O.Reg. 153/04: Some Further Reflections

Our previous updates regarding some of the “technical issues” relating to the impending changes to Ontario Regulation (O.Reg.) 153/04 have focused on the “nuts and bolts” of field-preservation of soil samples for Volatile Organic Compound (VOC) analysis. Specifically, we have looked at VOC preservation using methanol or aqueous sodium bisulphate (consistent with United States Environmental Protection Agency (USEPA) Method 5035) and how this may affect future transactions in Ontario.

Let’s think about this from a practical standpoint. We know that under the Environmental Protection Act regulation (EPA), if a record of site condition (RSC) is filed in the Registry, “no order shall be issued” to “the person who filed or who submitted for filing the record of site condition or a subsequent owner of the property.” 

So does this mean if you have an RSC you don’t need to be concerned with the regulatory changes?  Maybe not.  Let’s now bring USEPA Method 5035 (Method 5035) back into the mix. Method 5035 was developed in 1996 and published in 1997.  The USEPA has previously stated that the losses of the actual insitu concentration of VOCs by bulk sampling methods were up to three orders of magnitude.  This said, would you still have a level of comfort with an RSC that was developed prior to Method 5035?

Starting in July of this year, the MOE may require soil sampling Method 5035.  So it’s a fair assumption that using this new method may yield VOC concentrations (in soil) orders of magnitude higher than the traditional bulk methods. Don’t forget, many VOCs (under the amended regulation) have more stringent standards. 

In the near future, you may find that you are taking ownership of a site with an RSC. Would this property (with an RSC) based on the old bulk soil sampling methods be “clean” under the new O.Reg. 511/09 standards if re-tested after July 1, 2011 using Method 5035?  Some additional considerations might be:

1)    What additional investigation would be appropriate?

2)    Is there an impetus for looking? (e.g., liability protection, conducting your due diligence)

3)    Would there be a need for remediation?

4)    Could there be renewed concern regarding vapour intrusion? (see our recent article on vapour intrusion)

Furthermore, it is the MOE’s position that you should conduct your own due diligence (rather than relying on seller provided information).

In the late 1990s The Dragun Corporation began conducting investigations in other jurisdictions using Method 5035 and we can tell you first hand that it does impact site characterization and subsequent decisions.  We say all this so you might consider your various environmental and business decisions going forward.  As always, we advise you to discuss these types of issues with your legal counsel as well. 

If you have specific technical questions, contact Christopher Paré (cpare@dragun.com) or Clifford Lawton (clawton@dragun.com) at 519-979-7300.

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