February 16, 2017 by John Nicholson
There are many definitions of a brownfield. The U.S. EPA defines a brownfield as follows:
The term “brownfield site” means real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.
The Ontario Ministry of the Environment defines a brownfield as follows:
Brownfield properties are vacant or underutilized places where past industrial or commercial activities may have left contamination (chemical pollution) behind. Brownfields can: (1) pose health and safety risks; (2) be costly for the communities where they are located; and (3) be redeveloped to meet health, safety and environmental standards.
Based on the definitions above, is the following property described below a brownfield?
Background on the Property
The subject property contains environmental contamination in the ground due to the operational activities of a previous land use. The soil and groundwater contamination at the property is the result of a former gas station and automobile repair garage in operation between approximately the 1960s and 1990. The extent of the contamination has rendered the property vacant, under-utilized, unsafe, unproductive and abandoned.
In 1992, the portion of the property containing the gas station was severed to divide the still operational gas station from the former automobile service garage. The severed off portion of the original property (i.e., the property in question) has not been utilized for any purposes since 1992.
The local municipality, recognizing contamination was evident at the subject property, subsequently required that a Record of Site Condition (RSC) be completed prior to the draft approved development occurring at this location. A RSC a technical document that summarizes the environmental condition of a property, based on the completion of environmental site assessments.
A signed Development Agreement requested by the Municipality stipulates this requirement be completed prior to proceeding. In addition, the Municipality placed a “Holding” Zone designation on the property in its Zoning By-law prohibiting development until a RSC is provided.
A toxicologist reviewed the soil and groundwater concentrations present at the subject property and determined that human health risks may be present as result of the subsurface contamination and the subject property may therefore be considered ‘unsafe’.
Although some remediation was performed, contamination from an off-site source prevented total and complete clean-up and the ability to state the property was clean to the applicable clean-up standard. As such, a site specific risk assessment (SSRA) was performed at considerable cost. The SSRA was eventually approved by the MOECC. The clean-up (Phase III ESA) report and SSRA were used to support the RSC.
The municipality was of the view that the property was not a brownfield because the subsurface area impacted by contamination represents only 5 percent of the property. Based on this percentage, the municipality stated there was no evidence that the extent of the contamination in relation to the overall property rendered the site underutilized or vacant. As such, the municipality held the view the property was not a brownfield.
The property owner disagrees with the opinion of the municipality as to why the property is vacant and underutilized. The municipality was preventing development of any portion of the property unless the property owner committed the time, effort, and money to perform the clean-up, conduct the SSRA, and file a RSC. Regardless of the extent of contamination at the property, significant money and time was spent to get the property to the point where the municipality would rescind the “Holding” Zone designation and allow the vacant, underutilized property to be developed.
Is the property a brownfield? The local municipality says no. What say you?