale based on the Phase one ESA, Phase two ESA (including soil sampling and analyses) and based on their professional judgement:
      1. Concluding that contaminants have not migrated from the soil (prior to excavation) into ground water at concentrations in exceedance of the applicable site condition standard; and
      2. Concluding that there would not be an impact to ground water such that it would adversely affect the intended property use of the RSC property;

Note that it is expected that a qualified person would have considered factors that may influence whether a contaminant may have migrated to ground water, such as soil type, the volume of contaminated soil that was removed, the pH of the soil, sorption coefficient of the contaminant, whether soil removal went below the water table, the separation distance between impacted soil and the water table, the types of potentially contaminating activities, whether the site is an environmentally sensitive site and whether the site had shallow soil.

3. The qualified person would be required to complete the following certifications (note that some of these certifications are already in a record of site condition and are re-iterated here to emphasize the relationship to this proposal):
   1. In their professional opinion, the above conditions in A. and B. have been met;
   2. In their professional opinion, based on the phase one ESA, the Phase two ESA, including the conceptual site model and the sampling and analyses of soil, it is not necessary to conduct ground water sampling for the RSC property because it is reasonable to conclude that contaminants from soil have not, including in the past, migrated to ground water resulting in concentrations in exceedance of the applicable site condition standard or otherwise adversely affect the intended property use of the RSC property; and
   3. The evidence, rationale, conclusions and certifications are based on generally accepted principles and practices as recognized by members of the environmental engineering or science profession or discipline.

MECP is interested in comments on this regulatory proposal as well as program and implementation considerations that may be associated with this regulatory proposal (e.g. need for guidance).

Other Information

Brownfield properties are vacant or underutilized places where past industrial or commercial activities may have left contamination (chemical pollution) behind, including factories, gas stations, and waterfront properties (e.g., port lands). Brownfields can pose health and safety risks and can degrade communities where they are located if they are left underutilized. However, if remediated and redeveloped appropriately, brownfields can meet health, safety and environmental standards for new intended uses.

Under Part XV.1 of the EPA, a Record of Site Condition must be filed on the Ministry’s Environmental Site Registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland. The RSC supports municipal land use planning and building permit decisions to help ensure that any contaminants at the site will not adversely affect a new property use.

This proposal will be posted for a 35-day public review and comment period starting December 9, 2019. Comments are to be received by Monday January 13, 2020.

All comments received during the comment period are being considered as part of the decision-making process by the Ministry.

MECP will meet with key stakeholder organizations to discuss the proposal as needed and will also post the proposal on the regulatory registry.

Please Note: All comments and submissions received will become part of the public record.

Regulatory Impact Statement

The proposed amendment to O. Reg. 153/04 would positively impact property owners or businesses involved in the redevelopment of brownfield properties that are submitting a Record of Site Condition for filing on the Ministry’s Environmental Site Registry.

The proposed amendment provides some flexibility for appropriate sites based on an acceptable rationale and certification. This may lower costs associated with unnecessary sampling and remove delays in the Record of Site Condition and redevelopment process.

There would be a marginal administrative cost for qualified persons to become familiar with the regulatory amendment to gain clarity on how the ministry expects them to be applied. The Ministry would provide outreach that aligns with the filing of the regulatory amendments to efficiently communicate Ministry expectations and to minimize any costs to qualified persons.