Navigating Brownfields in Ontario: An Overview of Ontario Regulation 153/04 Risk Assessments and Due Diligence Risk Assessments
Blog Overview
Risk assessment plays a critical role in managing contaminated sites, including brownfields, and supporting property transactions in Ontario. Under Ontario Regulation 153/04 (O. Reg. 153/04), risk assessments are a formal, science-based process used to evaluate potential risks to human health and the environment in support of a Record of Site Condition (RSC). In contrast, due diligence risk assessments or screening-level risk assessments are typically undertaken outside the formal RSC process to help property owners, developers, and lenders better understand environmental liability, financial exposure, and risk management options.
This article provides an overview of brownfields, as well as O. Reg. 153/04 risk assessments and due diligence risk assessments, outlining their purpose, key differences, regulatory context, and when each approach may be appropriate.
Brownfield vs Greenfield
A brownfield is an abandoned, vacant, or underutilized commercial or industrial property which may be contaminated because of former on-site operations. Common examples of brownfields include former gas stations, factories and manufacturing plants, dry cleaners, rail yards and decommissioned landfills. In contrast, a greenfield is undeveloped land with no known contamination.
What regulations govern brownfield redevelopment in Ontario?
To promote the redevelopment of brownfields in Ontario in a way that is protective of human and ecological health, the Ministry of the Environment, Conservation and Parks (MECP) established Ontario Regulation 153/04 (O. Reg. 153/04) under the provincial Environmental Protection Act.
Under O. Reg. 153/04, a Phase 1 Environmental Site Assessments (ESA) is conducted to characterize potentially contaminating activities (PCAs) and Areas of Potential Environmental Concern (APEC). If PCAs and APECs are identified, a Phase 2 ESA is conducted to characterize on-site contamination in environmental media such as soil and groundwater.
What happens if a brownfield is contaminated and needs to be redeveloped?
Under O. Reg.153/04, concentrations of chemicals in soil and groundwater measured in a Phase 2 ESA are compared to the generic Site Condition Standards (SCS) protective of human health and ecological receptors. If exceedances are identified, site remediation can be conducted to meet the SCS. If remediation of soil or groundwater to meet the SCS is not technically or economically feasible, a property owner may opt to proceed with an environmental risk assessment (often referred to as a contaminated sites risk assessment).
What is a contaminated site risk assessment?
A contaminated site risk assessment is an evaluation of the likelihood and magnitude of adverse effects resulting from exposure of both human and ecological receptors to environmental contaminants.
In Ontario, the risk assessment process involves the development of alternative standards (i.e., property-specific standards), often with requirements for implementing risk management measures (RMMs) to mitigate potential health risks while leaving contamination in place. As such, risk assessments allow property owners and developers to manage soil and groundwater contamination in brownfields and contaminated sites without full remediation to the MECP Standards. As a result, the risk assessment process can:
- Reduce excavation and disposal costs
- Minimize project delays
- Allow deeper contamination to remain in place safely
- Enable complex urban redevelopment
What are the types of contaminated site risk assessments in Ontario?
In Ontario, contaminated site risk assessments can be conducted under the regulatory process laid out in O. Reg. 153/04 to obtain a Record of Site Condition (RSC), or under the non-regulatory route (e.g., due diligence risk assessments or screening-level risk assessments).
The two primary types of contaminated sites risk assessments submitted under O. Reg. 153/04 are:
- Tier 2 Modified Generic Risk Assessment (MGRA): A Qualified Person for Risk Assessment (QPRA) can modify the SCS using the Ministry-approved MGRA model to generate property-specific standards that are based on the unique conditions of the site which may be numerically higher while continuing to be protective of health and the environment. The preparation and review process of a MGRA is often fast and cost effective; however, a limited number of sites can be assessed using this approach due to strict data requirements and the limited number of risk management measures offered by the MGRA to mitigate potential risks.
- Tier 3 Risk Assessment: A QPRA can develop property-specific standards through a traditional risk assessment based on the specific conditions of the contaminated site. This offers greater flexibility but is more time and resource-intensive, both for the proponent and for Ministry review/decision-making.
When is a record of site condition required?
Property owners may be required to have an RSC filed for one or more of the following reasons:
- Mandated by O. Reg. 153/04 if redeveloping the site to a more sensitive land use (e.g., from industrial use to residential use)
- Municipalities may occasionally require it for a specific property going through the planning approval process
- Sale/Purchase of the property and one of the parties requires it, and/or,
- Property is undergoing financing and the lender is requesting an RSC.
When is due diligence risk assessment required?
Under the non-regulatory route, a due diligence risk assessment (DDRA) or screening-level risk assessment (SLRA) is typically completed to help property owners, developers, and lenders better understand potential environmental risks posed by on-site contamination, environmental liabilities, financial exposure, and risk management options.
If an RSC is not required or desired, the property owner or other interested parties can still retain a QPRA to complete a due diligence risk assessment. These due diligence risk assessments are completed “in the spirit of O. Reg. 153/04” and are presented in a streamlined report that can be tailored to meet the intended objectives. They provide excellent value for assessing risks and providing recommendations for risk management measures, using approved Ministry approaches, without the longer timeline or associated costs, as one does not have to formally go through the lengthy Ministry review process.
Due diligence risk assessments are commonly conducted when one wishes to:
- Divest or acquire a potentially contaminated property (e.g., property sale/financial purposes)
- Address legal liability and compensation issues between the property owner and other stakeholders, or
- Evaluate potential health risks to on-site workers or the surrounding community arising from any existing contamination
What type of risk assessment do I need for my contaminated site?
The flow chart below presents an overview of the steps determining the appropriate contaminated sites risk assessment.
Figure 1. Steps Determining the Appropriate Risk Assessment for Contaminated Sites in Ontario
Top 5 reasons to partner with Intrinsik for your contaminated sites risk assessment project
- Intrinsik’s QPRAs have over 20 years of experience conducting O. Reg. 153/04 risk assessments, as well as due diligence risk assessments to support financing or the purchase or sale of properties.
- Our team’s extensive experience and internal systems allow us to provide cost-efficient solutions without compromising quality.
- Our process includes a thorough review of all relevant data and reports and the completion of a data gap analysis to confirm that all necessary documentation is available to move the project forward and meet regulatory compliance and client deadlines.
- Our reports are presented in a concise and streamlined format to improve readability and transparency.
- Our pricing is designed to maximize value for our clients.