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

ERO number
019-0987
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Notice stage
Decision Updated
Decision posted
Comment period
December 9, 2019 - January 13, 2020 (35 days) Closed
Last updated

Update Announcement

We updated the notice on March 22, 2021 to upload the French version. We have also included the link to the amending regulation (O. Reg. 214/21) in the ‘Related links’ section of the notice.

March 22, 2021

This consultation was open from:
December 9, 2019
to January 13, 2020

Decision summary

Ontario has finalized changes to O. Reg. 153/04 (Records of Site Condition) to allow qualified engineers and geoscientists to exercise professional judgment, in limited circumstances, to determine the need for ground water sampling prior to redeveloping on former commercial or industrial lands, also known as brownfields.

Decision details

As committed to in the Made-in-Ontario Environment Plan, our government is taking steps to remove unnecessary barriers to put former commercial or industrial lands that are now vacant, back to good use, while maintaining strong environmental protection and oversight.

Ontario has finalized amendments to Ontario Regulation 153/04 under the Environmental Protection Act (RSC Regulation) that provide flexibility for a qualified person, a licensed professional engineer or professional geoscientist, to exercise professional judgment regarding the need for ground water testing at a site when completing the phase two environmental site assessment (ESA) that is required to file a record of site condition. A record of site condition must be filed under Part XV.1 of the EPA when the use of a site will change from a less sensitive use (e.g. industrial) to a more sensitive use (e.g. residential). This exemption is only available where insufficient soil samples are available for testing during the phase two environmental site assessment, and in specific low-risk circumstances.

O. Reg. 214/21 that amends the RSC Regulation was filed on March 19, 2021 and comes into effect on filing.

Ontario is committed to the protection of our air, land and water, and the health of people and our communities remains our top priority. To ensure our ground water sources stay protected, along with other ministry conditions, the existing ground water testing will still be required on sites that:

  • use ground water as drinking water or for agricultural purposes;
  • are located in a designated wellhead protection area; and
  • are within 30 meters of a surface water body.

To qualify for the exemption, all the soil down to the bedrock surface must have been removed from the site before soil testing could be completed. In this situation, subsection 6(3) of Schedule E to the RSC Regulation had previously required, without any exceptions, the analysis and sampling of ground water as part of the site investigation of a phase two ESA.

To provide a qualified person with greater flexibility to exercise their professional judgement to determine whether ground water sampling should be carried out as part of the phase two ESA, section 6 of Schedule E to the RSC Regulation has been revoked and substituted with a new section 6.

The new subsection 6(1) continues to require the qualified person as part of the phase two ESA to investigate, sample and analyze ground water if any of the following circumstances exist:

  1. The property is 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).
  2. The qualified person believes it is necessary to sample ground water to make certifications, comply with requirements of Part VIII of the regulation and achieve general and specific objectives of a phase two ESA.
  3. There is insufficient soil left at the site to fully delineate the contamination and meet key requirements and objectives outlined in the regulation.

The new subsection 6 (2) of Schedule E sets out the circumstances when ground water sampling is not required as part of a phase two ESA, where there is insufficient soil left at the site to fully delineate the contamination (no soil sites):

  1. The phase two property is not within 30 metres of a waterbody;
  2. The phase two property is, and all other properties located within 250 metres of the property are supplied by a municipal drinking water system as defined in the Safe Drinking Water Act, 2002;
  3. The phase two property is not located in an area designated in a municipal official plan as a well-head protection area or other designation identified by the municipality for the protection of ground water;
  4. The phase two property or other properties within the phase one study area do not have a well that is used or intended to be used as a source of water for human consumption or agriculture;
  5. A risk assessment is not being prepared for the phase two property.
  6. As part of the phase one environmental site assessment (ESA) that the qualified person would need to prepare or supervise, the qualified person has confirmed there are no potentially contaminating activities or other sources of contaminants in the phase one study area that could result in an area of potential environmental concern at the phase two property due to contamination of ground water.
  7. The following must be determined or confirmed by the qualified person in the phase two ESA:
    1. Sufficient investigation, sampling and analysis of the soil was undertaken to identify all contaminants of concern.
    2. The qualified person, as part of the investigation and having regard to section 21 of Schedule E, used all reasonable efforts to determine the maximum concentration of contaminants in the soil on, in or under the phase two property;
    3. If a contaminant of potential concern identified during the phase one ESA included a volatile organic compound or petroleum hydrocarbons F1, the investigation included the sampling and analysis of the soil for the contaminant in accordance with any requirements of Schedule E and the investigation found no exceedance of any of the applicable site condition standard for that contaminant; and,
    4. The soil sampled and analyzed that exceeded an applicable site condition standard was not in contact with the water table.
  8. During the site investigation and any excavation of the soil at the phase two property, no evidence of free product was observed in the soil.
  9. The qualified person is satisfied that contaminants have not migrated to the ground water on, in or under the phase two property, based on the phase one ESA, the phase one conceptual site model (CSM), the investigation, sampling and analysis of soil done per the phase two ESA, the phase two CSM and any other supporting information and rationale documented by the qualified person in the phase two ESA report.
  10. The qualified person is satisfied that it is not necessary to undertake the investigation, sampling and analysis of ground water as part of the phase two ESA for the qualified person to conclude that the applicable site condition standards are met on, in or under the phase two property and to make the required certifications to submit for filing an RSC.

