The following are Pinchin…

The following are Pinchin Ltd.’s comments/questions regarding the proposed amendment to Ontario Regulation 153/04:

• In the “Proposal details” section, it refers to QPs being able to exercise judgement as to whether groundwater testing is required 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”. The way this is worded implies that groundwater testing potentially does not need to be completed if there’s no soil on the site (e.g., a property where bedrock outcrops at the surface and there is no soil) or that there isn’t sufficient soil to fully characterize APECs. It would appear that this is not the intent of the amendment since one of the conditions in the amendment is that soil sampling is undertaken and another condition is that the soil sampling is sufficient to identify all site-related Contaminants of Potential Concern (COPCs). These conditions appear to contradict the basic premise quoted above, and it is assumed that there must be sufficient soil to sample at a site to apply the proposed amendment and that groundwater testing would still be required at a site where little or no soil is available for sampling to address all APECs regardless of whether all the other conditions are met. The MECP should provide clarification as to the situations when the proposed amendment could be applied.

• The “Proposal details” section also refers to the removal from the site of “all the soil down to bedrock”. It is not clear when this soil removal occurs. Does it occur before the RSC is filed or does it occur after the RSC is filed? If it’s the former, then what happens if the MECP rejects the use of this exemption after the RSC is filed and mandates groundwater testing? By this time, the soil has been removed and the redevelopment is likely underway, which is problematic in terms of the redevelopment, especially if groundwater impacts are in fact found at this stage. For flexibility and to avoid development delays and associated extra development costs, there should be a way of declaring up front at the time of RSC filing that the soil will be removed to bedrock. Otherwise, there will be an open hole in the ground after the soil is removed while waiting several months or more for the RSC to be acknowledged.

• One of the requirements for applying the proposed amendment is that VOCs must not exceed the Site Condition Standards in soil. If the Phase One ESA does not identify VOCs as COPCs, is soil sampling for VOCs still required?

• There is a note in the amendment documentation regarding factors to be considered when determining whether groundwater might have been impacted. How will the MECP evaluate this, as these factors could be subject to a wide variety of interpretations, or will the MECP simply accept the QP’s declaration? Will there be some sort of guidance on what the MECP will find acceptable when assessing potential groundwater impacts?