BROWNFIELDS UPDATE

THE AMENDMENTS TO O. REG. 153

John Willms

Specialist in Environmental Law

Certified by the Law Society of Upper Canada

Willms & Shier Environmental Lawyers LLP

www.willmsshier.com

ONEIA

Brownfields/Remediation Business Forum

March 3, 2011

Outline

• Soil, ground water and sediment standards

• Standards for Phase I and II ESAs

• Soil Movement

• Regulatory and Civil Liability

• Transition

Standards – New Tables

• Old Table 6 is gone and is replaced by• Tables 6 and 7 – for shallow soil

sites• Tables 8 and 9 – for sites near

water bodies

• Table 1 represents background conditions and is still used for sites that are areas of natural significance

Standards Added and Revised

• New standards for four VOCs and uranium

• “Science based” on the most sensitive combination of pathway and receptor – based on 10-6 for human health

• A few e.g. Vinyl chloride are less stringent

• For the contaminants that we most frequently encounter, between 1 to 3 orders more stringent

Changed Standards

• BTEX, benzene – significantly more stringent

• PHCs – numerical standards in all tables

• For PHC, no evidence of free product

• For potable ground water “no indication of objectionable petroleum hydrocarbon odour and taste”

Risk Assessment

• New and more detailed rules for traditional RA

• New type of RA added in attempt to streamline review and ameliorate concerns

• Modified generic uses “approved model”, MOE template and risk management measures approved and published by MOE

• Practitioner concern – this does not provide much relief without risk management

Role of QP

• Less independence, more work

• Detailed rules for Phase I and II ESAs embedded in Reg. 153

• As of July 1 ?? there will be a new MOE “approval” process – acknowledge for filing

Phase I ESA Data

• All reasonable enquiries – all sources of “reasonably accessible information”

• Extensive lists of sources of “records”

• Includes access to information legislation (my take - municipal, provincial)

Conceptual Site Model

• Information about Phase I Study Area

• Property boundaries 250 m from Phase I property boundary or beyond if QP determines

• Potentially contaminating uses, water bodies, underground services

Source: Ministry of Ontario, Brownfields Redevelopment Amendments to O. Reg. 153/04, Brownfields Stakeholder Group Meeting, May 23, 2010

Potentially Contaminating Activities

• Assess all within or beyond 250 m

• List of 70 activities encompasses most of the usual suspects

• # 71 - Fill of unknown quality

Enhanced Phase I ESA

• Property had garage, dry cleaning or “bulk liquid dispensing”

• Permits and records, MSDS, inventories of chemicals, tanks, storage areas

• Waste management records

• Environmental audit reports

Phase II ESAs – Delineation

• How to draw the plume of contamination

• Keep sampling until areas of highest concentration found

• Edges of plume – vertical and horizontal extent to the next sampling location that is < standard – no interpolation

Phase II ESAs – Averaging

• Compliance to be determined at each sampling point

• Average where 2 or more samples at same location and depth (within 2 m radius)

• Composite samples not allowed for VOC analysis

Phase II ESAs Confirmatory Sampling

• Two quarterly consecutive ground water samples needed where remediation done

• Four if remediation in situ

Phase II ESAs - Contaminants

• CSM – Phase I and incorporate the results of the Phase II assessment

• Soil vapour survey for volatile contaminants including VOCs

• Measure and report on “free product” or “free flowing product”

Phase II ESAs - Hydrogeology

• Groundwater levels plus temporal variations – monitor or estimate

• Measure levels at every sampling event

• Flow direction using 3 or more monitoring wells

• Horizontal gradients

“Best By” Dates

• “Date of last work” researching for Phase I and II

• < 18 months before RSC

Movement and Treatment of Soil

– Reporting Quantities

• New MOE interest and emphasis on tracking

• QP must report on quantities and quality of soil

• Removed or imported

• Including characteristics (Phase I) of the source property

• Remediated on and off-site

Rules for Importation

• Rules apply to RSC properties ONLY

• General Rule - Table 1 soils fine for importation to any site including sites with RSC

∀ ∴ practice – import soil first, then do Phase II

Importing Clean Soil

• Know your source of backfill and bedding - no exemption for material from aggregate operation that has naturally occurring exceedance

• Many aggregate operations produce materials that exceed the new standards, usually metals, the exact contaminant depends on where in Ontario

Regulatory and Civil Liability

• Civil – no civil liability protection except for municipalities

• Municipalities – no liability for reliance on RSC by reason of inaccuracy in RSC

• Regulatory – RSC provides limited protection “reopeners” but not in the event of off-site migration

Transition

• Site Condition Standards – July 1, 2011

• New rules for Phase I and II ESAs – July 1, 2011 or earlier if and when RSC approval procedures proclaimed

• Ongoing risk assessment or remediation? Submit notice before January 1, 2011 and stay under the old rules up to January 1, 2013

Contact Information

John Willms

Phone: (416) 862-4821

jwillms@willmsshier.com

Willms & Shier Environmental Lawyers LLP

www.willmsshier.com