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Proposed Amendments to O. Reg. 153/04

As a result of the development of the provincial Excess Soil Management Policy, amendments have been proposed for O. Reg. 153/04 (Made under Part XV.1 of the Environmental Protection Act, R.S.O. 1990, c. E.19). The policy aims to dissolve any confusion or concerns surrounding the reuse of soil or fill materials originating from an excavation site. The framework for the policy, which includes a number of actions to be taken based on key goals and principles, was finalized in December 2016 following review of input from partner ministries and industry. The regulatory proposal is anticipated to be finalized before the close of 2017, with open commentary welcomed until June 23, 2017.

What changes are proposed for O. Reg. 153/04?

The following list presents a summary of the proposed amendments, with general comments from JFM Environmental Limited presented in blue italics:

  • Provisions related to bringing soil to an RSC property would be amended to align with the proposed Excess Soil Reuse Regulation.
  • Stockpile sampling requirements will be amended per the stockpile sampling requirements in the proposed Excess Soil Reuse Regulation.
  • A new requirement will be added to require sampling outside of APECs for industrial properties in a manner consistent with the proposed Excess Soil Reuse Regulation.
  • As part of having a risk assessment accepted for a property, the Director may provide relief from delineation requirements to applicable site condition standards based on the following specified conditions;
    • all contaminants of concern are identified;
    • maximum concentrations are identified for all contaminants of concern;
    • all reasonable efforts to delineate to the applicable site condition standards were undertaken;
    • the property is appropriately characterized;
    • additional delineation will not lead to an improved understanding of the distribution of contaminants; and,
    • there are practical or negative environmental reasons that are impediments to further delineation to the applicable site condition standards.
  • O. Reg. 153/04 would be amended such that, if a Qualified Person determines that an applicable site condition standard is exceeded at a property solely because a substance has been used for the purpose of traffic and pedestrian safety under conditions of snow/ice, the standard is deemed not to be exceeded.
    • This exemption previously only applied to contamination coming from deicing applications on roadways and highways, this update will extend the exemption to the use of deicing compounds on private properties. Examples of contaminants that this exemption could apply to include; sodium, sodium adsorption ratio, chloride, and electrical conductivity.

  • A provision would be added to the RSC regulation to exempt a change in the use of property where:Commercial property with the upper floors being used for residential purposes.
    • the change in property use is from commercial (other than a use described in clause (b) of subsection 32 (1) of O. Reg. 153/04) to residential
    • the change in property use is to take place within an existing building no greater than four storeys in height and will be limited to the portion of the building above the first storey above grade (i.e. the ground floor remains commercial);
    • the ground floor and any below grade structures are not being redeveloped or replaced, and the footprint of the building will remain the same after the change in property use.
    • This new exemption will allow applicable commercial properties to convert their upper floors to residential purposes without filing a Record of Site Condition.

      A Phase I ESA should be completed for due diligence as part of a property transaction.

  • It is proposed that O. Reg. 153/04 be amended such that an RSC would be required prior to converting the ground floor from commercial property use to residential of a building whose owner had earlier availed him or herself of the exemption outlined above, and prior to rebuilding a new mixed use building at such a property.
  • O. Reg. 153/04 would be amended such that the definition of “road” does not include a road temporarily constructed and that is recognized as temporary in a planning or development approval (i.e. the temporary road would retain the past use, similar to vacant land, until changed to another use).
    • Temporary roads would no longer change the usage of a property, such that a temporary road would no longer require a Record of Site Condition before being converted to a residential land use (provided they were not originally used for a less sensitive land use).
  • O. Reg. 153/04 would be amended such that an applicable site condition standard is deemed not to have been exceeded if a Qualified Person determines that the standard is exceeded at a property solely because the substance is associated with drinking water treatment.
    • This exemption removes the applicable site condition standard for contaminants that are present due to drinking water treatment (e.g. contamination resulting from a water main break). Example parameters could include chloroform, bromodichloromethane, dibromochloromethane, and bromoform.
  • O. Reg. 153/04 would be amended to indicate that an applicable site condition standard is deemed not to have been exceeded if a Qualified Person demonstrates that the standard is exceeded at the property solely because of the deposition of fill prior to environmental site assessments and that the concentration of a substance in the fill does not exceed naturally occurring concentrations of that substance found within the municipality or an adjacent municipality.
  • Subsection 1 (3) of O. Reg. 153/04 would be amended to replace “day-care centre” with “child care centre”, and subsection 1 (1) would be amended to add the term “child care centre”; that term would be defined as it is defined in the Child Care and Early Years Act, 2014.
  • O. Reg. 153/04 would be amended to remove buildings used for indoor gatherings of people for religious purposes from “community use” and add them to the definition of “institutional use”.
    • Churches may no longer require a Record of Site Condition to be converted into a residential land use.

