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The City of Toronto’s (the “City”) Infrastructure and Environment Committee (the “Committee”) adopted amendments to the existing Policy for Accepting Potentially Contaminated Lands to be Conveyed to the City under the Planning Act (the “Policy”), and recommended that they be approved by City Council at the May 5, 2021 Council Meeting.  However, rather than considering the proposed amendment (the “Updated Policy”), City Council referred the item to the Engineering and Construction Services (“ECS”) Chief Engineer for further consideration. While we patiently await the ECS comments, we can look at the Updated Policy as detailed in the City’s Staff Report and presented in Attachment 1.

Background

The Policy was first adopted by City Council on February 10, 2015.  The purpose of the Policy is to ensure that the City does not accept lands from applicants that present elevated risks to the environment, worker safety or public health.  The Policy contained environmental requirements which exceed Provincial laws and regulations, to protect the City from acquiring lands that have unacceptable liabilities associated with known or suspected environmental contamination. The Policy created a peer review process conducted by third-party qualified persons (“QPs”) as defined by O.Reg. 153/04 established under the Environmental Protection Act, and selected by the City.  The applicant bears the cost of this review process.

In November 2019, due to stakeholder criticism regarding the Policy’s lack of clarity, City Council requested that staff review potential amendments to the Policy and report back in Q4 of 2020.

The Updated Policy

The Updated Policy seeks to provide more certainty and clarity; expedite the peer review process; minimize the City’s liabilities related to accepting land; and continue to safeguard public health and the environment. However, the overarching objectives of the peer review process remain unchanged.

First, the Policy will be renamed the “Policy for Accepting Potentially Contaminated Lands to be Conveyed to the City as a Condition of a Development Application Approval”, to emphasize that the City may be authorized to require conveyance conditions under legislation other than the Planning Act, including the City of Toronto Act, 2006 and the Condominium Act, 1998.

The Updated Policy is proposed to include:

• Clarification of terminology and definitions, including 24 new definitions;

• Alignment of the stratified site condition standards with the Provincial legislation – these standards will apply to soil below a depth of 1.5m (subsurface soil), and are less stringent than the standards for surface soils;

• A risk assessment process – this will allow assessments for properties where it is not physically or economically feasible to remove all the contamination to determine whether the site-specific soil and groundwater standards can be developed to ensure the safety of the intended users;

• Strengthened procedural and notification requirements – the applicant and QPs will have elevated responsibilities to provide information to the City as it pertains to the conveyance of lands, as well as notifying City staff where it is likely that contamination has migrated onto adjacent City lands and poses a possible adverse effect; and

• Clarification of exemptions from the peer review process including:

1. Small parcel exemption – where the intended use is not changing to a more sensitive use. For example, residential land to be used as parkland or former industrial land to be used for road widening. The applicant will have to submit a rationale as to why they meet this exemption.

2. Dedication of small sized parks – where the lands were formally used for residential, institutional or park purposes; the areas are less than or equal to 100m²; or the areas are greater than 100m² but less than 1m in width. This was also an exemption in the former Policy.

3. Corner roundings exemption – where the lands conveyed for the purposes of a Right-of-Way corner rounding have an area less than or equal to 12.5m², provided they are not subject to a Record of Site Condition or a Certificate of Property Use.

This is a much-anticipated Policy update, and we hope that it will add more certainty and clarity to the City’s expectations and requirements for accepting potentially contaminated lands.

The Davies Howe LLP team would be happy to discuss the Updated Policy with you further.