Ontario Brownfield Update – Part 1

On April 24, 2017, the Ontario Ministry of the Environment and Climate Change (MOECC) outlined proposed changes to Ontario Regulation 153/04 as part of the planned Excess Soil Regulatory Package. These regulations primarily deal with management and re-use of excess soil from construction sites (more on that in a future blog), but also contain amendments to the Record of Site Condition regulations intended to address identified issues in the RSC process. The proposed amendments were posted on the EBR Environmental Registry for a 60-day comment period. The complete EBR posting can be found at www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTMyMzMw&statusId=MjAwOTA2&language=en. The proposed changes to O. Reg. 153/04 will be discussed over my next few blogs, including my comments (which generally echo those of my colleagues in our water-cooler discussions).

Delineation: Currently, full horizontal and vertical contaminant delineation is required under O. Reg. 153/04, which often poses technical and financial challenges. The amendments would permit an applicant to request MOECC relief from the delineation requirements at an RSC property undergoing a Risk Assessment. Provided certain strict conditions are met, and the Director is satisfied with the supporting evidence from the Qualified Person (QP), the Director could issue an order granting relief from the full delineation requirements.

Full delineation can be onerous and extremely expensive, and relief from this requirement would be welcome at many properties. While this amendment may provide some relief from the strict requirements for full delineation; in my opinion, the conditions to be met could be restrictive (such as requirement that “all reasonable efforts to delineate are undertaken”), and with the final decision at the discretion of the Director; the practical application of such an amendment may turn out to be very limited.

Substances Used For the Purpose of Safety Under Conditions of Snow/Ice: The amendment would permit an exemption if the QP determined that an applicable site condition standard is exceeded solely because a substance has been used for the purpose of traffic and pedestrian safety under conditions of snow/ice. Currently the exemption related to use of salt for de-icing is limited to municipal or government applications; not for use on private property.

This amendment may help address the problem of municipalities expropriating land for a road widening and requiring the property owner to obtain a RSC before expropriation, only to have the owner remediate said land due to salt-related contamination, when it is undetermined whether the impacts are caused solely by the municipality salting the road way, or by the owner salting his parking area. I have always disagreed with the concept that it was acceptable for one party (the government) to pollute, while the same actions by a private individual would be considered contamination. This may help to provide more fairness. That said, we need to reduce our dependence on road salt and find safe and responsible alternatives to reduce salt-related impacts and to protect valuable groundwater resources.

Converting Low-Rise Commercial Buildings to Mixed Use: This exemption would permit property owners that are renovating a portion of a low-rise commercial use building, but not demolishing and rebuilding or altering the building footprint, to convert the upper floors to residential use without requiring an RSC.

There are limiting conditions for this proposal; however this may alleviate some extra costs and RSC headaches for owners that want to add residential units to the upper floors of their commercial building (i.e. the RSC exemption is limited to existing, four-storey maximum height commercial buildings, with no changes to the commercial-use ground floor, below grade structures or building footprint).

Temporary Roads Related to Development: Under this amendment, the use of a property as a temporary road would not, for that reason alone, trigger the need for an RSC when the property is converted to residential use. Roadways are considered as “community use” and there is currently no distinction between a permanent roadway and a temporary construction road; thus triggering the RSC when temporary construction access roads to a development are phased out and converted to residential use.

Provided the temporary road is recognized as such in a planning or development approval, this requirement for RSC submission would be dropped as the temporary road would retain its past use (e.g. vacant land) until changed to another use (residential). This should help subdivision developments, and may reduce the “make-work” RSC projects favoured by some consultants.  

About the Author:

Bill Leedham, P. Geo., CESA

Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (www.aesac.ca); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca