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Some of the previously unannounced Reg. 511/09 amendments to Ontario’s brownfields regulation, 153/04, seem to have unexpected effects. For example, wells for dewatering or for groundwater treatment may now require every property within 250 metres to use potable (not non-potable) cleanup standards. This is how it works:

Reg 903 defines a “test hole” as a well that,

(a)   is made to test or to obtain information in respect of ground water or an aquifer, and
(b)   is not used or intended for use as a source of water for agriculture or human consumption;

Reg 903 defines a “dewatering well” as a well that is not used or intended for use as a source of water for agriculture or human consumption and that is made,
(a)   to lower or control the level of ground water in the area of the well, or
(b)   to remove materials that may be in the ground water;
(a) covers the traditional definition of a dewatering well or a sump and (b) covers remedial extraction/injection wells.

Section 15(2) of Reg 511/09 changes Section 35(3)(a) of Reg 153/04 (when non-potable standards can be used) from when all properties within 100 m are on a municipal supply to 250 m and have no wells installed for the extraction of ground water. This change will come into effect July 1, 2011.

Section 15(1) of Reg. 511/09 changes the definition of a well in Section 35(1) of Reg 153/04 to

“well” means a hole made in the ground to locate or to obtain ground water and includes a spring around or in which works are made or equipment is installed for collection or transmission of water, but does not include such a hole intended to test or to obtain information in respect of ground water or an aquifer;
Putting these two regulations together suggests that a monitoring well is a test hole, as in Reg 903, but all dewatering wells/remedial wells are “wells”, as in Reg 903, because they are operated to “obtain ground water”. Section 15(2) is not restricted to wells re: the extraction of ground water “for use as a source of potable/agricultural water”.

Thus, the presence of a dewatering/remedial well at what is now a Table 3 site will trigger Table 2 over a 250 m radius. Consider the office towers in Toronto with multi-level underground parking. Typically, these require dewatering wells. Under Section 15(2), won’t their neighbourhoods become Table 2 areas? Similarly, won’t 250 m radius “Table 2 neighbourhoods” appear around present-day Table 3 sites with remedial wells?

If this is the case, legal quagmires could result. Suppose Company A has a dewatering well for their elevator shaft. Can Company B next door sue them for increasing B’s remedial costs because A forces Table 2 on B by operating that well or does B have to accept Table 2 resulting from the actions of a third party (i.e., like being forced to use Table 1 as the result of a decision by a conservation authority)? What if B has municipal consent to apply Table 3 and starts remediating but then A installs an elevator shaft with a dewatering well? What about dewatering wells that are only in place for construction for a few weeks or months? If A needs construction dewatering wells to install the elevator shaft but doesn’t need to put a permanent dewatering well in it, is B’s site Table 2 during construction of the elevator shaft and then Table 3 afterwards? If so, can B simply remediate to Table 3 or do they have to wait until A is finished construction? There is also the possibility of honest mistakes. Suppose A did a Phase II and the driller filed a Well Record for test holes (monitoring wells). Later, A used some of them as remedial extraction wells but it was a small system that didn’t need a PTTW. B could run a search of PTTW and Well Records and not find out that A was running extraction wells (although records of sewer discharge agreements might help in this case).

Thank you very much to Stephen Hodgson for pointing out this wrinkle in the regulation. We expect the MOE to fix this problem long before July 1, 2011 arrives.

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