In a previous e-alert, we reported on proposed amendments to Ontario Regulation 153/04, Records of Site Condition – Part XV.1 of the Act, under the Environmental Protection Act (O. Reg. 153/04). The proposed amendments were published in October 2008, and were open for comment until February 2009. The Ministry of the Environment (MOE), after considering the comments received, filed an amending regulation (O. Reg. 511/09) to O. Reg. 153/04 on December 30, 2009; accompanying fact sheets and the soil and groundwater standards were published on January 6, 2010.

A small number of the amendments made to O. Reg. 153/04 (largely the administrative amendments) have been in force since December 30, 2009, the date of filing of the amending regulation. However, most of the amendments to O. Reg. 153/04 will come into force on either July 1, 2010, July 1, 2011, or the later of July 1, 2011 and the date certain further amendments to the Environmental Protection Act come into force. A large portion of the substantive amendments, such as changes to the soil and groundwater standards applicable for the filing of Records of Site Condition (RSCs), will come into force on July 1, 2011.

The following is a description of some of the significant amendments made to O. Reg. 153/04:

  • The introduction of strengthened soil and groundwater site condition standards, including updated standards for numerous contaminants and new standards for several contaminants (these strengthened standards will come into force on July 1, 2011).
  • The introduction of modified generic risk assessment, an alternative risk assessment process that will allow the use of an approved MOE model to modify generic site condition standards for the purpose of filing RSCs (most changes related to modified generic risk assessments will come into force on July 1, 2011).
  • The introduction of specific requirements for conducting Phase 1 and Phase 2 environmental site assessments. The new requirements for Phase 1 and Phase 2 environmental site assessments replace the previously used Phase 1 and Phase 2 standards published by the Canadian Standards Association (most changes related to these assessments will come into force on July 1, 2011 or at a later date).
  • The RSC submission process is changed to provide the Director with 30 business days to review the RSC filing and to provide: a) acknowledgement that the RSC was filed, b) notice that the RSC has not been completed in accordance with the regulations, or c) notice that the Director intends to conduct a technical review before the RSC can be filed (this change will come into force on July 1, 2011 or at a later date).

MOE publications indicate that the changes in soil and groundwater standards (or other changes to O. Reg. 153/04) will not impact existing RSCs. However, going forward, the new rules and standards will need to be met when the regulatory amendments come into effect. There are special transition rules for projects that will be underway but will not have reached the stage of RSC filing by July 1, 2011. For such projects, an owner can submit a notice to the MOE (with specified certifications) and receive an 18-month extension (until January 1, 2013) to file a RSC that meets the current soil, groundwater and sediment standards. In practice, however, the new standards will likely be used in commercial transactions prior to the date they are required to be used pursuant to the regulatory amendments.

A more detailed overview of the amendments to O. Reg. 153/04, with links to the new soil and groundwater standards and to documents outlining the process and model for modified generic risk assessments, is available on the Environmental Registry; EBR Registry Number 010-4642.