A Proposal for Amendments to Ontario Regulation 153/04, Brownfields: Record of Site Condition Regulation was filed on the Environmental Registry on October 6, 2008. The comment period expires on February 3, 2009.

The Notice states that the amendments include a package of interconnected elements including changes to provide for enhanced Record of Site Condition (RSC) integrity, liability protection for off-site migration from the RSC property, a streamlined risk assessment approach and strengthening of Soil and Groundwater Site Condition Standards.

The proposed amendments relating to RSC integrity provide for a third (30) business day notice period during which the Ministry of the Environment (MOE) would conduct an administrative check and then either provide written notice that the RSC could not be filed because it was incomplete, provide notice that the Director intends to conduct a review prior to the RSC being filed on the Registry or provide a written acknowledgement specifying the date that the RSC has been filed.

In addition, substantial amendments have been made to the requirements for a Phase I Environmental Site Assessment (Phase I ESA). Those items which are new include the requirement for identification of recognized environmental conditions by a Qualified Person and the preparation of a preliminary conceptual site model which includes a site plan, a description of contaminants likely to be present, surface and subsurface structures, geological and hydrogeological conditions, contaminant transport pathways and possible receptors. The requirements for a Phase II Environmental Site Assessment (Phase II ESA) have also been enhanced so as to require collection and analysis of groundwater samples from all locations where a contaminant may be present at a concentration greater than the applicable Standard and where a property was previously used for a specified use, such as a gas station. A refined conceptual site model is a mandatory requirement of the Phase II ESA.

Amendments have been proposed to deal with which concentration of contaminants migrating off-site would result in loss of liability protection for a property owner. The Proposal provides for a streamlined risk assessment approach. The MOE is proposing to provide proponents with a Ministry approved model which would enable a Qualified Person for a Risk Assessment to modify generic assumptions and remove generic exposure pathways to reflect property-specific conditions. The model would yield property specific standards while ensuring the same level of protection as generic standard. The intent is to increase the applicability of the modified generic risk assessment approach.

Last, the Soil and Ground Water Site Condition Standards have been substantially modified. In many cases, the Standards have been revised downwards substantially, although in some cases there have been increases in the Standards.

Considerable controversy has already greeted the release of the Proposal and it is expected that a large number of stakeholders will be providing comments.

For further information please see: http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA0NTcw&statusId=MTU2NjE4