Where a qualified person relies on the exemption for testing ground water as part of a phase two ESA, the amendments go on to require the qualified person to include in the phase two CSM a narrative description of the rationale for concluding that the investigation, sampling and analysis of ground water are unnecessary in order to conclude that the applicable site condition standards are met on, in or under the phase two property and to make the required certifications to submit for filing an RSC.

The narrative must include a discussion on how a range of factors were considered when the qualified person exercised professional judgement to not test ground water and rely on the exemption, including but not limited to: the types of potentially contaminating activities and sources of contaminants; the soil type and nature of the soil (e.g. porosity, grain size); nature of the bedrock and depth to the water table; the pH of the soil; and, leachate testing results (if applicable).

Additionally, where this exemption from ground water testing is relied on when filing an RSC, the amendments require that the Registry include a note to notify users of the Registry that there was reliance on this exemption, and that despite this record being filed based on a Phase two ESA, no confirmatory sampling of the soil, sediment, and ground water has been undertaken to support the certifications made by the qualified person.

Guidance is being developed to help qualified persons understand their obligations and professional considerations.

Other consequential amendments have been made to O. Reg. 153/04 to ensure alignment with these amendments.

Comments received

Through the registry

16

By email

7

By mail

0
View comments submitted through the registry

Effects of consultation

The ministry received a total of 23 submissions from the public and individuals (8), municipalities and conservation authorities (9), industry associations (4), and consultants and lawyers (2).

Comments that were received were mixed including: unsupportive, neutral with conditions or conditionally supportive. Comments expressed the need for sampling ground water at sites that are known or suspected to have contamination, and that existing provisions in the Regulation were appropriate and adequate. Concerns were raised about potential impacts to drinking water and ground water, as well as the reliability and consistency of qualified person judgments. While some support was received for quality persons exercising greater professional judgment, it was conditional on the enhanced accountability, consistency and training of qualified persons to meet professional standards.

The amendment was revised to respond to some of the comments.

To respond to municipalities who are dependent on ground water for municipal drinking water and raised concerns about its protection, a restriction was added that this use of professional judgment cannot be applied at sites in well-head protection areas as defined in the Clean Water Act, 2006.

The Ministry also responded to comments about qualified person consistency by stating in the regulation some of the key factors that must be considered as part of using professional judgment and before exercising this flexibility. Guidance material will be released to assist with understanding and consistent application of this amendment.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Environmental Policy Branch
Address

40 St Clair Avenue West
10th Floor
Toronto, ON
M4V 1M2
Canada

Connect with us

Contact

Sanjay Coelho

Phone number
Office
Ministry of the Environment, Conservation and Parks - Environmental Policy Branch
Address

40 St Clair Avenue West
Floor 10
Toronto, ON
M4V1M2
Canada

Office phone number

Sign up for notifications

We will send you email notifications with any updates related to this consultation. You can change your notification preferences anytime by visiting settings in your profile page.

Follow this notice

Original proposal

ERO number
019-0987
Notice type
Regulation
Act
Environmental Protection Act, R.S.O. 1990
Posted by
Ministry of the Environment, Conservation and Parks
Proposal posted

Comment period

December 9, 2019 - January 13, 2020 (35 days)

Proposal details

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.

  1. 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.

Supporting materials

View materials in person

Important notice: Due to the ongoing COVID-19 pandemic, viewing supporting materials in person is not available at this time.

Please reach out to the Contact listed in this notice to see if alternate arrangements can be made.

Environmental Policy Branch
Address

40 St Clair Avenue West
10th Floor
Toronto, ON
M4V 1M2
Canada

Comment

Commenting is now closed.

This consultation was open from December 9, 2019
to January 13, 2020

Connect with us

Contact

Sanjay Coelho

Phone number
Office
Ministry of the Environment, Conservation and Parks - Environmental Policy Branch
Address

40 St Clair Avenue West
Floor 10
Toronto, ON
M4V1M2
Canada

Office phone number