O. Reg. 214/21: RECORDS OF SITE CONDITION - PART XV.1 OF THE ACT

 

ontario regulation 214/21

made under the

Environmental Protection Act

Made: March 18, 2021
Filed: March 19, 2021
Published on e-Laws: March 19, 2021
Printed in The Ontario Gazette: April 3, 2021

Amending O. Reg. 153/04

(RECORDS OF SITE CONDITION - PART XV.1 OF THE ACT)

1. Section 9 of Ontario Regulation 153/04 is amended by adding the following subsection:

(2) If a record of site condition is filed in respect of a phase two property that meets the criteria set out in subsection 6 (2) of Schedule E, the Director shall ensure that users of the Registry are notified of the following:

1. That the exemption in subsection 6 (2) of Schedule E was relied upon in filing the record of site condition.

2. That, as part of the phase two environmental site assessment for the property, no confirmatory sampling and analysis of the soil, sediment and ground water has been undertaken to support the certifications made by the qualified person in the record of site condition.

2. Section 16 of the Regulation is amended by adding the following subsection:

(3) Paragraph 6 of subsection 168.4 (2) of the Act does not apply in respect of a phase two property if the criteria set out in subsection 6 (2) of Schedule E to this Regulation are met.

3. Section 17 of the Regulation is amended by adding the following subsection:

(5) If the criteria set out in subsection 6 (2) of Schedule E are met, the certification date in respect of the phase two property is the day on which the qualified person forms the conclusion that the certifications made in the record of site condition are true.

4. Section 6 of Schedule E to the Regulation is revoked and the following substituted:

Sampling and analysis of ground water

6. (1) The qualified person shall, in any of the following circumstances, ensure that the site investigation includes investigation, sampling and analysis of ground water on, in or under the phase two property in accordance with the requirements of this Schedule for the purpose of ensuring the objectives specified in paragraphs 2, 3 and 4 of section 5 of this Schedule in respect of ground water are achieved:

1. The phase two property is an enhanced investigation property.

2. The qualified person is of the opinion that it is necessary to conduct the investigation, sampling and analysis of ground water to make the required certifications in a record of site condition, to comply with the requirements of Part VIII of the regulation and this Schedule and to achieve the general and specific objectives of a phase two environmental site assessment.

3. Subject to subsection (2), there is insufficient soil on, in or under the phase two property to investigate, sample and analyse the concentration of contaminants in the soil in a manner that complies with the requirements of this Schedule and achieves the general and specific objectives of a phase two environmental site assessment.

(2) Paragraph 3 of subsection (1) does not apply in respect of a phase two property if the following criteria are met:

1. The phase two property does not include land that is within 30 metres of a water body.

2. The phase two property, and all other properties located, in whole or in part, within 250 metres of the boundaries of the property, are supplied by a municipal drinking water system, as defined in the Safe Drinking Water Act, 2002.

3. The phase two property is not located in an area designated in a municipal official plan as a well-head protection area or other designation identified by the municipality for the protection of ground water.

4. The phase two property, or one of the properties in the phase one study area, does not have a well used or intended for use as a source of water for human consumption or agriculture.

5. The owner of the phase two property has not submitted or does not intend to submit a risk assessment under section 168.5 of the Act.

6. As part of the phase one environmental site assessment, the qualified person has investigated and assessed the potentially contaminating activities in the phase one study area and confirmed that there are no potentially contaminating activities or other sources of contaminants in the phase one study area that could result in an area of potential environmental concern at the phase two property due to contamination of ground water.

7. As part of the phase two environmental site assessment,

i. sufficient investigation, sampling and analysis of the soil was undertaken to identify all contaminants of concern,

ii. the qualified person, as part of the investigation and having regard to section 21 of this Schedule, used all reasonable efforts to determine the maximum concentration of contaminants in the soil on, in or under the phase two property,

iii. if a contaminant of potential concern identified during the phase one environmental site assessment included a volatile organic compound or petroleum hydrocarbons F1, the investigation included the sampling and analysis of the soil for that contaminant in accordance with the requirements of this Schedule and the investigation found no exceedance of any of the applicable site condition standard for that contaminant, and

iv. the soil sampled and analysed that exceeded an applicable site condition standard was not in contact with the water table.

