October 10, 2005

Ontario's mandatory RSC filing rule now in effect

The mandatory filing of a record of site condition (RSC) under Ontario's Brownfields Statute Law Amendment Act, 2001 has come into effect as of October 1, 2005. The regulation requires property owners in Ontario to file a record of site condition (RSC) before a property's use is changed from industrial, commercial or community use to a more sensitive use, such as residential.

Where there is a restriction on changing a property's use, an RSC will have to be filed before a building permit can be issued for the construction of a new building. These restrictions ensure that properties are safe to be used for a new sensitive use before construction begins or the new use is established.

This builds on the framework and standards for voluntarily completing and filing an RSC, which came into force on October 1, 2004. This document is the key to knowing whether a site has been properly assessed and, if necessary, cleaned up. Before an RSC can be filed in the provincial Brownfields Environmental Site Registry, the property must have been properly assessed and shown to meet the soil and groundwater standards appropriate for the new use for the property.

Detailed requirements for filing an RSC are set out in Ontario Regulation 153/04. Generally, the regulation sets out:

*The requirements for conducting site assessments.

*The soil, groundwater and sediment standards that must be met. The standards are tied to the proposed property use (e.g., industrial, commercial, residential, parkland) and reflect different approaches to site cleanup (e.g., background, full depth, stratified).

*The contents of an RSC and other requirements for filing an RSC in the Brownfields Environmental Site Registry.

*The requirements associated with preparing a risk assessment and protocols for laboratory analyses.

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

*Interim qualification requirements for the person who certifies in the RSC that environmental site assessments have been completed properly and that the site meets the appropriate standards. (Over the next two years, the Ministry of Environment will develop a certification program including regulated qualifications, accountability mechanisms and registration for people who do the work associated with qualified persons.)

The brownfields legislation was enacted to provide general liability protection from future environmental cleanup orders for property owners who clean up their sites to an appropriate level. This protection is contingent upon the filing of an RSC in the Brownfields Environmental Site Registry. In providing such liability protection, the Act aims to remove a key barrier to brownfield redevelopment.

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