Overview of Ministry Contaminated Sites and Brownfields Program

Transcription

1 Overview of Ministry Contaminated Sites and Brownfields Program 57 th Ontario Building Officials Association Conference October 7, 2013 Jennifer Volpato P.Geo., P.Eng. Guelph District Office, Ontario Ministry of the Environment These slides provide summary of information about to O. Reg. 153/04 (as amended) and complementary statutory provisions. The slides are provided for educational use, and are not complete or exact reproductions of the legislation. They are not intended, or to be used, as advice, legal or otherwise, about the requirements for records of site condition or the obligations of those submitting them. Such advice should be obtained from competent experts, including lawyers. Where there is a discrepancy between anything in these slides and a legislative provision the legislation prevails. Ontario legislation may be found at 1

2 Brownfields / Contaminated Sites For the Ministry, two broad categories: Proponent driven Compliance driven Proponent driven sites generally have contamination limited to onsite and are going through the Record of Site Condition process under Ontario Regulation 153/04 Compliance driven sites generally have contamination on and offsite and have the potential to cause or are causing an adverse effect (i.e. gasoline vapours getting into basements, an industry contaminating a municipal well) 2

3 Overview of Contaminated Sites Programs Proponent Driven Clean up [District Offices /Standards Development Branch] Brownfield Redevelopment Record of Site Condition Framework () Reviews Risk Assessment Acceptance / Issuance of Certificate of Property Use (CPU) All Contaminated Sites Compliance Driven clean up [Operations District Offices] Contaminated Sites identifying environmental or human health risks identified before they become issues (e.g. vapour intrusion, well impacts) Prioritizing these sites Where there is a contaminant present that may or is causing adverse effect or water quality impairment are identified Financial Assurance Approvals Remediation Technologies Risk Assessment / Risk Management Area Wide Risk Assessments Inspections 3

4 Proponent Driven Sites Protection for property owners is contingent upon a record of site condition () being filed in the Environmental Site Registry ( In order to file an, the property must have been properly assessed and shown to meet the soil, sediment and groundwater standards appropriate for the intended/future use of the property. Signed off by a Qualified Person (Engineer or Geoscientist) including certification that the work followed the requirements of Ontario Regulation 153/04 An is mandatory for land use changes to more sensitive use (ie industrial to residential). An is optional in other cases although some municipalities and financial institutions require them for their own purposes 4

5 Proponent Driven Sites - Example St. Catharines Spectator Facility (55 McGuire St.): CPU No UBPWD issued July 16, 2012 & No , Filed December 20,

6 Proponent Driven Sites - Example St. Catharines Spectator Facility: Ministry of the Environment 6

7 Compliance Driven Sites Administered using general provisions under Environmental Protection Act Protection and preservation of human health and the natural environment. Prohibition for the discharge of a contaminant that causes or may cause an adverse effect. (s.14) The Site Condition Standards (O. Reg 153) are set at the lowest concentration that may cause an adverse effect to the environment or humans. They take into account dermal, vapour and ingestion pathways for human. An exceedance of the generic standards, however, does not automatically mean a clean-up is needed or an adverse effect has occurred. The extent (ie on or off-site), proximity to receptors and the magnitude of the exceedances are used by the Ministry to determine degree of Ministry involvement for compliance driven sites. 7

8 Compliance Driven Sites Ministry staff are provincial officers who have the legal authority to enter a facility to enforce provincial environmental legislation Use a variety of measures to ensure compliance including voluntary action and the use of mandatory measures such as orders, tickets and charges. MOE manages and undertakes compliance and enforcement activities at contaminated sites in order to mitigate risks to human health and the environmental. Responsible Party - A person who owns or owned or who has or had management or control of an undertaking or property; Joint liability for historical contamination; 8

9 Compliance Driven Sites- Example A Former dry-cleaners; Site is currently vacant; Site was found to have cvocs in both soil and groundwater (PCE and related breakdown products); Investigations ongoing since 2000; RAP submitted and approved by the ministry in 2009 (updated mid-2012) Remedial Actions: Soil excavation (947 additional tonnes removed) passive collection trench installed; Indoor Air Program implemented at adjacent residential property; Off-site investigation; Monitoring on-going Owner considering 9

10 What is a Record of Site Condition? A Record of Site Condition is a document that provides a summary of the environmental condition of a property as certified by a Qualified Person at a point in time. Under XV.1 of the EPA, a Record of Site Condition must be completed and filed in the Brownfields Environmental Site Registry (BESR). Provides limited protection from environmental Clean-up Orders New regulation amendments came into force July 1, NOTE: all s filed before July 1, 2011 are still valid. 10

11 What is Mandatory Filing? EPA contains provisions that prohibit certain changes in property use unless an is filed; (s ) Land Use types Section 14. of O.Reg.153/04; This prohibition makes it mandatory for a property owner to file an before changing the use of a property to a more sensitive use; This prohibition is commonly referred to as the Mandatory Filing provision; It is applicable law under the Building Code Act,

