The above graph shows hydrocarbon breakdown by carbon number.
The much-talked about and
anticipated Brownfields Regulation
(153/04) is now progressing
along the road to certainty.
With the closing of the comment
period, the Ontario Ministry of
the Environment (MOE) is proceeding
to issue the final regulation that will
come into effect October 1, 2004.
Changes in the new regulation will
affect both environmental laboratories
and environmental consultants
operating across Ontario.
The new regulation supports harmonisation
of standards governing
site/risk assessments, analytical requirements,
definitions of “Qualified
Persons”, and protocols critical to
their involvement by providing clear
rules regarding:
Qualified Persons (QPs) and
accountabilities;
Contaminant standards by land type;
Specific laboratory methods and
procedures; and
Associated reporting requirements.
The compliance date for the analytical
components of this regulation is
October 1, 2004. The regulation states
that the “date of last sampling” is significant.
If the date of last sampling is
pre October 1, 2004, then the requirements
listed in the previous Guidelines
for Use at Contaminated Sites in
Ontario, 1996 (GUCSO) apply. If,
however, the date of last sampling
occurs beyond October 1, QPs will
have to incorporate the new analytical
standards listed in the document entitled:
“Protocol for Analytical Methods
Used in the Assessment of Properties
under Part XV.1 of the Environmental
Protection Act” (March 9, 2004) to
complete the project.
Qualified Person (QP)
The new Brownfield Regulations
specify that Phase I and Phase II Site
Assessments, activities supporting
Records of Site Condition and Risk
Assessments are conducted and/or
supervised by a Qualified Person (QP).
A QP, as described in the Regulation
certifies in writing that all components
of these activities meet the requirements
of Reg.153, and therefore, is
ultimately accountable for them.
From the perspective of contracting
analytical laboratory services, it is the
responsibility of the Qualified Person to:
Ensure that an accredited laboratory,
as specified in the Regulation, carries
out the analysis of the sample in accordance
with the prescriptive methodology
(including holding times).
Obtain from the laboratory written
confirmation that the laboratory conducted
the analysis for the contaminant
in accordance with MOE approved
protocols1 or other methods for which
the laboratory has received written
permission from the Director, MOE,
LSB.
Ensure that all samples collected as
part of a Phase II environmental site
assessment, risk assessment or for the
purpose of indicating maximum contaminant
concentration for a Record of
Site Condition are handled in accordance
with appropriate protocols.
Review the final interpretation of all
analytical data and recommended
actions associated with a specific site.
Nature of analytical changes
In the spring of 2003, the MOE
issued specific analytical methods for
most of the parameters listed in Tables
1-6 of the Regulation. The analytical
protocols presented were based on
methods used by the MOE, Laboratory
Services Branch (LSB) at that time.
During the same process, the MOE,
LSB solicited input from all private
analytical laboratories on “other methods”
which would produce equivalent
data. Based on this evaluation, the
“other methods” which were deemed
acceptable by the MOE were incorporated
into the existing document and
listed as “alternate methods”.
Accreditation
All laboratories doing environmental
work in Ontario, in addition to
meeting the prescriptive elements,
must meet Section 47 of the
Regulation which specifies that the
analysis of samples must be carried out
by a laboratory which:
Has met the requirements of the
International Standard ISO/IEC
17025; and
has been accredited for specific
parameters by the Standards Council
of Canada.
The Qualified Person is responsible
for the selection of a laboratory that
meets the prescriptive elements and
accreditation requirements of a project(
s). The resources required to maintain
a comprehensive “Scope of
Accreditation” and participate in
CAEAL approved performance testing
(PT), may not be realistic for some laboratory
operations or may require a
significant scope extension.
There are many compounds listed
in the Regulation for which the MOE
did not provide recommended or alternate
methods and/or reporting limits.
It is our understanding that by maintaining
current SCC/CAEAL accreditation
for each parameter not listed in
tables 1 to 6, the accredited analytical
procedures are, by default, accepted
under Reg. 153.
CCME hydrocarbon analysis
For the most part, the analytical
methods allowed by the Regulation are
fairly typical, and based on standard
reference methods.
There are, however, some critical
methods, which were not part of the
former GUCSO guidance document.
Most notable among these is the inclusion
of the prescriptive elements of the
CCME Tier I hydrocarbon method in
soil2, and a requirement to apply the
CCME approach for hydrocarbon
determination to a water matrix.
