Brownfields Overview Ontario Home Builders Association - Workshop November 26, 2014

Brownfields Overview Ontario Home Builders Association - Workshop November 26, 2014

Overview Ministry of the Environment s Contaminated Sites Program Overview Ontario Brownfields Framework Soil Management 2

Ministry of the Environment Contaminated Sites Programs - Overview Proponent Driven Clean-up [Operations/ESSD] Brownfield Redevelopment Record of Site Condition Framework (RSC) RSC Reviews Risk Assessment Acceptance / Issuance of Certificate of Property Use (CPU) Financial Assurance All Contaminated Sites Compliance Driven clean-up [Operations District Offices] Properties of Environmental Concern Identifying environmental or human health risks before they become issues (e.g.,abandoned chemicals, drums, etc.) Prioritizing these sites Where there is a contaminant present that may cause, or is causing adverse effect or water quality impairment is identified Approvals Remediation Technologies Risk Assessment / Risk Management Area Wide Risk Assessments Financial Liability [Operations] Environmental Clean-up Fund (ECF) Provincial Liability Fund (PLF) Orphan sites 3

Brownfields Ontario Brownfields Framework Lands that are potentially contaminated due to historical, industrial, or commercial practices, and are idle, derelict, vacant, or underutilized. There are mandatory filing provisions found under the Environmental Protection Act. Clean-up of brownfields is often voluntary/proponent-driven. Legislative Framework for Brownfields Brownfield s Statute Law Amendment Act, 2001 removed barriers for brownfields redevelopment; Ontario Regulation 153/04 was enacted in October 2004 with significant amendments made in 2009. The legislation encourages redevelopment by providing property owners with general protection from environmental clean-up orders for historic contamination following clean-up to standards. 4

What is a Record of Site Condition? A RSC is a document that specifies the levels of contaminants existing at a property as of a certain date, and confirms the property meets the soil, ground water and sediment standards applicable for the intended use of the property. The RSC provides a summary of the environmental condition of a property (in, on or under) as certified by a Qualified Person at a point in time. Under XV.1 of the EPA, a RSC must be filed to the Environmental Site Registry (ESR) before the use of a property can change to a more sensitive use. Provides limited protection from environmental clean-up orders. 5

Records of Site Condition Receive limited protection from environmental clean-up Orders based on the information in the RSC (s. 168.7(1) of the Environmental Protection Act); Eligibility for financial incentives for restoring brownfield properties from banks, lenders, insurance; Do not expire and cannot be removed from the Environmental Site Registry; Are mandatory in specific situations. 6

Records of Site Condition Mandatory Filing The Environmental Protection Act contains provisions that prohibit certain changes in property use unless a RSC is filed (s.168.3.1); This prohibition makes it mandatory for a property owner to file a RSC before changing the use of a property to a more sensitive use; property use types are found in Section 1(1) of O.Reg.153/04 This prohibition is known as the Mandatory Filing provision; It is considered applicable law under the Ontario Building Code Act. 7

Property Use Changes Triggering RSC RSC Required Sensitive Property Uses Industrial to Residential Agricultural Commercial Change to Parkland Other Community Sensitive Property Institutional Uses Community use (per s. 10) A change from an industrial, commercial or community use to a more sensitive use requires a RSC. Site condition standards are the same for each property use within a category. Property use changes within a category do not trigger the mandatory filing requirements (*exception community use that is an indoor pool or ice rink etc.). If property is unused and/or vacant, the most recent property use is considered the current use. Use is determined by actual property use and not zoning. 8

Exemptions to Mandatory Filing A property may be exempt if: 1. Property use changes from railway line to a trail for recreational purposes. 2. Property use from a landfill is site approved under Part V of the EPA for any property use. 3. Where current use is a mixed-use building (e.g., commercial/residential building) and expanding a sensitive use (e.g., residential) Note: This does not apply if mixed uses are found across the property and is determined on a case-by- case basis. 9

Qualified Persons Qualified Persons are specifically defined under Section 5. of O.Reg 153/04 Qualified persons are those licenced under the Professional Engineers Act or the Professional Geoscientists Act, 2000, including limited licensees and limited members. 10

Brownfields Remediation Framework Environmental Site Assessment: 1. 2. Phase 1 ESA Phase 2 ESA (required for RSC) Meet the Standards: Site Condition Standards (generic approach) -OR Property Specific Standards (Risk Assessment Approach) Ministry may issue Certificate of Property Use if Risk Management measures are required. 4. RSC is filed to the Environmental Site Registry 3. Submit a RSC: Qualified Person submits RSC for filng to ministry on behalf of owner 11

Environmental Site Assessments ESA Meet Standard RSC Submission File RSC All RSC s have to meet the phase one and two environmental site assessment (ESA) requirements found in the Regulation. ESA requirements were established through consultation with the regulated community using industry best practices and existing CSA standards. Ensures a clear and consistent approach for filing RSC which levels the playing field for property owners and QPs. For RSC purposes, Phase One ESA to determine the likelihood that one or more contaminants have affected land and water, Phase Two ESA to determine the location and concentration of contaminants in land or water. 12

