CONTENTS

• New Brownfields Law October 1, 2004 But Mandatory Clean-Up Postponed
• Kingston Fisheries Act Conviction Means Water Pollution Hard to Defend
• Guide to Ontario's New Legislation, Regulations, Consultations
  • Waste - EAA, Hazardous Waste Pre-treatment Rules & Reduction
  • Water - Relief For Rural, Small Systems, Permit to Take Water Restrictions and Conditions, Operator Training
  • Brownfields Becomes Law - October 1, 2004
  • Air - MOE Proposing Major Revamping of Regulations, Programs
  • Planning and Source Protection

NEW BROWNFIELDS LAW OCTOBER 1, 2004
BUT MANDATORY CLEAN-UP POSTPONED

Summary

New voluntary clean-up regulations will limit liability of owners, lenders and purchasers to MOE orders. However, there is no protection from civil lawsuits, or for off-site contamination.

The new regime replaces the MOE Guideline for Use at Contaminated Sites in Ontario with new a Record of Site Condition Regulation, a public Environmental Site Registry, and designation of regulated professionals as "qualified persons" permitted to supervise and certify clean-ups.

The government has postponed proclamation of the mandatory change of land use clean-up provisions. When EPA s. 168.3.1 is proclaimed in future, most land use changes to more sensitive uses (e.g. from industrial to residential) will require clean-up and filing of a Record of Site Condition. Until the government proclaims this section, RSCs and clean-ups will continue to be 'voluntary' - i.e. required by purchasers, lenders, insurers or municipalities, but not by provincial law.

Brownfields Amendments

Brownfields Amendments will take effect on October 1, 2004, amending the Environmental Protection Act, Ontario Water Resources Act, Education Act and the Municipal Act  2001. The Record of Site Condition Regulation (O. Reg. 153/04) under the EPA will also take effect on that date.

The new legal regime includes

• property tax incentives
• liability protection for owners
• regulated standards for clean-up and redevelopment of contaminated sites
• definition of classes of "qualified persons" (QP) permitted to conduct and supervise clean-ups and certify Records of Site Condition (RSC)
• mandatory QP insurance requirements
• an Environmental Site Registry.

Highlights

1. Details are set out in the Record of Site Condition Regulation - O. Reg. 153/04, including definitions of Environmental Site Assessment (ESA) standards, transitional provisions, mandatory contents of RSCs, and risk assessment reports.
2. Clean-up standards are published in "Soil, Groundwater and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act" (March 9, 2004). These standards, incorporated by the regulation, will replace the Tables in the Guideline.
3. Only petroleum hydrocarbon standards have been changed from the Guideline. Now fractional analysis is required - more precise, more expensive. Ontario labs are gearing up to provide this analysis, which is the CCME standard used in most other provinces.
4. "Qualified Persons" include three levels of QP who can certify RSCs, and a fourth category of QP who can conduct and supervise risk assessments. (MOE is developing new QP criteria that will replace these in 2006.)
   
5. Individuals registered under the governing statutes as professional engineers, professional geoscientists, certified engineering technicians and technologists and architectural technologists, professional agrologists, and chartered chemists will be able to conduct and certify Phase I ESAs and RSCs. Only engineers, geoscientists, agrologists, and chemists can conduct and certify Phase II ESAs and RSCs.
   
6. Only engineers and geoscientists can certify RSCs based on risk assessment. Prescribed educational and experience requirements apply to professionals conducting or supervising risk assessments.
   
7. MOE has issued Technical Updates setting out transitional requirements and deadlines for grandfathered submissions under the Guideline.
8. As noted above, the government has not proclaimed the provisions that will require clean-up and filing of an RSC for changes to a more sensitive land use.

KINGSTON FISHERIES ACT CONVICTION
MEANS WATER POLLUTION HARD TO DEFEND

Fisheries Act charges for water pollution will be harder to defend in the wake of a May 2004 Ontario Court of Appeal decision. The Court upheld convictions and $150,000 in fines against the City of Kingston, based on evidence that landfill leachate seeping into the Cataraqui River killed fish in lab tests. The Crown did not need to prove that the leachate was toxic in the River, or that it killed the specific kinds of fish living in the River.

In Kingston, the Court of Appeal held that the test for water pollution under the Fisheries Act is stricter than the Ontario Water Resources Act (OWRA) test articulated by the Appeal Court in its 2001 INCO decision. (See our website for more detailed discussion).

Local residents, environmentalists and the MOE worked together to prosecute the City. Citizens who successfully prosecute under the Fisheries Act are automatically awarded 50% of the fines and penalties.

The City of Kingston decision underlines the importance of due diligence and proactive environmental management for owners of landfills and for others who control or cause effluent discharges into water that may contain fish.