8. During the site investigation and any excavation of the soil at the phase two property, no evidence of free product was observed on, in or under the property.

9. The qualified person is satisfied that contaminants have not migrated to the ground water on, in or under the phase two property, based on the phase one environmental site assessment, the phase one conceptual site model, the investigation, sampling and analysis of contaminants in soil undertaken as part of the phase two environmental site assessment, the phase two conceptual site model and any other supporting information and rationale documented by the qualified person in the phase two environmental site assessment report.

10. The qualified person is satisfied that it is not necessary to undertake the investigation, sampling and analysis of ground water as part of the phase two environmental site assessment for the qualified person to conclude that the applicable site condition standards are met on, in or under the phase two property and to make the required certifications to submit for filing a record of site condition in respect of the property.

5. Section 7 of Schedule E to the Regulation is amended by adding the following subsection:

(6) This section does not apply in respect of a phase two property if the criteria set out in subsection 6 (2) of this Schedule are met.

6. Subsection 9 (1) of Schedule E to the Regulation is amended by striking out “Where” at the beginning of the portion before paragraph 1 and substituting “If the site investigation includes investigation, sampling and analysis of ground water and”.

7. Subsection 22 (1) of Schedule E to the Regulation is amended by adding “If the site investigation includes investigation, sampling and analysis of ground water” at the beginning of the portion before clause (a).

8. Subsection 25 (1) of Schedule E to the Regulation is amended by adding “If the site investigation includes investigation, sampling and analysis of ground water” at the beginning.

9. Section 39 of Schedule E to the Regulation is amended by adding the following subsection:

(2) This section does not apply in respect of a phase two property if the criteria set out in subsection 6 (2) of this Schedule are met.

10. Section 40 of Schedule E to the Regulation is amended by adding the following subsection:

(2) This section does not apply in respect of a phase two property if the criteria set out in subsection 6 (2) of this Schedule are met.

11. Section 43 of Schedule E to the Regulation is amended by adding the following subsections:

(3) If the phase two property meets the criteria set out in subsection 6 (2) of this Schedule and that provision is being relied upon to exempt the property from the requirement to investigate, sample and analyse ground water under paragraph 3 of subsection 6 (1) of this Schedule, the qualified person shall include in the phase two conceptual site model of the phase two property a narrative description of the rationale for concluding that the investigation, sampling and analysis of ground water are unnecessary in order to conclude that the applicable site condition standards are met on, in or under the phase two property and to make the required certifications to submit for filing a record of site condition in respect of the property.

(4) The qualified person shall include, for the purposes of the narrative description mentioned in subsection (3), a discussion of how the following factors and any other evidence were considered:

1. The types of potentially contaminating activities and sources of contaminants within the phase one study area.

2. The soil type and nature of the soil, such as effective porosity, grain size and permeability.

3. The nature of the bedrock, including primary and secondary porosity.

4. The approximate depth to the water table.

5. The approximate depth from the soil surface to bedrock before any excavation of soil from the phase two property.

6. The amount of soil removed from the phase two property and, of the soil that was removed, the amount that was exceeding the applicable site condition standards.

7. The pH value of the soil.

8. Having regard for the geochemical properties of contaminants of concern, the potential for those contaminants to leach from soil to ground water.

9. Any leachate testing results.

10. Any evidence that the concentration of contaminants sampled and analysed decreases as the depth of the soil increases.

11. Any indication of whether the excavation of soil at the phase two property went below the approximate depth of the highest water table.

12. Report Section 6 (Review and Evaluation), Sub-Heading (x) (Phase Two Conceptual Site Model) of Table 1 of Schedule E to the Regulation is amended by adding the following paragraph:

9. If the exemption in subsection 6 (2) of this Schedule is being relied upon, provide a narrative description in accordance with subsections 43 (3) and (4) of this Schedule.

Commencement

13. This Regulation comes into force on the day it is filed.