NEWS AND EVENTS

Learn more about O. Reg. 153/04 and how it could affect you

As you may or may not already be aware, on December 29th, 2009, the Government of Ontario quietly amended O. Reg. 153/04 (the Brownfield Act) with an extensive number of changes. On January 6th, 2010, the MOE subsequently posted information on the amendments to the EBR (EBR# 101-4642 – Proposal for Amending Ontario Regulation 153/04, Brownfields Records of Site Condition), and then on their website on January 8th. If you don’t have it already, you can find the legal document here: http://www.e-laws.gov.on.ca (Amendments to 153/04 - the Record of Site Condition reg. Made Dec 9, filed Dec 29), the EBR posting here: http://www.ebr.gov.on.ca, and the website information here: http://www.ene.gov.on.ca.

While we are still continuing a detailed review of the amendments and supporting documentation, we would like to note the following key changes arising from the O. Reg. 511/09 amendment and related updates:

• The MOE has committed to enhanced integrity for the Record of Site Conditions (RSC) through the following:
• All completed RSCs will be checked by the MOE within 30 business days, with selected RSCs going through an audit process which will involve a desktop technical review. A further subset of these RSCs will be subjected to a detailed Field Review to confirm data posted in the RSC.
• The MOE have completely revised the requirements guiding Phase I and II Environmental Site Assessments (ESAs) in the province of Ontario. These changes include entirely new schedules dictating the application, site investigations, review and evaluation of information, and preparation of an assessment report for each type of ESA. Additional information is also provided in O. Reg. 511/09 indicating the Phase II ESA requirements should the proponent decide to move forward with a modified generic risk assessment.
• Further clarification on the requirements to be a "qualified person" (QP) under the regulation.
• Detailed conflict of interest guidelines for QPs.

• A new streamlined risk assessment process which includes the following:
• The MOE is establishing a new modified generic risk assessment (MGRA) process, termed "Tier 2", which is intended to provide an alternative to meeting the generic site condition standards. This process is intended to provide a more time- and cost-effective option for completion of an RA, under specific defined circumstances. Once the amendments come into force, all modified generic RAs will be submitted electronically, including the Pre-Submission Form (PSF) which is to be submitted at the same time as the RA Report. The MOE intends to review the two documents in parallel, with a regulated review timeline of eight weeks.
• The MGRA will be conducted through the use of an MOE-approved model (ultimately web-based), which allows the proponent to modify only a small select number of assumptions.
• However, this approach will not be fully available until all amendments come into effect in July 2011. In the interim, the MOE will provide access to the approved model (you can get it here: http://www.ene.gov.on.ca/publications/7381e.zip), and guidance on its use (you can get that here: http://www.ene.gov.on.ca/publications/7380e.pdf) and how to submit under the existing interim review process. Until the amendments come into full force in 2011, the regulated review timeline will still be those stipulated under the 2004 Regulation (i.e., typically a 16 week review period).
• A more comprehensive user guide of the approved web-based model will be available once the amendment comes into effect in July 2011.

• Revisions have been made to approximately 120 soil, groundwater, and sediment Site Condition Standards (SCS). While some of these standards have increased, most have become more stringent (some significantly). This will have a significant impact on the number of chemicals which will "screen on" as a concern when conducting Phase II ESA investigations – necessitating some form of risk assessment/management.

• The MOE have also changed the layout of some of the SCS tables, including:
• Two new Standards tables for shallow soil properties (trigger for an "environmentally sensitive site").
• Two new Standards tables for properties within 30 metres of a water body (trigger for an "environmentally sensitive site").
• The Extract and Groundwater Standards table has been removed.