New Risk Assessment Changes for Contaminated Sites

On November 1, 2016, the Ministry of Environment and Climate Change (“MOECC”) announced that it will be bringing into effect an updated “Approved Model” to be used by property owners in submissions of Modified Generic Risk Assessments (“MGRA”) for contaminated sites. This reflects the first change to the MGRA scheme since 2011 and is intended to increase the number of sites that would qualify for a MGRA, thus improving brownfield redevelopment across Ontario.

Background:
The MGRA is a process that outlines a streamlined approach which adopts property specific standards for the remediation of contaminated sites that proponents must adhere to in order to file a Record of Site Condition (“RSC”). The MGRA effectively pre-approves a set of Risk Management Measures and pre-calculates the standards that would apply to the site if the measures were implemented. These pre-determined “generic” standards are intended to reflect those standards that are accepted as being protective of human health and the environment based on the proposed use of the site, potential contamination pathways and toxicity levels.

The RSC sets out the environmental condition of a property at a particular point in time, based on environmental site assessments conducted by a qualified person. An RSC must be filed in the RSC registry before property use changes in certain ways and is often considered a pre-condition for property development by banks and municipalities across Ontario. Thus, the risk assessment process involved with obtaining an RSC is fundamental to promoting brownfield redevelopment in the province.

While it was intended that the MGRA approach would allow for a more efficient, cost-effective and timely risk assessment process, in practice, only a small number of sites actually qualified. The new Risk Assessment changes introduced by the MOECC are aimed at increasing the number of qualifying sites by drawing on experiences gained since the scheme was initially introduced in 2011.

The New Model:
After consultation with experienced environmental professionals and industry representatives, the MOECC developed the new model with the following underlying purposes in mind:

• To develop new features that will more adequately protect the environment;
• To update model standards to reflect current scientific knowledge;
• To promote more efficient brownfield redevelopment; and
• To increase the number of sites across Ontario that can qualify for the streamlined risk assessment process.

As summarized on the Environmental Registry, the new features of the model are as follows:

• Risk management measures to prevent vapours from entering buildings to protect indoor air quality;
• Land use control measures to ensure drinking water is municipally supplied to prevent risk where groundwater is not potable (no wells);
• Additional risk management options for capping a site;
• Health and safety plan and a soil and groundwater management plan to protect people/ community during redevelopment;
• Risk assessment submission form is integrated into the Approved Model and is auto-populated;
• Standardized approach to demonstrate that there is no evidence of free product (no oil slick) on site;
• Greater ability to utilize soil vapour sampling to help demonstrate that the site meets relevant standards; and
• Ability to utilize new ministry endorsed Toxicity Reference Values (TRVs).

While the hope is that this new model will provide for quicker and cheaper Risk Assessments for a greater number of sites, it cannot be determined with certainty that this will be the result until the model has been implemented in practice. It is also unclear whether the model will provide for greater environmental protection while also promoting more efficient brownfield redevelopment in Ontario, though commentators and government officials appear hopeful.

For more information please review the Environmental Registry Notice by clicking here.

The content of this Blog is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.