Ontario Brownfields Regulations Published—Phase II

The long awaited draft regulations that will give legal force to Ontario’s contaminated site remediation process and, with it, liability protections for landowners, were recently published on the EBR Registry.

These regulations, when in force, will complete the regime provided for by the 2001 Brownfields Amendments to the Environmental Protection Act (EPA).

In December 2002, the Ontario Government proclaimed in force the lender, municipality and trustee protections reported on in this Bulletin in August 2002. Then in February the government posted draft regulations which will implement the more ambitious clean-up and liability protections affecting landowners and those involved in environmental site assessments and remediation.

The central part of the clean-up process is the preparation and filing of a document entitled Record of Site Condition ("RSC"). An RSC is completed by both a property owner and a so-called "qualified person", experienced in environmental site assessment and remediation. The draft regulations specifically define such persons in order to ensure that they have minimum qualifications. The form of the RSC is also prescribed, which is similar to the guideline document already familiar to brownfield landowners and environmental consultants. However, there have been a number of changes to the document, such as the catch-all statements that allowed third parties to rely upon the RSC.

The new RSC will specifically state that the qualified person makes "no express or implied warranties or guarantees", although he or she will acknowledge that the RSC will be filed with a new Environmental Site Registry that is open to the public and that to the "best of my knowledge" the statements in the RSC are true.

Once in effect, the amendments to the EPA will require that an RSC be completed and filed with the Environmental Site Registry, prior to a change in property use from commercial or industrial to residential, parkland, institutional and agricultural. This mandatory filing provision is also linked to the issuance of municipal building permits. The draft regulations prescribe changes of use that are both caught and exempt from the mandatory-filing requirement. For example, a change of use from a railway line to a recreational trail, subject to a few qualifications, is exempt. A change from a non-industrial commercial use or "community use" (public gathering places such as railway stations and airports) are exempt, unless an industrial use or motor vehicle servicing, bulk liquid dispensing or dry cleaning took place on the property within the last 10 years.

Certificates of "Property Use" will replace the ill-named certificates of "Prohibition". Their registration on title to an RSC certified "clean" property will be required when the results of a "Site Specific Risk Assessment" necessitate risk management measures (e.g., restrictions on property use). The amended EPA requires that such certificates be provided to the municipal clerk and the chief building official of a local municipality. It also prohibits the issuance of permits, licences and other prescribed authorizations, which the draft regulation spells out as building permits and change of use permits.

The draft regulation also prescribes standards for the carrying-out of Phase I and II environmental site assessments, incorporating the current Canadian Standards Association standards for these assessments. The applicable clean-up or site condition standards will be the same as those already in use in Ontario, being the soil and groundwater criteria contained in the 1996 Guideline for Use at Contaminated Sites in Ontario. The Guideline will be re-named the "Soil, Ground Water and Sediment Standards".

All in all, the government appears to be on the right track and those involved in dealing with brownfield sites eagerly await the finalization of the regulations and the full implementation of the EPA’s environmental liability protections.