Environmental Protection Act
Loi sur la protection de l’environnement

ONTARIO REGULATION 153/04

No Amendments

RECORDS OF SITE CONDITION — PART XV.1 OF THE ACT

Historical version for the period June 1, 2004 to September 30, 2004.

This Regulation is made in English only.

SKIP TABLE OF CONTENTS

CONTENTS

Note: This Regulation comes into force on October 1, 2004. See: O. Reg. 153/04, s. 55 (1).

PART I
DEFINITIONS, INTERPRETATION AND APPLICATION

Definitions and application

1.  (1)  In this Regulation, and in any document or provision of a document adopted by reference by this Regulation,

“associated product” means any product of petroleum or any other liquid product used as a fuel, other than gasoline, wax and asphalt;

“bulk liquid dispensing facility” means premises at which solvents, gasoline or associated products are stored in one or more storage tanks and dispensed for sale;

“Cleanup Guideline 1996” means the Ministry publication entitled “Guideline for Use at Contaminated Sites in Ontario” originally dated June 1996 and later revised;

“dry cleaning equipment” means dry cleaning equipment as defined in Ontario Regulation 323/94 made under the Act;

“garage” means a place or premises where motor vehicles are received for maintenance or repairs for compensation;

“gasoline” means a product of petroleum that may include oxygenates and gasoline additives that has a flash point below 37.8°C, that is a liquid at standard temperature and pressure and that is designed for use in an engine;

“gasoline outlet” means any premises to which the public is invited, at which gasoline or an associated product is sold and is put into the fuel tanks of motor vehicles or floating motorized watercraft, or into portable containers;

“Phase I ESA Standard” means the document entitled “Phase I Environmental Site Assessment” and designated as CAN/CSA Z768-01 published by the Canadian Standards Association and dated November 2001, as it may be amended from time to time;

“Phase II ESA Standard” means the document entitled “Phase II Environmental Site Assessment” and designated as CAN/CSA Z769-00 published by the Canadian Standards Association and dated March 2000, as it may be amended from time to time;

“road” means the part of a common or public highway, street, avenue, parkway, square, place, bridge, viaduct or trestle that is improved, designed or ordinarily used for regular traffic and includes the shoulder;

“rock” means a naturally occurring aggregation of one or naturally occurring minerals that is 2 millimetres or larger in size or that does not pass the US #10 sieve;

“sediment” means the soil, to a maximum depth of 0.15 metres, located at the base of a water body;

“sewage treatment facility” means that part of a sewage works as defined in the Ontario Water Resources Act that treats or disposes of sewage but does not include the part of the sewage works that collects or transmits sewage;

“soil” means, except for the purposes of shallow soil property as defined in section 41, unconsolidated naturally occurring mineral particles and other naturally occurring material resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that pass the US #10 sieve;

“Soil, Ground Water and Sediment Standards” means the “Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act” published by the Ministry and dated March 9, 2004;

“solvent” means any volatile organic compound that is used as a cleaning agent, diluent, dissolver, thinner, or viscosity reducer, or for a similar purpose;

“subsurface soil” means soil that is more than 1.5 metres beneath the soil surface, excluding the thickness of any non-soil surface treatment such as asphalt, concrete or aggregate;

“surface soil” means soil that is no more than 1.5 metres beneath the soil surface, excluding the thickness of any non-soil surface treatment such as asphalt, concrete or aggregate;

“transition notice” means the notice referred to in paragraph 2 of subsection 168.4 (6) of the Act;

“waste disposal site”, as used in the Phase I ESA Standard and this Regulation, means a waste disposal site as defined in section 25 of the Act;

“water body” means a permanent stream, river or similar watercourse or a pond or lake, but does not include a pond constructed on the property for the purpose of controlling surface water drainage;

“water treatment facility” means, in respect of a large municipal drinking water system, as defined in Ontario Regulation 170/03, a facility that is used in relation to the treatment of water and includes any equipment related to the management of residue from the treatment process or the management of a substance into the natural environment from the system. O. Reg. 153/04, s. 1 (1).