Historically, petroleum hydrocarbon
analyses have been difficult to
reproduce between laboratories. This
variability is the result of no single
standardized approach to hydrocarbon
analysis, from method selection to
defining the analyte being analysed.
The new CCME petroleum hydrocarbon
method allows for improved
inter-laboratory comparability of
results, provided that the laboratories
adhere to the same analytical protocols,
thus the “prescriptive” nature of
the method.
The impact of this change on
Qualified Persons, is the need to be
able to run old and new methods concurrently,
to deal with project overlaps
around the compliance date (Oct. 1) of
the new regulations. QPs need to
examine each project situation closely
and determine what approach is best
suited for their needs based on the timing
of their sampling events.
“Short cut” methods like “extraction
by sonication” are available but
need to be approved in writing by the
MOE, and listed as an exception. In
order to use methods deemed to be
exceptions, the QP needs to have a
physical copy of the MOE “exception”
letter in order to be in compliance with
the regulatory requirements. There
may be some risk associated with
“exception” methods due to the lack of
comparability of results and the potential
for future challenges to “the record
of site condition”.
Analytical performance
a) Data Quantitation - The new regulations
for Brownfield site remediation,
Reg. 153, also incorporate prescriptive
elements for calculations supporting:
Dioxin toxic equivalency (TEQ);
Method Detection Limits (MDLs);
Precision;
Accuracy;
Measurement of Uncertainty.
For some laboratories these requirements
mean little change to their current
standard operating procedures as
most of these elements are required by
ISO/IEC 17025 standards and as such
are de facto processes in CAEAL/SCC
accredited laboratories.
b) Data Reporting - An immediate outcome
from implementation of the new
Regulation will be changes to reporting
tables for soil, sediment and water.
Although appearing basic, this may
represent a significant change for
some clients who have specified data
reporting formats, and may require
special data exports. This will further
enhance the need to be able to convert
pre-regulation data into formats that
comply with the new regulations, especially
for projects whose start and finish
will straddle the October 1 compliance
date.
The linkage with past data will be
critical with some engineering firms
since it could represent an addition of
project administrative time that might
not have been budgeted in their original
price proposal.
This will place further emphasis on
electronic reporting and data transfer
capabilities of all laboratories. The
new responsibilities of the QP will
introduce the need for “time management”
and strengthen the symbiotic
relationship between lab and consultant.
c) Laboratory QA - In addition to all of
the other methodology and QA
requirements that are clearly stated in
the new Regulation, the new
Regulation also incorporates prescriptive
elements for quality assurance
among laboratories providing data in
support of site assessments and remediations.
Most laboratories with sufficient
technical and instrument
resources should have little difficulty
in compliance. These include such
items as:
Frequency of QC sample analysis;
Acceptable surrogate recoveries;
Required actions in the event of failure
to meet specific QA targets;
Guidelines for calculating and
reporting method detection limits.
Conclusion
The new Regulation provides higher
analytical standards, greater transparency,
and most importantly, defined
accountability throughout the entire
process.
Qualified Persons, at the consulting
level are now fully responsible for the
selection of laboratory support services.
This means a greater need for
knowledge at the QP level, with decisions
being based increasingly on technical
merit and risk mitigation versus
price per test. In addition, laboratories
will be required to provide enhanced
educational resources by QPs in an
effort to assist in their understanding
and implementation of all of the new
regulatory requirements.
Full compliance by all parties after
October 1, 2004 will have some impact
relating to the professional costs associated
with future projects and sites.
Specifically, engineering consultants
and fully accredited analytical laboratories
will need to recover costs
through pricing which will have an
impact on future project budgets. But
the new Regulation, because of its
standardisation, should actually reduce
long-term business risks to the owner
of the contaminated site.
1 Ontario Ministry of the Environment. “Protocol
for Analytical Methods Used in the Assessment
of Properties under Part XV.1 of the
Environmental Protection Act”, March 9, 2004.
2 Canadian Council of Ministers of the
Environment. “Reference Method for the
Canada-Wide Standard for Petroleum
Hydrocarbons in Soil – Tier I Method. 2001.
Dr Andrew Masters is the VP Eastern
Region and
Dr Terry Obal is the
Manager of Scientific Services for
Maxxam Analytics.
Contact e-mail: info@maxxamanalytics.com.
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