oneia- john willms presentation
DESCRIPTION
TRANSCRIPT
BROWNFIELDS UPDATE
THE AMENDMENTS TO O. REG. 153
John Willms
Specialist in Environmental Law
Certified by the Law Society of Upper Canada
Willms & Shier Environmental Lawyers LLP
www.willmsshier.com
ONEIA
Brownfields/Remediation Business Forum
March 3, 2011
Outline
• Soil, ground water and sediment standards
• Standards for Phase I and II ESAs
• Soil Movement
• Regulatory and Civil Liability
• Transition
Standards – New Tables
• Old Table 6 is gone and is replaced by• Tables 6 and 7 – for shallow soil
sites• Tables 8 and 9 – for sites near
water bodies
• Table 1 represents background conditions and is still used for sites that are areas of natural significance
Standards Added and Revised
• New standards for four VOCs and uranium
• “Science based” on the most sensitive combination of pathway and receptor – based on 10-6 for human health
• A few e.g. Vinyl chloride are less stringent
• For the contaminants that we most frequently encounter, between 1 to 3 orders more stringent
Changed Standards
• BTEX, benzene – significantly more stringent
• PHCs – numerical standards in all tables
• For PHC, no evidence of free product
• For potable ground water “no indication of objectionable petroleum hydrocarbon odour and taste”
Risk Assessment
• New and more detailed rules for traditional RA
• New type of RA added in attempt to streamline review and ameliorate concerns
• Modified generic uses “approved model”, MOE template and risk management measures approved and published by MOE
• Practitioner concern – this does not provide much relief without risk management
Role of QP
• Less independence, more work
• Detailed rules for Phase I and II ESAs embedded in Reg. 153
• As of July 1 ?? there will be a new MOE “approval” process – acknowledge for filing
Phase I ESA Data
• All reasonable enquiries – all sources of “reasonably accessible information”
• Extensive lists of sources of “records”
• Includes access to information legislation (my take - municipal, provincial)
Conceptual Site Model
• Information about Phase I Study Area
• Property boundaries 250 m from Phase I property boundary or beyond if QP determines
• Potentially contaminating uses, water bodies, underground services
Source: Ministry of Ontario, Brownfields Redevelopment Amendments to O. Reg. 153/04, Brownfields Stakeholder Group Meeting, May 23, 2010
Potentially Contaminating Activities
• Assess all within or beyond 250 m
• List of 70 activities encompasses most of the usual suspects
• # 71 - Fill of unknown quality
Enhanced Phase I ESA
• Property had garage, dry cleaning or “bulk liquid dispensing”
• Permits and records, MSDS, inventories of chemicals, tanks, storage areas
• Waste management records
• Environmental audit reports
Phase II ESAs – Delineation
• How to draw the plume of contamination
• Keep sampling until areas of highest concentration found
• Edges of plume – vertical and horizontal extent to the next sampling location that is < standard – no interpolation
Phase II ESAs – Averaging
• Compliance to be determined at each sampling point
• Average where 2 or more samples at same location and depth (within 2 m radius)
• Composite samples not allowed for VOC analysis
Phase II ESAs Confirmatory Sampling
• Two quarterly consecutive ground water samples needed where remediation done
• Four if remediation in situ
Phase II ESAs - Contaminants
• CSM – Phase I and incorporate the results of the Phase II assessment
• Soil vapour survey for volatile contaminants including VOCs
• Measure and report on “free product” or “free flowing product”
Phase II ESAs - Hydrogeology
• Groundwater levels plus temporal variations – monitor or estimate
• Measure levels at every sampling event
• Flow direction using 3 or more monitoring wells
• Horizontal gradients
“Best By” Dates
• “Date of last work” researching for Phase I and II
• < 18 months before RSC
Movement and Treatment of Soil
– Reporting Quantities
• New MOE interest and emphasis on tracking
• QP must report on quantities and quality of soil
• Removed or imported
• Including characteristics (Phase I) of the source property
• Remediated on and off-site
Rules for Importation
• Rules apply to RSC properties ONLY
• General Rule - Table 1 soils fine for importation to any site including sites with RSC
∀ ∴ practice – import soil first, then do Phase II
Importing Clean Soil
• Know your source of backfill and bedding - no exemption for material from aggregate operation that has naturally occurring exceedance
• Many aggregate operations produce materials that exceed the new standards, usually metals, the exact contaminant depends on where in Ontario
Regulatory and Civil Liability
• Civil – no civil liability protection except for municipalities
• Municipalities – no liability for reliance on RSC by reason of inaccuracy in RSC
• Regulatory – RSC provides limited protection “reopeners” but not in the event of off-site migration
Transition
• Site Condition Standards – July 1, 2011
• New rules for Phase I and II ESAs – July 1, 2011 or earlier if and when RSC approval procedures proclaimed
• Ongoing risk assessment or remediation? Submit notice before January 1, 2011 and stay under the old rules up to January 1, 2013
Contact Information
John Willms
Phone: (416) 862-4821
Willms & Shier Environmental Lawyers LLP
www.willmsshier.com