Ontario is moving ahead with controversial reforms to the law regarding the cleanup of contaminated sites. Extensive amendments to the Records of Site Condition Regulation (O. Reg. 153/04), long in the making, were finalized on December 29, 2009—although most of the key changes will not come into force until mid-2011. These amendments, while providing some added clarity and flexibility to the process for obtaining a Record of Site Condition (RSC—essentially a certificate that a property is clean, and which provides some protection against Ministry of the Environment orders), have raised concerns that cleanup projects will become more technically difficult and expensive.
The centrepiece of the amendments is the introduction of updated soil and groundwater standards, which are used when undergoing the RSC process to determine whether a property is “clean enough” for its intended use. The Ministry of the Environment has stated that the previous standards (issued in 2004) were based on science available prior to 1996 and therefore required revision. The new standards for many chemicals will be much lower (that is, more stringent) than before. A few examples: the standard for acenaphthylene (a coal tar constituent) in non-potable groundwater drops from 2,000 to 1.8 parts per billion (ppb); nickel drops from 1,600 to 490 ppb, and dichlorobenzene 1,4 drops from 7,600 to 25. In addition, new standards have been introduced for several chemicals which previously had no standard at all. A prominent example of this is the new standard for petroleum hydrocarbons in non-potable groundwater. The Ministry has said that these new standards reflect advances in science, and will now strengthen protection of human health and the environment, and increase confidence in RSCs. However, with some standards listed at just above laboratory detection limits, there is significant stakeholder skepticism over how many sites will be able to meet the new standards, and at what cost.
The second major amendment is the introduction of specific and mandatory minimum requirements for conducting and supervising Phase I and Phase II environmental site assessments, which will replace the Canadian Standards Association standards that are currently incorporated by reference into the RSC Regulation. The amended Regulation sets out in exhaustive detail just what a Phase I and Phase II must entail (for example, the questions that must be asked and the documents to be reviewed). In this respect, the Ministry has stated that the amendments to Phase I and Phase II requirements provide a more predictable and transparent process that clarifies what environmental site assessment work must be done to submit an RSC. In addition, there is a new provision prohibiting consultants from conducting a Phase I or Phase II if they are in a conflict of interest (that is, if they or their employer hold a direct or indirect interest in the property being assessed). The consensus among stakeholders seems to be that these new requirements will significantly increase the cost of Phase I and II assessments.
The third major amendment is the introduction of the concept of a Modified Generic Risk Assessment (MGRA), sometimes also referred to as a Tier 2 Risk Assessment, which is being offered as an alternative to those property owners whose properties will not meet the generic standards, but who also do not wish to undergo the traditional risk assessment process which can be lengthy and complex. It’s the Ministry’s intention that this new process will provide a timelier and more cost-effective option for owners involved in remediation activities. The MGRA will be prepared using a web-based Ministry-approved model, allowing for controlled modification of the Ministry’s generic site condition standards to match site specific conditions for use in a RSC. The MGRA would then be submitted electronically for Ministry review.
The regulation of contaminated land engages two competing policy goals. On the one hand, there is a compelling public interest in seeing the redevelopment of abandoned or underused brownfields into economically productive sites. On the other hand, it’s imperative that a redeveloped site does not pose an undue risk to its occupants, its neighbours, or the environment. It’s probably inevitable that any law reform effort in this area will be second-guessed. Ontario’s recent amendments have raised concerns that they have not got the balance quite right, and that the result of the tighter standards will be a stifling of brownfield development in the province.
Ian Richler and Lori Rogers are lawyers in the environmental law group at Gowling Lafleur Henderson LLP in Toronto.