June 21, 2004

Brownfields RSC rule removes key barrier to redevelopment

A new brownfields regulation (153/04) relating to the filing of a record of site condition (RSC) under Ontario's Environmental Protection Act will remove a key barrier to redeveloping brownfields by resolving the previous lack of clarity regarding brownfield property owners' environmental liability. Regulation 153/04 brings into effect provisions of the Brownfields Statute Law Amendment Act, 2001 providing property owners general protection from future environmental cleanup orders after they have appropriately cleaned up a site. The regulation was published in the Ontario Gazette on June 19, 2004 and will come into effect on October 1, 2004.

Under the act, property owners seeking protection from environmental cleanup orders must file an RSC in the Environmental Site Registry. Before an RSC may be filed, the property must have been properly assessed and shown to meet the soil and groundwater standards appropriate for the use, such as residential, that is being proposed to take place on the property.

The regulation sets out:

* Requirements for conducting site assessments.

* The soil and groundwater standards that must be met. The standards are tied to the proposed property use (e.g., industrial, commercial, residential, parkland) and standards reflect different approaches to site cleanup (e.g., background, full-depth, stratified). Two technical documents are referenced: "Soil, Groundwater and Sediment Standards for Use under part XV.1 of the Environmental Protection Act" and "Protocol for Analytical Methods Used in the Assessment of Properties under part XV.1 of the Environmental Protection Act."

* The contents of a record of site condition and other requirements for filing an RSC, including who can file one.

* The requirements associated with preparing a risk assessment.

* The conditions under which a past owner may receive immunity from environmental orders.

* The property use changes that require the filing of an RSC.

In addition, the regulation sets out requirements associated with qualified persons filing RSCs and conducting environmental site assessments. This isssue was the subject of the majority of the 459 submissions received after the draft regulation was posted for comment on the Environmental Bill of Rights registry in February 2003. In response to the comments, the final regulation reflects a short-term approach, with a longer-term approach being developed by the Ministry of Environment.

For the short term, the regulation will recognize members of a broad range of professions as qualified persons. The list of qualified persons has been expanded to include other designations with associated disciplinary mechanisms. The longer-term approach will provide for the specific assessment of qualifications and regulated accountability mechanisms. Also in response to stakeholder comments, the requirements associated with a qualified person include professional liability insurance.

The technical components of the brownfields legislation and the regulation, including RSCs, are based on the Ministry of Environment's existing Guideline for Use at Contaminated Sites in Ontario, which has been used since 1996.

The regulation will be implemented in two phases. The framework for completing and filing an RSC will come into force on October 1, 2004. Filing an RSC to the Environmental Site Registry will be voluntary until filing becomes mandatory in 2005.

"This regulation brings us closer to our goal of creating a progressive brownfields redevelopment program for Ontario," said Environment Minister Leona Dombrowsky.

The final decision on the regulation, including comments and the Ministry of Environment's response, may be found on the Environmental Bill of Rights Registry, www.ene.gov.on.ca, reference No RA03E0002.

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