There have been recent changes to the regulations governing the clean up of environmentally impaired sites in Ontario which will have significant impact on the redevelopment of impacted sites. Anyone considering the purchase and / or redevelopment of an impacted site (a Brownfield) should become familiar with these changes to fully understand their impact on site clean-up, design, construction and costing.
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The first critical change is with respect to the allowable levels of contaminant in soils and groundwater on a site. The current governing standards were established by Ontario Regulation 153/04 in 2004. Under the new standards, which come into effect on July 1, 2011, pursuant to Ontario Regulation 511/09, the allowable limits for several contaminants is decreasing. This means that the degree of clean-up will be more stringent.
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There are some contaminants which have been given a more tolerable presence, and the allowable limit has actually been increased. These include several of the chlorinated solvents, such as PCE and vinyl chloride, in groundwater and certain soil composition.
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For the first time ever the new regulations have included a standard for the presence of petroleum hydrocarbons in non-potable groundwater. This will reduce the potential need to establish site specific criteria where the subject contaminant in the groundwater of a serviced site is petroleum.
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As always when dealing with a contaminated site, the first step will be to identify the contaminant presence and also the extent of the impact, or plume. From there, the use of the site will greatly impact on the method and degree of clean-up to be used.
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In some circumstances, the goal of the site clean-up is to obtain a Record of Site Condition (RSC) for the site, which is to be registered in the Site Registry maintained by the Ministry of the Environment. An RSC provides a snap shop of the environmental condition of the site as at the date of registration. It also provides the owner of the site with immunity from future orders or directions from the Ministry of the Environment (importantly, it affords no protection against civil liability).
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The new regulations provide for a new category for the clean-up of a site for the purpose of obtaining an RSC. Traditionally, there have been two categories which determine the level a site is to be cleaned up to: (1) generic site conditions and (2) a site specific risk assessment.
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Generic conditions apply the existing criteria for allowable limits as applicable to the generic conditions of the site, determined by the use of the site, whether the water was potable or whether the site was serviced, etc.
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A site specific risk assessment is generally required where there are no generic criteria which are applicable to the site. In such a case, the criteria for allowable limits must be determined for the subject site, which requires a significant accumulation of data and study, all at a considerable cost.
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Under the new regulations, there is now a third category which can be applied to the site for the purpose of obtaining an RSC. Called the modified generic criteria (or “Tier 2″), this category allows a site owner to modify the generic criteria with respect to six (6) factors, including the distance of the site to surface water, the depth of the soils, use of the site, soil texture and type of clean up. There are then eleven (11) further parameters that can be changed with respect to the site, including further breakdown of the soil types, the depth of groundwater or other aquifers.
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Therefore, if a residential development is planned for a site, the use of the modified criteria may be beneficial if the design of the site provides for no ground floor living space and a ventilated garage. The impact of this is that the allowable levels for the presence of contaminant could be increased over what would be required under the generic criteria. This could result in a less onerous clean-up obligation and reduced costs for the development of the site.
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It is important to note that the modified generic category cannot be used where the impacted site relies on groundwater for drinking or is near a waterway or an area of natural or scientific interest or if there is free product present.
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Where a site is not suitable for the generic or modified generic categories, a site specific risk assessment will be required.
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While the modified generic category, where applicable, may result in a cost reduction for site development, there are costs which will increase as a result of the new regulations. The requirements for a Phase I Environmental Site Assessment and a Phase II Environmental Site Assessment have been changed considerable where those site assessments are to be provided to the MOE for the RSC application, regardless of the category of criteria applicable. The amount of required inquiry into the site’s history and even the history of neighbouring properties has significantly increased. For example, for the Phase I Environmental Site Assessment, the historical use of the site must be researched back to the date of first use of the lands, even if that may the time of Crown patent.
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Generally, the owner of a contaminated site can expect that the degree of clean-up required will be increased under the new amendments, however, there are some amendments which may actually assist a site owner in designing a less expensive remediation and development strategy.
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Tags: brownfield, contaminated site, development, environmental law, RSC
