Environmental Science & Engineering - www.esemag.com - November 2004
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New brownfields law effective October 1 but mandatory clean-up postponed
By Barry Spiegel,Willms & Shier Environmental Lawyers LLP
New voluntary clean-up regulations will limit liability
of owners, lenders and purchasers to MOE
orders. However, there is no protection from civil
lawsuits, or for off-site contamination.
The new regime replaces the MOE Guideline for Use
at Contaminated Sites in Ontario with a new Record of
Site Condition Regulation, a public Environmental Site
Registry, and designation of regulated professionals as
“qualified persons” permitted to supervise and certify
clean-ups.
The government has postponed proclamation of the
mandatory change of land use clean-up provisions. When
the Environmental Protection Act’s (EPA) s. 168.3.1 is proclaimed
in future, most land use changes to more sensitive
uses (e.g. from industrial to residential) will require clean-up
and filing of a Record of Site Condition (RSC). Until the
government proclaims this section, RSCs and clean-ups will
continue to be 'voluntary' - i.e. required by purchasers,
lenders, insurers or municipalities, but not by provincial law.
Brownfields Amendments were scheduled to take effect
on October 1, 2004, amending the Environmental
Protection Act, Ontario Water Resources Act, Education
Act and the Municipal Act, 2001. The Record of Site
Condition Regulation (O. Reg. 153/04) under the EPA will
also take effect on that date.
The new legal regime includes:
- Property tax incentives
- Liability protection for owners
- Regulated standards for clean-up and redevelopment of
contaminated sites
- Definition of classes of “qualified persons” (QP) permitted
to conduct and supervise clean-ups and certify Records
of Site Condition (RSC)
- Mandatory QP insurance requirements
- An Environmental Site Registry.
Highlights
Details are set out in the Record of Site Condition
Regulation - O. Reg. 153/04, including definitions of
Environmental Site Assessment (ESA) standards, transitional
provisions, mandatory contents of RSCs, and risk
assessment reports.
Clean-up standards are published in “Soil, Groundwater
and Sediment Standards for Use under Part XV.1 of the
Environmental Protection Act” (March 9, 2004). These
standards, incorporated by the regulation, will replace the
Tables in the Guideline.
Only petroleum hydrocarbon standards have been
changed from the Guideline. Now fractional analysis is
required - more precise, more expensive. Ontario labs are
gearing up to provide this analysis, which is the CCME
standard used in most other provinces.
“Qualified Persons” include three levels of QP who can
certify RSCs, and a fourth category of QP who can conduct
and supervise risk assessments. (MOE is developing new
QP criteria that will replace these in 2006.)
Individuals registered under the governing statutes as
professional engineers, professional geoscientists, certified
engineering technicians and technologists and architectural
technologists, professional agrologists, and chartered
chemists will be able to conduct and certify Phase I
ESAs and RSCs. Only engineers, geoscientists, agrologists,
and chemists can conduct and certify Phase II ESAs
and RSCs.
Only engineers and geoscientists can certify RSCs based
on risk assessment. Prescribed educational and experience
requirements apply to professionals conducting or supervising
risk assessments.
MOE has issued Technical Updates setting out transitional
requirements and deadlines for grandfathered submissions
under the Guideline.
As noted above, the government has not proclaimed the
provisions that will require clean-up and filing of an RSC
for changes to a more sensitive land use.
Contact Willms & Shier Environmental Lawyers LLP,
Direct phone: 416-862-4845.
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