The Ontario Provincial Policy Statement (PPS)has recently changed how it refers to contaminated sites. The PPS is the official expression of the provincial government’s policies on land use planning. It applies province-wide and “provides clear policy direction on land use planning to promote strong communities, a strong economy, and a clean and healthy environment.” What effect will the new wording have?
Now that Section 3.2.2 of the Provincial Policy Statement has been amended, it says:
Sites with contaminants in land or water shall be assessed and remediated as necessary prior to any activity on the site associated with the proposed use such that there will be no adverse effects.
The wording in italics used to say “contaminated sites”. What is the significance of the change to the even less clear term “sites with contaminants in land or water”? It is a basic principle of statutory interpretation that a change in wording is intended to convey a change in meaning.
“Contaminant” is defined very broadly in the Environmental Protection Act, s.1:
“contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect
This definition of “contaminant” can cover almost anything, as illustrated by its application to a piece of flying rock in R. v. Castonguay. And the new definition does not tie the word “contaminant” to any particular level of contaminant, such as an exceedence of applicable generic criteria.
Still, the most plausible interpretation of the new PPS wording is that it calls for more assessment of environmental and health risks at sites that exceed Ministry of the Environment and Climate Change generic criteria in soil or groundwater, even if a Record of Site Condition is not mandatory under section 168.3.1 of the Environmental Protection Act.
We will have to see if this is how municipalities and the Ontario Municipal Board apply the revised section 3.2.2.