Environmental due diligence is a broad idea that relates to the acceptable standard of care for tasks completed to reduce liability and risk. For environmental site owners, this requires adherence to applicable regulations. Owners must also ensure that reasonable steps are taken to prevent any environmental issues on the property.
In Canada, environmental due diligence is governed at both a federal and provincial level. Some of the federal acts which determine environmental compliance include the following:
Additionally, each province employs specific environmental acts. In Ontario, these acts include the following:
There are also many other acts more specific to certain industries, such as forestry, fisheries, etc. Numerous regulations provide direction in how to operate within each individual act.
Due diligence in Ontario centres around two precise requirements:
The first requirement, Ontario Regulation 153/04 (O. Reg. 153), offers clear direction to prevent impacts from moving beyond the borders of your site. This process begins with a Phase 1 ESA, which reviews the current and historical activities at your site to determine if there are areas of potential environmental concern (APEC). If APECs are identified, a Phase 2 ESA is then conducted to determine if there is contamination present. Once your property meets certain criteria, a Record of Site Condition (RSC) can be filed through the Ministry of the Environment, Conservation and Parks (MECP). RSCs are used to document and support assessment and remedial work prior to development/redevelopment of a site.
The second requirement of due diligence in Ontario is also linked to O. Reg. 153/04. If your site has impacts that could potentially migrate through groundwater, a clean-up may be necessary to bring the property into compliance with allowable limits (O. Reg. 153/04). This may also involve a risk assessment if the generic values for chemical concentrations in the O. Reg. 153 tables are not achievable for your site. Read our Guide to O. Reg. 153/04.
If activities posing environmental risk are carried out on your site, you must ensure that an environmental management strategy is put in place and regularly monitored. This strategy should be developed in collaboration with an environmental consultant who can advise you on appropriate acts and regulations, making certain that your plan is best suited to your goals and the specific needs of your site.
The AEL team can help you to better understand what due diligence looks like for your distinct property. This information is critical to liability protection. From walking you through the initial regulations to formulating an individualized plan, our team of experts is always ready to assist you.
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