On March 23, 2007, a Notice of Proposal was posted on the Environmental Registry for a 60-day comment period (ending May 22, 2007), to amend Ontario Regulation 153/04: Records of Site Condition, to update the soil and ground water standards for Brownfields. Read the original posting to the Environmental Registry here.

• Consultation included a draft document “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” which contained the proposed updated site condition standards, as well as the scientific rationale document, “Rationale for the Development of Generic Soil and Ground Water Criteria for Use at Contaminated Sites in Ontario”.

In light of feedback received during the comment period and consultations with stakeholders, further revisions to the proposed standards were made.

On October 6, 2008, proposed revised soil and groundwater standards were posted to the Environmental Registry (EBR # 010-4642) for 90 days as part of a Proposal for Amending Ontario Regulation 153/04, Brownfields Records of Site Condition.

In January 2010, a Regulation Decision Notice (Registry number 010-4642) was posted on the Environmental Registry, describing amendments to O. Reg. 153/04, which included updated standards for approximately 120 chemicals to reflect advances in science and consistency with other leading jurisdictions.

• The amendments incorporate a flexible approach to standards by providing several generic tables for use in various land use scenarios and physical settings and also offers the risk based alternative of developing less stringent property specific standards through risk assessment.
• The amendments come into force on July 1, 2011 (approximately 18 months after the regulation was filed). For those who qualify under the grandfathering provisions, an additional 18 months will be provided for soil, ground water and sediment standards only

Effect(s) of Consultation on this Decision:

All comments received during the comment period were considered as part of the decision-making process by the Ministry of the Environment.

A selection of the key concerns and ministry responses are as follows:

Comment: The updated standards are in some cases technologically unachievable due to low method detection limits (MDLs).

Response: The ministry has revised the MDLs (now referred to as “Reporting Limits”, or RLs) in collaboration with the laboratory community.

Comment: The standards are conservative.

Response: The ministry adjusted some model assumptions to decrease conservatism where it has been deemed appropriate.

Comment: The allowable cancer risk level of 1 in 1 million is conservative.

Response: The ministry applies a 1 in 1 million risk level for each media and contaminant, resulting in a cumulative risk of greater than 1 in 1 million.

Comment: Portions of the rationale document are not very clear.

Response: The ministry improved the clarity and transparency of the rationale document where required.

Comment: The Toxicity Reference Values (TRVs) need to be better justified and explained.

Response: The ministry has reviewed the TRVs where required and has documented their revised selection in the rationale document.

Comment: Some of the Table 1 Background standards for volatiles may not represent true background concentrations found in Ontario.

Response: The ministry undertook a project to resample volatiles in partnership with the Canadian Petroleum Products Institute (CPPI). 180 sites across Ontario were completed as of November, 2009.

Comment: Stakeholders want a flexible transition to new standards.

Response: Section 21.1 of the amended O. Reg.153/04 includes transition rules, which provide a balanced and fair approach to implementing the amendments. In general, the regulatory amendments are intended to come into effect on July 1, 2011; however, owners may apply to use 2004 standards for an additional 18 months if they meet the requirements specified in section 21.1.

To further engage stakeholders, the ministry also undertook additional consultations with stakeholders/industry across the province.

As a result of consultation, further revisions to the proposed standards were made, and posted on the Environmental Registry for an additional 120 days of public comment (October 6 , 2008 to February 10, 2009; refer to Notice # 010-4642). 87 submissions were received in response to this posting.

Public consultation after the October 2008 posting included over 20 face-to-face meetings, as well as desktop demonstration pilot studies.

The ministry considered all comments when finalizing the amendments to the regulation.