by Carla Marcoccia
The environmental quality of soil, groundwater and sediments in the province are defined by existing provincial statutory standards. These standards are used as comparative tools to evaluate if the soil, groundwater and / or sediments are contaminated relative to the compound specific applicable provincial criteria.
The Ministry of Environment (MOE) is legislated to enforce the standards. The regulation in which the standards are enforced is known as the Record of Site Condition Regulation (O. Reg. 153 / 04) (Regulation) made under the Environmental Protection Act (EPA). The Regulation addresses land use zoning changes and requirements for submitting a Record of Site Condition (RSC) in support of a zoning change. The MOE standards provide prescribed remediation criteria depending on the land use, groundwater use, soil type and restoration depth.
On December 29, 2009, the MOE filed O. Reg. 511 / 09 amending the existing Regulation (O. Reg. 153 / 04). The changes are intended to implement the legislative reforms made to the EPA and the Ontario Water Recourses Act, as well as to update site condition standards to reflect advances in current science and to allow an efficient risk assessment approach for Brownfield sites.
Some of the changes to the Regulation are already in force; however most of the amendments do not take effect until July 1, 2011. Some of the key amendments to the Regulation that pertain to landowners include:
•Strengthened, less stringent and newly implemented soil, groundwater, and sediment standards.
• An extensive revision of the requirements for conducting Phase I and II Environmental Site Assessments.
O. Reg. 511 / 09 introduced the new Soil, Groundwater and Sediment Standards (dated July 27, 2009), which will come into full effect on July 1, 2011. Some compound specific criteria under the new standards have become more stringent while others have become less stringent. New parameters have also been added which were not included in the old standards. For example, specific criteria for Petroleum Hydrocarbon in groundwater were absent in the old standards; the new standards include them. This inclusion is important since Petroleum Hydrocarbon impacts to soil and groundwater is typically associated with leaking aboveground and underground heating oil storage tanks.
Another change is that the parameters associated with Petroleum Hydrocarbon in soil have become more stringent. These changes in the standards will inevitably add to the scope of work (and greater cost) to conduct environmental assessments compliant with the new Regulation and intended for use to file a Record of Site Condition.
All commercial and / or residential property owners should keep in mind the potential profound affects of the new MOE standards. The amendment to the new Regulation will not only affect future prospects, but may have an impact on any previous environmental work undertaken at sites not under the protection of a Record of Site Condition. For example, if a previous environmental soil and / or groundwater remediation has been undertaken at a property and the remediation level that has been attained does not meet the new requirements; the property may be considered contaminated. If the same property has a Record of Site Condition filed, the MOE will not force to have the new standards applied to that site.