Regulations and Compliance Requirements  
 
Brownfields Legislation was recently introduced in Ontario under the Brownfields Statute Law Amendment Act in 2001. The purpose of the Act is to encourage the revitalization of former industrial and commercial lands (“brownfields”) and address barriers to revitalization, including regulatory liability, planning and financing matters.

Affected Regulations under the Brownfields Act

• Environmental Protection Act (EPA) Part XV.2
• Ontario Water Resources Act (OWRA) – (O. Reg. 298/02)
• Planning Act (PA) 299/02
• Ontario’s Brownfields Legislation and Records of Site Condition Regulation (O. Reg. 153/04)

• Phase I ESAs can be performed by QPs with the following associations:
  • Professional engineers (P.Eng.)
  • Professional geoscientists (P.Geo.)
  • Chartered chemists
  • Professional agrologists
  • Applied science technicians
  • Certified engineering technicians
  • Architectural technicians
  • Phase II ESAs can only be performed by QPs with the following associations:
    • Professional engineers (P.Eng.)
    • Professional geoscientists (P.Geo.)
    • Chartered chemists
    • Professional agrologists
  • Risk Assessments have a different set of qualifying criteria for a QP.
    Education required is:
    • Bachelor’s degree in science (B.Sc.) or (B.ASc.)
    • Bachelor’s degree in engineering (B.Eng.)
    • Bachelor’s degree of applied technology from a post-secondary institution
    With required experience in:
    • The conduct or supervision of ESAs
    • The conduct, supervision or review of a Risk Assessment
    Alternatively, in any combination of both as follows:
    • QP with a doctoral degree in science or engineering from a university and 5 years experience;
    • QP with a masters degree in science or engineering and 7 years experience; and
    • QP without degrees (e.g. Ph.D. P.Eng. M.Sc. or M.Eng.), with 8 years environmental experience and over 2 years experience in the conduct or supervision of such an assessment of risk or in the technical or scientific review of an assessment of risk on behalf of a public authority.
  Qualified Persons are required to maintain insurance coverage with limits of no less than $1,000,000. This coverage must remain in effect until two years after the QP ceases to act as a QP. 
  
  Information on, Engaging Environmental Consultants is provided by Katherine van Rensburg, Gowlings
  
  
  Environmental Site Registry
  
  The Environmental Site Registry is a publicly accessible electronic registry that was created for the following purposes:
  • To allow parties to file RSCs
  • To ensure public access to information contained in the RSC and to other information that may be filed in accordance with the legislation (for example orders respecting property which can be filed by the MOE)
  The Environmental Site Registry is currently maintained by the MOE and has been operational since October 1, 2004. The Environmental Site Registry will provide an additional source of information concerning property to assist in due diligence activities. It should not however be regarded as the sole source of information. Note that the Registry contains a disclaimer in the following terms:
  
  

  MOE assumes no responsibility for errors or omissions in any of the information contained on this web site. MOE makes no representation or warranty of any kind whatsoever with respect to this web site. MOE specifically disclaims any express or implied warranties related to the use of this website and all content including, without limitation, warranties of non-infringement or fitness for any particular purpose.

  There is a further disclaimer with respect to the failure of the MOE to keep the web site up to date, for errors or omissions contained in the website or for damages arising out of the use or inability to use the website.
  
  Phase I ESA A Phase I Environmental Site Assessment (Phase I ESA) is a non-intrusive investigation of a property.
  • The requirements for a Phase I ESA are now prescribed by regulation. These requirements must be followed if the Phase I ESA is to be used as part of a RSC process.
  • The RSC requirements follow the Canadian Standards Association (CSA) Standard Z768, with an important exception. Denial of access to any part of a property is not permitted if the Phase I ESA is to meet regulatory requirements.
  • A Phase I ESA contains the following elements: a records review, a site visit, interviews, an evaluation of the information gathered, the preparation of a written report and submission of the report to the client.
  • The goal of a Phase I ESA is to determine whether there is evidence of actual or potential contamination in relation to the property.
  • The completion of a Phase I ESA is mandatory in all cases in which a RSC is filed.
  Further information is provided in, A Standard for Phase I ESAs: an Introduction to CSA Standard Z768, provided by Katherine van Rensburg, Gowlings.
  
  Phase II ESA

  A Phase II Environmental Site Assessment (Phase II ESA) is an intrusive investigation of a property
  
  

  • Phase II ESAs can entail sampling of building materials, subsurface investigations and sampling of soil, groundwater and surface water.
  • The requirements for a Phase II ESA are now prescribed by regulation. These requirements must be followed if the Phase II ESA is to be used as part of a RSC process.
  • The RSC requirements follow the Canadian Standards Association (CSA) Standard Z769.
  • A Phase II ESA contains the following elements: planning and conducting a site investigation, interpreting and evaluation information gathered, preparation of a written report and the submission of the written report to the client.
  • The scope of the Phase II ESA will depend upon the findings from the Phase I ESA. Generally, the areas that will be investigated intrusively will correspond with areas of concern identified in the Phase I ESA.
  • The completion of a Phase II ESA is mandatory in the following circumstances:
    • If the property is used or has ever been used, in whole or in part for an industrial use, or
    • If the property is used or has ever been used as: a garage, bulk liquid dispensing facility, gasoline outlet or for the operation of dry-cleaning equipment.
    • Exceptions to the above clauses if the property is used for: agricultural, community, institutional, parkland or residential purposes and has a RSC for such uses.
  • A Phase II ESA must be performed in all other cases unless the QP certifies that, as of the certification date, a Phase II ESA is not required by the Regulation for any part of the property and in the opinion of the QP is not necessary for any other reason to conduct it for any part of the property, and as of the certification date, in the QP’s opinion, there is no indication of any contaminants that are likely to interfere with any of the type of property uses identified in the Regulation.
  Further information is provided in, A Standard for Phase II ESAs: an Introduction to CSA Standard Z769, provided by Katherine van Rensburg, Gowlings.
  
