Amendments to parts of the Ontario Environmental Protection Act and Ontario Water Resources Act that govern brownfield properties and Records of Site Condition were recently enacted in Schedules 13 and 30 to Bill 187 (Budget Measures & Interim Appropriation Act), given Royal Assent May 17, 2007 (now Chapter 7, Statutes of Ontario 2007).

The amendments:

  • extend to municipalities and conservation authorities protection from liability where they are subject to legal proceedings arising from an inaccuracy in a Record of Site Condition (RSC) relating to the issuance of a building permit or other action under the Planning Act;
  • make changes in the way RSCs are processed by the MOE before they are effective in providing immunity from MOE orders. In particular, before being filed in the Environmental Site Registry, an RSC must be submitted to the MOE Director who will now not be required to acknowledge receipt of the RSC until the Director is satisfied that everything required by the legislation has been carried out and submitted. The Director will have the discretion to stipulate that the RSC cannot be filed where the Director believes the RSC and supporting documents have not been completed in accordance with the Regulations or otherwise. The changes also detail what must be done in a notice given by the Director where the Director finds a defect in the RSC submission and sets out the review and correction procedures.
  • make changes to immunity provisions regarding MOE orders where a contaminant moves from the RSC certified property. Currently the immunity from Ministry Orders is lost in those circumstances. These amendments preserve immunity from MOE Orders where, after the RSC is acknowledged, a contaminant moves from a property if certain investigations and certifications are included in the RSC.
  • require that the owner of the property in addition to the qualified person have a duty to preserve key reports used to obtain an RSC.

To view Bill 187, click here.