Ontario has updated its brownfield regulations—what do the 7 key changes mean?
December 16, 2019
December 16, 2019
In the long term, these amendments should reduce costs and delays in obtaining record site condition approvals
On June 12, 2020, the Ministry of Environment, Conservation and Parks announced that O.Reg. 153/04 was amended to exempt temporary health or residential facilities, such as hospitals or shelters, from needing a Record of Site Condition before being established in response to an emergency. For full details on the changes, please read the MECP’s Bulletin here.
The long-awaited amendments to the Province of Ontario’s Brownfield Regulation (Ontario Regulation 153/04) was approved and filed on December 4, 2019. Finally, the exemptions on contentious substances, such as road salt and public water leaks, has been approved. But what do these changes mean?
The amendment to the regulation was implemented to incorporate the new excess soil regulation scheduled to be filed on July 2020 and to resolve issues with interpretation of the Ontario Regulation 153/04. The hope is that this amendment will facilitate a more flexible approach to record site condition (RSC) approval, one that aligns more with the realities encountered in the field and within the brownfield redevelopment industry. An RSC sets out the environmental condition of a property at a point in time, based on its intended use. An RSC is filed with the Ministry of the Environment, Conservation and Parks (MECP).
Below I’ll break down seven key changes to Ontario Regulation 153/04.
The amendment allows the qualified person (QP) to remove from consideration some contaminants when filing of an RSC. An exemption from consideration as a contaminant has been identified for a substance:
From my experience, these exemptions will minimize many challenges, such as impacts related to road salting and discharges of public drinking water or from naturally occurring minerals. With these substances no longer considered contaminants, clients will be able to forego unnecessary environmental site assessment, risk assessment and/or remediation to achieve RSC approvals. This will save time and money. For the MECP to approve these exemptions, the QP would be required to provide a rationale upon the exemption.
Delineation of a site is the process of determining the extent of the contamination. The nonstandard delineation amendment allows delineation to risk assessment based on human health/ecological drivers; previously, delineation to the generic site condition standards was required to file an RSC. This will enable the QP to provide a rationale that the contaminant has been sufficiently delineated such that the maximum concentration has been identified and that further delineation will not change the interpretation of the distribution of contaminants or the level of human health/ecological risks.
In the past, delineation to generic standards has been a significant issue. It created additional costs by requiring clients to drill deeper to achieve vertical delineation of a contaminant. With this requirement removed, I anticipate RA’s will be approved at a lower cost and in shorter timelines than we are currently experiencing. However, an adequate attempt to achieve vertical delineation will still be required as stated in the amended regulation, what the level of adequacy is still needs to be established through comments received from the MECP in the RSC review process.
Previously, the definition of “road” in the regulation did not distinguish between temporary, such as a construction road, and more permanent roads, such as a highway. This meant an RSC was required before a temporary road could be established in a construction site being developed for residential use. Because “roads” were defined under the “community” land use category, any change to a more sensitive land use would result in an RSC. The amended regulation removes the RSC requirement for a temporary road, allowing a change of use of property use for “a road that is temporarily required during the construction of a new development and will no longer exist as a road when all phases of the development are complete.”
From my experience, the issue with temporary roads caused additional costs and unnecessary timeline delays for the client during brownfield redevelopments, this has now been removed with a more common-sense approach that aligns with the realities in the industry.
The hope is that this amendment will facilitate a more flexible approach to Record Site Condition approval, one that aligns more with the realities encountered in the field and within the brownfield redevelopment industry.
This amendment makes it easier to repurpose buildings of cultural and historical importance within our urban centers. Previously, conducting environmental site assessments and any remediation required an RSC, making it necessary to demolish these heritage buildings. In my opinion, this created a disincentive to repurpose heritage buildings, which resulted in a significant loss to our downtown neighborhoods.
The amended regulation will allow conversion of the upper floors of low-rise, commercial-use buildings to residential or institutional uses without the requirement to file an RSC. The amendment is restricted to buildings with no more than six stories before and after the change, the building envelope has to remain unchanged with no additions to the exterior portions of the building, and the site cannot be used or have ever been used for an industrial use, such as a garage, bulk liquid-dispensing facility, gasoline outlet, or dry cleaner.
Previously, religious buildings were defined to be under the “community” land use category for the regulation, even though they were usually located in residential areas and their use were more closely aligned to schools, which are characterized within the “institutional” land use category. As a result, when converting these former religious buildings to another use, such as residential, an RSC was required.
The amended regulation moves religious buildings to the “institutional” land use category, to avoid the requirement for RSC when repurposing former religious buildings. However, this change will require RSCs to be filed for previous commercial, industrial, and community buildings being converted to religious centers, which creates its own challenges.
Following the legalization of cannabis use within the province of Ontario, we have seen an expansion of industrial-type agricultural activities within our urban centers to cultivate cannabis. This triggers an RSC requirement due to the link with the “agricultural” land-use category. Under the amended regulation, an industrial-type agricultural activity, where soil is not being used from the site, will no longer be considered “agricultural” but “industrial” land use. This amendment makes it unnecessary to file an RSC if these facilities are placed within industrial, commercial, and community buildings.
The regulation has no mechanism to manage horizontally severed properties, such as those cases where the ground floor of the building had a different owner than the upper floor of the buildings. In some cases, the site was owned by multiple owners. Under the amended regulation, it clarifies the site characterization that is required to obtain an RSC for these types of sites. It states that “a Phase One or Phase Two Environmental Site Assessment shall take into account every property at or below ground surface that is above or below the Phase One or Phase Two property.” That is, even though the severed property is on the 10th floor of a tower, the owner would still need to incorporate data that was collected from the ground beneath in order to file an RSC.
Overall, I believe these changes to the regulation have made a positive step toward a more flexible approach from the Ministry of the Environment, Conservation, and Parks to brownfield redevelopment. In the long term, these changes should reduce costs and delays in obtaining RSCs. If you have any questions on the amended regulation, please do not hesitate to reach out to me.