• Ontario Brownfields Update – Part 2

  • In my last blog I discussed some of the amendments to Ontario Regulation 153/04 proposed by the Ontario Ministry of the Environment and Climate Change (MOECC). The remainder of these proposed amendments is discussed below, along with my commentary.   The complete Excess Soil Regulatory Package can be found at www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTMyMzMw&statusId=MjAwOTA2&language=en. The MOECC has indicated that they will consider comments this summer and finalize the regulatory amendments for planned implementation in the fall of 2017.

    Treated Drinking Water: This amendment would allow for exceedances at RSC properties, where the QP determines that a standard is exceeded solely because of the presence of treated drinking water by-products. Such exceedances can occur in groundwater when byproducts of municipally treated water react with organic matter, leading to the creation of trihalomethanes, including chloroform.

    This issue first arose in 2011 when the generic standards for chloroform in groundwater were revised to below those for drinking water. Chloroform exceedances were commonly found in urban groundwater where treated water was released through leaking water and sewer lines, hydrant flushing or other discharges. This has been a particular pet peeve of mine for years, and I wrote two blogs on this subject in early 2015 (www.down2earthenvironmental.ca/blog/2015/02/ & blog/2015/03/). I hope this amendment finally resolves this problem. Too bad it is several years, and tens of thousands of dollars too late for RSC property owners forced to undergo expensive delineation and risk assessment to prove that an eighth floor apartment dweller wouldn’t succumb to cancer because groundwater in a bedrock aquifer six metres below his building recorded marginally higher levels of chloroform than the drinking water from their taps.

    Naturally Elevated Concentrations of Substances: This amendment would clarify that a substance in fill that was deposited at a property prior to the ESA is not deemed an exceedance if the QP determines that the concentration of a substance in the fill does not exceed local naturally occurring concentrations, as demonstrated by comparison of sample analyses completed within the same, or an adjacent municipality. This would only apply to historical fill placed before any ESA work was initiated, and the presence of fill would still need to be identified as a Potentially Contaminating Activity (PCA).

    This amendment may be beneficial for RSC developments in some areas of Ontario with higher background levels of certain contaminants (e.g. naturally elevated levels of zinc, copper and lead due to local mineralogy). There are existing processes in place to assess the potential for contamination due to naturally elevated background (i.e. conducting a Background Study, as defined by MOECC) however these studies require a significant amount of data points. We will have to wait and see what specific requirements are attached to this amendment, or whether this becomes a discretionary decision of MOECC staff.

    Day Care Centres: This amendment would update the term “day care centre” to “child care centre” to clarify that a licensed “child care centre” is an ‘institutional use’ as defined under O. Reg. 153/04.

    Currently, the term ‘day care centre’ is not defined in O. Reg. 153/04 and could be considered as a community use property, and for RSC purposes would be grouped with industrial and commercial property uses. This amendment may help to rectify this problem by clarifying the wording in the Regulation, and bringing it in line with the language in the Child Care and Early Years Act, 2014.

    Buildings Used for Indoor Gatherings of People for Religious Purposes: This amendment would remove buildings of this nature from the definition of ‘community use’ and place them within the definition of ‘institutional use’. This would: (1) allow a change of property use from a building used for indoor gatherings of people for religious purposes to residential use, without requiring the filing of an RSC; and (2) require the filing of an RSC in order to change the use of the property from industrial, commercial or community to a building used for indoor gatherings of people for religious purposes.

    This proposal should assist in determining more appropriate land uses designations for places of worship that offer activities similar to a school or day care centre by defining them as institutional rather than community use. Removing RSC requirements for a church to be (re)developed for residential use also makes sense since a church is not undertaking industrial or commercial activities, and should not be considered in the same risk group as a commercial/industrial property.


    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