The Record of Site Condition Regulation (Ontario Regulation 153/04) was amended on December 29, 2009 and again most recently in May, 2011. While there were some changes which took effect immediately, the great majority of the changes come into effect on July 1, 2011.
The Record of Site Condition Regulation made pursuant to the Environmental Protection Act sets out the process and the standards to be used for the purposes of determining whether a property is “clean”. Using the procedures and standards made pursuant to this Regulation, an owner may file a Record of Site Condition (“RSC”) on the Environmental Site Registry. The effect of filing a RSC on the Registry is that, subject to the information in the RSC being accurate and subject to no new information coming forward indicating that site conditions are different than as reported in the RSC, no order shall be issued by the Ministry of Environment in respect of the contaminants discharged into the natural environment on the property before the certification date where that contaminant was on, in or under the property as of the certification date. A RSC is often used as a determining factor for whether or not to conduct remediation of property or whether to purchase or lend on property.
The changes to the Regulation which come into effect on July 1, 2011 include the following:
- New Standards. Not only do many of the numerical Standards for the different property uses and different site conditions change (in the majority of cases the Standards become more stringent) there are also now new Standards for Background Site Conditions, shallow soils and for use within 30 metres of a water body.
- The requirements for a Phase I Environmental Site Assessment have been revised and have become more extensive, where a Phase I Environmental Site Assessment is to be used in support of a RSC.
- The requirements for a Phase II Environmental Site Assessment have been revised and have become more extensive, where a Phase II Environmental Site Assessment is to be used in support of a RSC.
- The amended Regulation also now mandates the completion of a Phase II Environmental Site Assessment where a property has been used for an industrial use or certain specified commercial uses.
Since the publication of the changes to the Regulation there have also been a number of Technical Guidance Documents which have been published including the Soil Vapour Intrusion Assessment, all for the purpose of providing a greater direction as to the requirements to be met for the purposes of filing a RSC under this amended Regulation.
Although the changes to the RSC Regulation do not come into effect until July 1, 2011, many purchasers and lenders on property have already required that properties meet the new Standards, or be remediated in order to meet the new Standards .