12 Property Use Changes Triggering Standards Category 1 Required to Cross to Sensitive Property Use Standards Category 2 Standards Category 3 Industrial Residential Agricultural Commercial Parkland Other Community - except section 14(10) Required to Cross to Community uses with youth focus Community section 14(10): Indoor pools, arenas, enclosed stadium, indoor sports field or gymnasium Institutional Site condition standards are the same for each property use within a category A change from a use in category 1 to a sensitive use requires an Property use changes within these categories do not trigger the mandatory filing requirements with exception of section 14(10) 12

13 Determining Property Use If property is unused and/or vacant, property use considered as most recent (an abandoned gas station is still commercial); Mixed use is considered most sensitive use; Land use in zoning bylaws will NOT be used. 13

14 Exemptions Requirement 1. Person may change property use from railway line to a trail for recreational purposes; 2. Property use from a land filling site approved under Part V. of the EPA to any property use; 3. Where current use is mixed use building (e.g. commercial/residential building) and expanding a sensitive use (Note: this does not apply if mixed uses are found across the property). 14

15 Exemptions Building Permits Building permit can be issued if construction is limited to: Removal of soil, rock or fill for purpose of making an excavation; The erection of a retaining structure or other structure: To support the sides of the excavation; Erected to assist an investigation in relation property; Other activities necessary for purpose of filing an. Conditional Building Permit can be issued Building Code Act 15

16 Record of Site Condition Process Records of Site Condition: A Guide on Site Assessment, the Cleanup of Brownfield Sites and the Filing of Records of Site Condition Four components of process include: Environmental Site Assessment(s); Meeting the Standards; Submit a Record of Site Condition to Ministry; Record of Site Condition filed to the Registry. ESA Meet Standard Submit on BESR 16

17 Filing a Record of Site Condition () Owner determines need to file Owner retains Qualified Person (QP) to conduct a Phase I ESA Is a Phase II ESA needed? YES Owner retains a QP to conduct a Phase II ESA NO NO The is filed on the Brownfield Environmental Site Registry YES Does property meet standards? NO Is site remediation necessary? YES Property is remediated and confirmatory sampling done NO Will a RA approach be used? YES MOE responds to RA and if appropriate issues a Certificate of Property Use (CPU) QP completes a Risk Assessment and submits to MOE Owner retains a QP and a Pre-Submission Form is submitted to MOE 17

18 ESA Meet Standard Submit on BESR 1) Environmental Site Assessments (ESA) All s have to meet the Phase One and Two ESA requirements found in the regulation. ESA requirements were established through consultation with the regulated community using industry best practices and existing CSA standards. Ensures a clear and consistent approach for filing which levels the playing field for property owners and QPs. For purposes: Phase I ESA - determine the likelihood that one or more contaminants have affected land and water, Phase II ESA to determine the location and concentration of contaminants in land or water. 18

19 1) ESA Continued: Phase I ESA (Schedule D): Phase I Property; and Phase I Study Area - includes Phase I Property; Any other property located wholly or partly within 250 m of the Phase I Property; and Any other property that the QP determines should be included in the study area. Ministry of the Environment 19

20 1) ESA Continued: Phase I ESA (Schedule D): Areas of potential Environmental Concern (APEC): Past or present uses in, on or under the Phase I Property; and Potentially Contaminating Activities (PCA) Schedule D - Table 2. Ministry of the Environment 20

21 1) ESA Continued: Phase II ESA (Schedule E): Mandatory when: Where the Phase I property or any part of the property has been or is industrial or commercial (gas station or dry cleaners); or PCA, past or present, on property, or off-property which has creates an APEC on the Phase I property. Reports cannot be older than 18 months Ministry of the Environment 21

22 ESA Meet Standard Submit on BESR 2) Site Condition Standards Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act Organized by property use and potability of ground water; Application is limited by site specific conditions (shallow soil); Created using the best available science; Tables contain soil, sediment and ground water standards; Background standards based on Ontario Typical Range numbers; Generic standards are risk based numbers derived through a standard model. 22

23 ESA Meet Standard Submit on BESR 2) Site Condition Standards Continued Potable versus Non-Potable Groundwater For Non-Potable: The Property or any Property within 250 m of the boundary of the Property are supplied by a municipal drinking water supple and have NO wells; Not a well head protection area or other designation identified by the municipality for the protection of groundwater OR where the municipality has consented in writing Not an agricultural or other property use QP is required to give notice to the local and upper tier municipality, as may apply, of the intent to apply Non-Potable standards; Local and upper tier municipality provide Notice of Objection within 30 days. Table 1 Full Depth Background (Environmentally Sensitive Areas): Property is within, or within 30 m of, an Area of Natural Significance ; ph surface soils <5 or > 9; ph subsurface soils < 5 or >11; or QP determined it is appropriate. Ministry of the Environment 23

