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Is a site really clean? Can you trust a Record of Site Condition?

We keep finding examples of why the Ministry of the Environment had to tighten the obligations of Qualified Persons in Regulation 153/04, the regulation that governs contaminated sites. The regulation requires a Qualified Person to certify the highest known concentrations of contaminants on a site in each Record of Site Condition. We discovered this month that even well-known consulting firms have certified questionable RSCs. An RSC that contains “false or misleading” information or certification provides no protection to the property owner: see s. 168.7 of the Environmental Protection Act.At one site, for example, the consultant (QP) knew of chlorinated solvent contamination in deep groundwater. The wells were removed, during excavation of some contaminated soil, but the groundwater was never retested. On the basis of a verification sample showing that the soil met Table 3, the QP certified that the groundwater met Table 3.

This trick is clearly improper under regulation 153/04, after January 1, 2010. For RSCs prepared before that date, wouldn’t this make them contain “false or misleading information”? What do you think?

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