The complete list of changes can be found in the document entitled “Proposed Excess Soil Regulatory Package – New Proposed Regulation and Amendments to Existing Regulations” which can be found through the following link: here.

Additionally, the Rationale Document for Reuse of Excess Soil at Receiving Sites can be downloaded here and the Final Excess Soil Management Policy Framework, 2016, can be downloaded here.

A summary of the proposed policy can be found on the Environmental Registry page and is open for comments until June 23, 2017.

Please let us know if you have any concerns or questions relating to the proposed changes mentioned here. We would be happy to discuss the implications of these changes with you for your ongoing and upcoming projects.

 


The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk. The information and materials presented on the Site are provided for information purposes only and do not constitute legal or professional advice. The information is provided “as is”, without any warranty, express or implied.

Phase I Environmental Site Assessment

Purpose

Property owners, purchasers, lenders and tenants may face unforeseen liabilities when dealing with properties for which the environmental history is unknown. These liabilities arise from litigation associated with contamination, restrictions on development, loss of land value (due to contamination/perceived contamination), and / or government initiated orders. The information from a Phase I Environmental Site Assessment (ESA) can be used by property owners, tenants, purchasers, and lenders to make informed decisions.
 
The purpose of a Phase I ESA is to identify actual and potential Site contamination through historical research, interviews, and observations made during a walk-through of the property and surrounding area. The Phase I ESA is a qualitative assessment, which may be used to structure further intrusive investigation, if warranted (ie. a Phase II ESA). A Phase I ESA can be used to identify existing and historical Potentially Contaminating Activities (PCAs) and their associated Potential Contaminants of Concern (PCOCs). PCAs are activities that may lead to adverse impacts (i.e. contamination) to the soil, groundwater, and sediment regimes, due to the nature of the activities, and through accidental spills, leaks, and mishandling of materials containing PCOCs.  PCAs may be associated with on-site Areas of Potential Environmental Concern (APECs) (i.e. represent an area where actual or potential contamination exists).  The existence of an APEC is subject to interpretation by qualified professionals and is dependent on a number of factors which may include the nature of the PCA, scale of the PCA, and its relative location to the property with consideration to distance, topography, and hydrogeology.
 
In Ontario there are two main standards under which Phase I ESAs are conducted and evaluated. The first is the Canadian Standards Association (CSA) document Z768-01 dated November 2001 and reaffirmed in 2012.  The second is Ontario Regulation 153/04, made under Part XV.1 of the Environmental Protection Act. The specific standard to which the Phase I ESA is evaluated will depend on the client’s individual needs and intentions.
 

Process

Site Visit

A Phase I ESA is strictly qualitative in nature and does not include intrusive sample collection and analysis. It will be necessary for a representative from JFM Environmental Limited (JMFEL) to access the entirety of the property, including any buildings that may be present on-site. A site representative may be required to accompany JFMEL during the visit to answer questions pertaining to historical usage of the property and features that may be observed. JFMEL personnel will take photos and notes throughout site reconnaissance to be used as references in preparing the Phase I ESA report.
 
Research

JFMEL will obtain and review historical information that is readily available and pertains to the site’s environmental history (ie. through public and institutional libraries, online maps and databases, client supplied documentation, etc.). Documents reviewed include; historical aerial photographs, fire insurance plans, topographic maps, and municipal street directories. The reviewed documents are used to establish the historical usage of the site and surrounding area. Interviews with site representatives and other individuals with knowledge of past and present usage of the site will be conducted to further develop the history of the site and surrounding area.
 
As part of the Phase I ESA process information requests regarding the subject property are submitted to the Ministry of the Environment and Climate Change, the local / regional municipality, and the Technical Standards and Safety Authority. The requests are focused on identifying; environmental concerns, violations, orders, approvals, and investigations; spill records; waste generator and receiver records; records of tanks, and landfills; and, other records relevant towards the completion of the Phase I ESA.
 
Report

Following completion of the site visit and records review, the information will be assessed and compiled into a Phase I Environmental Site Assessment Report. The reports are structured around the standards used, and include an executive summary which presents the interpretation of the findings and relevant conclusions and recommendations.
 
If you would like more information please feel free to contact us or fill out a no obligation consultation form.
 
Regards,
 
 
The JFMEL Team


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