24 ESA Meet Standard Submit on BESR 2) Site Condition Standards Continued Table 2 & 3 Full Depth Generic (Potable and Non-Potable Groundwater) Table 4 & 5 Stratified (Potable and Non Potable Groundwater) Cannot be used when: Environmentally Sensitive Site ( i.e. Table 1) Agricultural or other as defined by the Reg. Shallow Soil Property Within 30 m of a Surface Water Body Table 6 & 7 Shallow Soil (Potable and Non Potable) Which 1/3 or more of the area consists of soil equal to or less than 2.0 m of soil above bedrock Table 8 & 9 Within 30 m of a Surface Water Body (Potable and Non- Potable) Ministry of the Environment 24

25 ESA Meet Standard Submit on BESR 2) Property Specific Standards Risk Assessment Procedures for the Use of Risk Assessment under EPA Part XV.1 Risk assessment (RA) is a scientific process used to describe and estimate the likelihood of adverse effects to human health and the environmental resulting from exposure to all contaminants in, on or under the property; Outcome is establishment of Property Specific Standards; Unique Qualified Person for risk assessment (QP RA ) Multi-disciplinary teams (P.Eng., P.Geo., Human Health Toxicologists, Ecologists etc.); RA includes: Pre-Submission Form (PSF); Human Health and Ecological risk assessments; and, Report Reviewed under timelines (8-22 weeks) dependant on type of risk assessment; New Modified Generic Risk Assessment purpose is to provide a streamlined alternative to meeting generic standards and Tier 3 risk assessment process 25

26 2) Property Specific Standards Risk Assessment Tier 2 (8 week review period) Modified Generic Risk Assessment Model (MGRA) the Approved Model Streamlined Tier 3 (16 week review period) MGRA + Tier 3 (16 to 22 week review period) Ministry of the Environment 26

27 ESA Meet Standard Submit on BESR 2) Property Specific Standards Risk Assessment Continued: scientifically examines the potential risk posed to humans, plants, wildlife and the natural environment from exposure to a contaminant; through this process an owner/developer has the ability to generate property specific standards that are protective of human health and the environment; and MUST assess all major pathways for each identified contaminant. Evaluates the Risk and identifies any risk management measures that may be required Property & Building Restrictions Capping of on-site soils Measures to be taken during redevelopment Other (Pump and Treat system) 27

28 ESA Meet Standard Submit on BESR Certificate of Property Use For sites that require risk management measures (RMM s) to be implemented in support of the RA; Is the only legal document that can be issued to enforce the RMM s; Issued by the local district office by the appointed director; Amongst the conditions, can include soil management plan and Financial Assurance; Is a class II instrument for EBR filing purposes, required days posting (tier 3 only); Certificate of Requirement usually registered on title of the property to provide anyone dealing with the property notification of the CPU. 28

29 ESA Meet Standard Submit on BESR 3) Submit the Key Components of the Form: Part I Property Ownership (legal name), Property Information, Owner s Certifications Part 2 List of Reports, Summary of Property Conditions, Description of site cleanup or risk management plan Qualified Person s and Owner s Certifications Attachments Property location documents (survey or plan) Ownership/authorization documents Certificates of Status for owner and consulting company 29

30 ESA Meet Standard Submit on BESR Filing Process see EPA (July 1, 2011) Submitted If Complete, 30 business day period starts Acknowledgement of date Filed has not been completed in accordance with regulation Notice of Review Could include Field work Notice of Defect(s) Acknowledgement of date Filed 30

31 ESA Meet Standard Submit on BESR 5) Environmental Site Registry Publicly accessible, Web-based registry Facilitating public access to information Information includes, and if applicable, notices Contains a Notice advising users to consider conducting their own due diligence of the environmental condition of any property D_ html 31

32 Adverse Effect And Re-Openers filing protects property owner and others (see s (1) of EPA) from certain orders under the EPA and the Ontario Water Resources Act (OWRA). Re-openers of the protection from orders; Result in loss of protection for some or all the persons given the protection when an was filed. Does not mean an order can or will be issued to those who have lost protection. Ordinary requirements to issue an order must be met in each case. 32

33 Adverse Effect And Re-Openers Re-openers False or Misleading Information Adverse Effect Cannot revoke an but can post a notice on the Environmental Site Registry. An exceedence of a standard is not an adverse effect. An assessment of all available information should be completed. (see guidance for determining adverse effect) 33

34 Guelph District Office Ministry of the Environment Guelph District Office One Stone Rd. West, 4 th Floor Guelph, ON N1G 4Y2 Tel: or Fax: Hours: M to F, 8:30 am to 5:00 pm with evening and weekend shifts 34