Response to: ERO number 019…

Response to:
ERO number 019-0987
Notice type Regulation
Act Environmental Protection Act, R.S.O. 1990
Posted by Ministry of the Environment, Conservation and Parks
Notice stage Proposal
Proposal posted December 9, 2019
Comment period December 9, 2019 - January 13, 2020 (35 days)

Although there are likely some legitimate situations in which QPs may feel that it is unnecessary and too costly to justify conducting groundwater sampling, the proposal as presented may have some internal inconsistencies and issues which could render it difficult for ethical QPs to utilize, but which could open the door for abuse by unethical QPs or by QPs with insufficient knowledge to understand the intricacies of contaminant movement to groundwater.
The requirements and objectives for phase 2 site assessments with respect to soil have been derived as minimum requirements for QPs to identify locations and concentrations of contaminants of concern at a site. The opening paragraph of the proposal states that the proposal applies to sites where “there is no soil on, in or under the property and soil sampling completed does not meet the requirements and objectives of a phase two environmental site assessment with respect to soil, with some limitations and requirements.”. If the soil sampling completed on the property did not meet the requirements, which as noted are minimum requirements, then how could an ethical QP draw the conclusions that he/she is expected to make as per sections 3.3, 4.1, and 4.2 of the proposal? Except in some rare circumstances, this could be a logical impossibility. Also, if it is necessary in some situations to exclude the need for sampling groundwater, why would the Ministry allow the exclusion in situations where soil sampling was inadequate, but not in situations where soil sampling was adequate? I would also suggest that the proposal should clarify exactly what the “limitations and requirements” mentioned above are, as it is unclear as to exactly what is being referred to.
Section 3.3 of the proposal refers to VOCs meeting appropriate standards for the proposal to apply. However, VOCs tend to be highly mobile in many soil and bedrock types, and can readily move to groundwater. Even though they may have volatilized from the surface soils at time of sampling, they may have moved to groundwater and be retained in groundwater and bedrock near the groundwater if the time of soil sampling was such as to have allowed their disappearance from the soil. In addition, and as mentioned, if soil sampling didn’t meet the phase 2 requirements, then these mobile contaminants and their pathway to groundwater could easily have been missed. If this proposal is to go through, I suggest that it specifically exclude any contaminants that readily move to groundwater such as most VOCs, or, vice versa, that it apply only to named contaminants that are known to be immobile in soil.
Section 4.2 refers only to the intended use of the RSC property itself. It should also consider downgradient effects on adjacent properties that may have a more sensitive use or more sensitive conditions and on aquatic environments at more than 30 m distance.

Although it is understandable why some developers would like to avoid the additional costs of sampling groundwater when conditions appear to them to not justify sampling, this proposal could result in some significant risks to groundwater at some sites if its provisions were to be utilized by QPs who did not follow reasonable ethical principles or were not fully understanding of the complicated interactions with respect to contaminant movement in soils, bedrock and groundwater. It would appear that there may be some very specific conditions for which this proposal could legitimately apply, but they have not been sufficiently spelled out. If the pitfalls of vagueries and their consequences are to be avoided, then any change in regulations that allow QPs to not sample groundwater should more specifically detail the situations in which the exclusion is permitted. For example, this proposal could only be applied to sites where the soil has been removed and the only CoCs were non-mobile metals which the soil sampling had shown to occur only near the soil surface; that is, the soil near the bedrock or groundwater was below background concentrations (Table1).