  Risk Assessment 
  
  A Risk Assessment is the scientific approach to assessing the degree of ecological and health risks associated with a contaminated site.
  • The requirements of a Risk Assessment are now set out in O. Reg. 153/04.
  • It is possible to file a RSC using a Risk Assessment; however the additional requirement in the case of a Risk Assessment is its acceptance by the MOE.
  • Risk Assessments were formerly known as “Site Specific Risk Assessments” (SSRAs). Under previous Ontario Guidelines, the review and acceptance process of SSRAs was often slow, unpredictable and uncertain.
  • The new regulation prescribes standard forms for each stage of the risk assessment process.
  • In any case where the risk assessment assumes non-potable groundwater conditions, the local municipality and the upper tier municipality must be notified.
  The following are the components of a Risk Assessment:
  • Preparation and submission of a pre-submission form
  • Assessments of human health risk and of ecological risk
  • A written risk assessment report, following a mandatory report format that includes a description of the assessments of human health and ecological risk.
  Most risk assessments will take the form of a “standard risk assessment”.
  • Standard risk assessments must follow the procedural and substantive requirements of the regulation. The report must include the following as appendices:
    • Pre-submission form and all related documents;
    • Resumes for the QP and technical team leads;
    • List of documents relied on;
    • Summary of Phase I and Phase II ESAs and justification and assessment of Phase II sampling program;
    • All reports documenting further site investigations conducted to support the risk assessment;
    • A copy of the written notice to local/upper-tier municipalities where it is assumed that non-potable groundwater conditions exist;
    • Where engineering or hydrogeological controls are recommended, reports by QP that include detailed plans and specifications;
    • An appendix containing a certification by the QP in certain mandatory terms. In essence the QP is required to certify that the approach taken in the risk assessment was appropriate to evaluate human health and ecological risks, as to the necessity or otherwise for a risk management plan, and that in the circumstances, including the use of the property and any risk management measures recommended that the risk assessment, the contaminants of concern are unlikely to pose a human health or ecological risk greater than the level of risk that was intended in the development of the applicable full-depth site condition standard for those contaminants.
    The legislation provides time limits for the MOE to review Risk Assessments and the new regulation prescribes standard forms for each stage of the process:
    • There is now an affirmative statutory duty for the MOE to respond to a risk assessment according to specific time lines.
    • There is no deadline for the MOE’s response to a pre-submission form.
    • Once a risk assessment has been submitted, a Director of the MOE is required to give notice of his or her acceptance or refusal to accept the risk assessment.
    • The time for responding to the submission of a standard risk assessment is 16 weeks.
    • If the Director refuses to accept the risk assessment reasons must be given however there is no statutory right of appeal or review.
    • When a risk assessment is accepted, the MOE can issue a Certificate of Property Use (CPU)

    Certificate of Property Use (CPU)
    
    Once a CPU has been issued, it can require the owner to do the following:

    • To take certain actions to prevent, eliminate or ameliorate any adverse effect on the property, including the installation of equipment and the monitoring, recording and reporting of information.
    • To refrain from using the property for any use specified in the certificate or constructing any building specified in the certificate on the property.
    • To register notice of a CPU on the Title of the Property, if directed by an MOE Director.
    Amendments not yet proclaimed in force:
    • In amendments expected to be proclaimed in force in 2005, there will be a prohibition against the issuance of permits, licences, approvals or other instruments authorizing a use or construction that is prohibited by a CPU.
    Remember that breach of a CPU results in the loss of the RSC exemption from liability.
    
    Site Condition Standards  
    
    In the past remedial objectives for soil and groundwater were set out in the Guideline for Use at Contaminated Sites in Ontario (the “Guideline”). Now they are prescribed by regulation for soil, ground water and for sediments
    • There are three types of site conditions standards – full depth background, full depth generic and stratified site condition standards.
      
    • Site conditions standards are prescribed for different types of property uses – the most sensitive use is agricultural or other use, institutional or residential, and require the most stringent standards. For the less sensitive commercial/industrial uses the standards are less stringent.
      
    • The standards are set out in Tables 1-6 of the new regulation. For the most part the criteria follow those prescribed under the former Tables A-F of the Guideline.
      
    • The current tables are as follows:
      Table 1: Background Soil (formerly Table F), Sediment (from former Table E) and Water (New)
      Table 2: Full Depth, Potable (formerly Table A)
      Table 3: Full Depth, Non-Potable (formerly Table B)
      Tables 4 and 5: Stratified Potable and Non-Potable (formerly Tables C and D)
      Table 6: Soil Extract and Ground Water Standards (new, to determine if a site is a “shallow soil property”)
      
    • New standards are included for petroleum hydrocarbons in soil that follow the new Canada-wide standards, and will require more detailed laboratory analysis.
    • A stratified site condition means that the surface soil quality meets more stringent criteria than soils at depth. Under the new regulation, a RSC can be based on a stratified clean up without leading to a CPU or registration on title.
    The information provided under the Legal Framework was adapted from:
    • The Regulatory Regime – RSC Basics, by Katherine van Rensburg, Gowling Lafleur Henderson, 2004
      
    • Ontario’s Brownfields Legislation and Records of Site Condition Regulation (O. Reg. 153/04), a presentation by Chris Lompart, Ontario Ministry of Environment (MOE) at Niagara Brownfields Knowledge Workshop, October 27, 2004
      
    • The New Brownfields Law: What’s in it for Lenders?, by Katherine van Rensburg, Gowling Lafleur Henderson, 2004