Meet Standards; Generics ESA Meet Standard RSC Submission File RSC Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act, revised version April 15, 2011 Organized by property use and potability of ground water; Application is limited by site specific conditions; Created using the best available science; Tables contain soil, sediment and ground water standards; Generic standards are risk-based derived through a standard model; Background standards (i.e., Table 1) based on Ontario Typical Range numbers. 13

Meet Standards; Property Specific ESA Meet Standard RSC Submission File RSC Risk assessment (RA) is a scientific process used to describe and estimate the likelihood of adverse effects to human health and the environmental resulting from exposure to contaminants Outcome is establishment of property specific standards for use at a RSC property Qualified person required for risk assessment (QP RA ) RA includes: pre-submission form (PSF); human health and ecological risk assessments; and, Report reviewed under set timelines (8-22 weeks) dependent on type of risk assessment. Modified Generic Risk Assessment is meant to provide a streamlined alternative to meeting generic standards and Tier 3 RA process 14

Risk Assessment Process Scientifically examines the potential risk posed to humans, plants, wildlife and the natural environment from exposure to a contaminant through a process where an owner/developer has the ability to: generate property specific standards that are protective of human health and the environment; and MUST assess all major pathways for each identified contaminant. Evaluates the risk and identifies any risk management measures that may be required Risk management measures may include: Property & building restrictions Capping of on-site soils Measures to be taken during redevelopment Other (e.g., pump and treat system) 15

Certificate of Property Use For sites that require RMM s to be implemented in support of the RA. Is the only legal document that can be issued to enforce the RMM s. Issued by the local district office by the appointed director. Amongst the conditions, can include soil management plan and financial assurance. Is a class II instrument for EBR filing purposes, required 30-45 days posting (tier 3 only). Certificate of requirement usually registered on title of the property to provide anyone dealing with the property notification of the order. Must be made available to all tenants or owners of a property. 16

RSC Submission ESA Meet Standard RSC Submission File RSC Key Components of the RSC Form: Property Information: Property ownership (legal name), property location information; Environmental Condition: Summary of property conditions, description of site cleanup or risk management plan, historical use; ESA Information: Reports and other documentation including concentrations of all contaminants measured in samples collected; Qualified Person s Information Certifications: Qualified person s and owner s Supporting Documents: Property location documents (plan of survey) Environmental condition (e.g., table of APECs, conceptual site model) Ownership/authorization documents (e.g., deed/transfer, lawyers letter) 17

RSC Submission Process Submit RSC If Complete, 30 business day period starts Acknowledgement of date RSC Filed RSC has not been completed in accordance with regulation Notice of Review Could include Field work Notice of Defect(s) Acknowledgement of date RSC Filed 18

File RSC to Environmental Site Registry ESA Meet Standard RSC Submission File RSC Publicly accessible, web-based registry Facilitates public access to information Information includes RSC, and if applicable, notices Contains a Notice advising users to consider conducting their own due diligence of the environmental condition of any property https://www.ontario.ca/environment-andenergy/records-site-condition 19

Additional Information RSCs for properties with horizontal severances EPA Subsection 168.2(2) was added to have proponents confirm the concentration of the contaminants in the land and water on, in or under the property does not exceed the standards. This reflects the understanding that the ESAs and RSC must address the entire column, regardless of ownership. Horizontal severances introduce significant challenges in the completion of a RSC and where severances are required, they should occur after the filing of the RSC is completed. 20

Soil Management Municipalities and Conservation Authorities are the main permitting agencies for excess soil receiving sites, through site alteration permits. In response to concerns from Municipalities, Conservation Authorities, the construction industry, environmental consulting firms, and environmental non-governmental organizations, the ministry released the Excess Soil Management: A Guide for Best Management Practices (BMP) in January 2014 to support a consistent management approach throughout the Province. The BMP is intended to help facilitate the beneficial reuse of excess soil so that the use does not have a potential to cause an adverse effect on human health and the environment. 21

Soil Management Soil management options should be evaluated on a site-by-site basis and may include: On-site Direct re-use of the excavated soil at the excavation site; and Treating or processing excavated soil and reusing the soil at the excavation site, in accordance with the terms and conditions of an Environmental Compliance Approval (ECA) where required. Off-site Re-using excess soil at a construction or development site where imported soil is required for purposes such as site alteration, filling in depressions/excavations, or re-grading; Managing excess soil at an approved soil recycling, processing or treatment facility, in accordance with the terms and conditions of the ECA; Re-using excess soil at a commercial site where soil will be re-used for a beneficial purpose; and Transporting excess soil to an approved waste disposal site for use as daily cover (as appropriate) or for final disposal in accordance with the terms and conditions of the ECA. 22

Thank You Questions about soil management? Ministry of the Environment Operations Division Jonathan Fernandes Program Services Unit, Central Region Phone: 416-326-5686 e-mail: jonathan.fernandes@ontario.ca Questions about RSCs? Ministry of the Environment EAASIB Rosemary Ash Brownfields, ECF and FA Unit Phone: 416-314-9058 e-mail: rosemary.ash@ontario.ca 23