This article was originally published in Blakes Bulletin on Environmental Law - October 2004
Ontario’s Brownfields program took another step forward recently with the finalization of a regulation that will codify a substantial portion of the province’s contaminated site clean-up process. Regulation 153/04 was issued under the Environmental Protection Act (EPA) and, for the most part, will take effect on October 1 of this year, along with the relevant sections of the EPA that were enacted in November 2001 as part of the Brownfields Statute Law Amendment Act (Brownfields Act).
The regulation has been in the works for almost two years and represents the most challenging part in the implementation of the Brownfields Act. Entitled "Records of Site Condition" (RSC), the regulation stipulates the form and content of a document that has seen somewhat limited use over a period of about eight years as part of Ontario’s "Contaminated Sites Clean-up Guidelines". The RSC is used to document the assessment and remedial work conducted at a contaminated site and permits the registration of such activities with Ontario’s environmental authority, the Ministry of the Environment. A key aspect of an RSC is the certification of site conditions and other information that must be sworn to by the principal environmental professional involved in the site assessment and remedial work and the site owner.
The EPA and RSC regulation will also provide for the establishment of an "Environmental Site Registry" where RSCs will be filed and made available to the public. The regulation contemplates that a registered RSC may be relied upon by interested third parties, although the registry will advise those who visit it to also consider conducting their own due diligence with respect to the condition of the property.
The use and registering of RSCs will be driven by a mandatory requirement to do so, which will generally only apply when a change occurs from industrial or commercial land use to a different land use, such as residential. RSCs will also be attractive to property owners who wish to obtain a limited degree of immunity from government remedial orders. Such immunity will be granted to those past owners who register an RSC with the Ministry of the Environment in accordance with the Act and the new RSC regulation. This immunity will be made available in October to all owners who file a duly executed RSC in compliance with both the new regulation and the current Contaminated Sites Clean-up Guidelines. The mandatory RSC filing requirements of the EPA and the regulation will not take effect for another year or so.
The RSC regulation includes numerous detailed provisions governing Phase I and II environmental site assessments and risk assessments. It also incorporates a number of technical documents that contain detailed soil and groundwater remediation criteria and laboratory analytical protocols.
Finally, Ontario is nearing full implementation of a promised new regime for standardizing environmental assessment and remedial work and rewarding those site owners who invest in Brownfield clean-ups with limited future environmental liability. However, due to the complexity of the new legislation and its limitations in some areas, informed caution is required for those who intend to take advantage of its promised benefits.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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