navigating the maze: changes to the brownfields regulation · 4/15/2010 · april 15, 2010 dianne...

April 15, 2010 Dianne Saxe

Navigating the Maze: Changes to the Brownfields Regulation

Maxxam Spring Workshop April 15, 2010

Dianne Saxe, Ph.D.

April 15, 2010 Dianne Saxe 2

O.Reg. 511/09 Amends O.Reg. 153/04 Quietly posted Dec 29 09 Mostly in effect July 1, 2011 Lots of detailed changes


Here’s an Overview:

Tougher Standards Better Investigations More Supervision The transition


Tougher Standards New Soil, Ground Water and Sediment Standards for use

under Part XV.1 of the Environmental Protection Act (July 27, 2009) - in effect July 1, 2011

Updated standards for ~120 chemicals (science-based) New parameters

e.g., total boron, hexane, 1,4-dioxane New analytical procedures & protocols Mainly more stringent

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Big Impacts on Petroleum hydrocarbons, e.g.

Table 3 benzene in GW: from 1900 ppb to 44 ppb Table 3: new F1 to F4 in GW

PAHs Table 3 acenaphthene in soil: 1000 to 7.9 napthalene in soil: 40 to 0.6

Dioxin/Furan: 0.001 to 0.000013 Methyl mercury: 6.8 to 0.0084 But some went up


Is it there? Some still below detection limits?

ethylene dibromide some THMs

QP judgment? More changes coming?

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Areas of Natural Significance What areas are included as ANS? Broadly defined:

Includes parks, areas of natural/scientific interest, provincially significant wetlands, significant habitat of a threatened/endangered species

Area that is “…habitat of a species that is classified under section 7 of the Endangered Species Act, 2007 as a threatened or endangered species”

Not tied to existing plans Not clear what counts


Partly offset by Tier 2 RA New modified Tier 2 generic risk assessment More transparency

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Moving soil New Part XII (Soil) MOE has talked about movement of “clean” soils for

years Some argued that only “inert fill” (Table 1) could be

moved This restrictive interpretation was rarely followed….but

will now become law How much more will it cost to dispose of surplus soils

from construction projects?


Better sampling Must sample all soil brought to RSC property Analyse for everything “that may reasonably be expected

to be potentially present” Segregate stockpiled soil by suspected level of

contaminant, and sample/analyse each separately (Sched E, ss. 35-36)

RSC’s require reports documenting and quantifying all movements of soil on and off an RSC property (Sched A, ss. 27-34)


Where can it go? Can freely transport & deposit only soils that meet Table 1 Soils that meet Tables 2 or 3 may only be transported to

already-contaminated properties that were used as gas stations, garages, dry cleaners,

industries, and require an RSC before conversion to a more sensitive

use (s. 32)


Overview



Better Investigations Much tougher requirements for Phase I and II

ESA Replaces existing CSA standards Leaves less to professional judgment

Tougher rules on reliance eg., previous reports by others

Still lots of questions

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Games QPs played... Don’t sample that Don’t check there again Don’t check that again Region, what region? Compositing volatiles (now)

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Time and Money It costs how much? Conceptual site model Depth to groundwater:

4 quarterly samples, or add a metre?

Is it clean yet? 4 consecutive quarters of clean data

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We’ll know more soon To be issued soon:

guidance documents forms etc.

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Good News? You don’t have to taste it

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Overview



More supervision Since 1996, MOE leaned heavily on QPs

Document status of contaminated sites Paid by property owner Focus MOE resources on risk assessments

Since 2005, QP’s = professional engineers, geoscientists

Self-governing, right?


How did it work? Professional bodies (e.g., PEO) failed to control

conflicts of interest and shoddy work The MOE wants better quality RSCs

QPs certified questionable RSCs RSC that contains false/misleading information or certification

provides no protection to property owner Good consultants undercut by sloppy competitors

Some clients suffered real harm 511: back to more MOE scrutiny


Checking RSCs A quality control/audit process for RSC Desktop (or more detailed) review by MOE -- defective

RSCs will be rejected Acceptable RSCs acknowledged by MOE (more

reliable?) Adds 6 weeks to process of obtaining RSC

30 business days


Conflict of Interest Conflict of interest rules for QPs who sign each

RSC Where QP or employer holds interest in a RSC or RA

property, QP cannot conduct/supervise Phase I or II ESA Complete RSC certification for that property Prepare/supervise a RA

Why did MOE have to do that?

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Overview



The transition Which standards do you prefer? Hurry up or wait?

How do the new numbers affect old deals? ongoing cleanups?

Some stakeholders already using new standards

Standards branch using new numbers in RA


Buying more time Use the old standards an extra 18 months Must file election this year Get cleanup underway Must use new style ESA I and II

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Old RSCs What will the “old RSCs” be worth? Same statutory immunity

such as it is Same reopeners

but will they use the new science? Will banks/lenders demand RSCs be re-done to the new

standards? Can you sell with an old RSC?


Conclusions



Questions? Comments?

Saxe Law Office248 Russell Hill Road

Toronto, Ontario M4V 2T2

Tel: 416-962-5882

Fax: 416-962-8817

Email: [email protected]

www.envirolaw.com

navigating the maze: changes to the brownfields regulation · 4/15/2010 · april 15, 2010 dianne...

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