(2)  For the purposes of this Regulation, the following are the types of property uses:

1. Agricultural or other use.

2. Commercial use.

3. Community use.

4. Industrial use.

5. Institutional use.

6. Parkland use.

7. Residential use. O. Reg. 153/04, s. 1 (2).

(3)  In this Regulation, in relation to a use of property,

“agricultural or other use” means,

(a) the use of land, or a building on the property for an agricultural purpose, including, but not limited to, animal husbandry, aquaculture, beekeeping, dairying, field crops, forestry, fruit farming, horticulture, market gardening, poultry raising and the operation of glass- or plastic-covered greenhouses, or

(b) any other use of land or a building on the property, other than a commercial use, community use, industrial use, institutional use, parkland use or residential use;

“commercial use” means any use of land or a building on the property for an enterprise or activity involving the exchange of goods or services, including the following uses:

1. Use as a hotel, motel, hostel or similar accommodation.

2. Use as an office building.

3. In respect of the classification of occupancies in Table 3.1.2.1. of Ontario Regulation 403/97 (Building Code), use that falls within,

i. Group D, business and personal services occupancies, or

ii. Group E, mercantile occupancies.

“community use” means use of land for a road or any of the following uses in a building on the property:

1. Use of a building for,

i. indoor recreational activities,

ii. travel purposes, such as use for a railway station or an airport passenger terminal, or like purposes,

iii. an indoor gathering of people for civic, religious or social purposes.

2. In respect of the classification of occupancies in Table 3.1.2.1. of Ontario Regulation 403/97 (Building Code), use that falls within,

i. Group A, Division 1, assembly occupancies intended for the production and viewing of the performing arts, or

ii. Group A, Division 3, assembly occupancies of the arena type.

3. Use of a classroom in a building by a,

i. a university that is authorized to operate pursuant to section 3 of the Post-secondary Education Choice and Excellence Act, 2000,

ii. a college established under the Ontario Colleges of Applied Arts and Technology Act, 2002,

iii. any other institution with authority to grant a degree or part of a degree under the Post-secondary Education Choice and Excellence Act, 2000,

iv. a private career college as defined and approved under the Private Career Colleges Act;

“industrial use” means any of the following uses of land or of a building on the property:

1. Use for an enterprise or activity involving assembling, fabricating, manufacturing, processing, producing, storing, warehousing or distributing goods or raw materials.

2. In respect of the classification of occupancies in Table 3.1.2.1. of Ontario Regulation 403/97 (Building Code), use that falls within,

i. Group F, Division 1, high hazard industrial occupancies,

ii. Group F, Division 2, medium hazard industrial occupancies, or

iii. Group F, Division 3, low hazard industrial occupancies.

3. Use for research or development in association with an enterprise or activity described in paragraph 1.

4. Use for the transportation of goods or people by railway or by airplane, but not including use for a gathering of people for travel purposes, such as use as a railway station or an airport passenger terminal.

5. Use as a waste disposal site as defined in section 25 of the Act, except a site for organic soil conditioning as defined in Regulation 347 of the Revised Regulations of Ontario, 1990 made under the Act.

6. Use in connection with sewage works described in subsection 53 (6.1) of the Ontario Water Resources Act.

7. Use for the production of oil or gas, or for mining or quarrying.

8. Use in connection with a water treatment facility.

9. Use in connection with a sewage treatment facility.

10. Use for the generation or transformation of electricity.

11. Use for the storage, maintenance or repair of equipment or material used to maintain transportation systems.

12. Use as a salvage yard, including an automobile wrecking yard or premises;

“institutional use” means any of the following uses of land or a building on the property:

1. Use as a day-care centre.

2. Use as a school as defined in the Education Act.

3. Use as a private school as defined in the Education Act;

“parkland use” means the use of land or a building on the property for,

(a) outdoor recreational activities, including use for a playground or a playing field,

(b) a day camp, an overnight camp or an overnight camping facility,

(c) an outdoor gathering of people for civic or social purposes, or

(d) in respect of the classification of occupancies in Table 3.1.2.1. of Ontario Regulation 403/97 (Building Code), use that falls within Group A, Division 4, assembly occupancies in which occupants are gathered in the open air;

“residential use” means any of the following uses of land or a building on the property:

1. Use as a home or mobile home, or as a residence not otherwise described in this definition, but not including use as a hotel, motel, hostel or similar accommodation.

2. In respect of the classification of occupancies in Table 3.1.2.1. of Ontario Regulation 403/97 (Building Code), use that falls within,

i. Group B, Division 1, detention occupancies,

ii. Group B, Division 2, care and treatment occupancies, or

iii. Group B, Division 3, care occupancies.

3. Use as a health care facility as defined in Ontario Regulation 170/03 made under the Safe Drinking Water Act, 2002.

4. Use as a place of custody or detention for the purposes of the Youth Criminal Justice Act (Canada) or a correctional institution established or continued under section 14 of the Ministry of Correctional Services Act, whether the institution is operated or maintained by the Crown or any other person.

5. Use as a penitentiary as defined in the Corrections and Conditional Release Act (Canada) or as a prison as defined in the Prisons and Reformatories Act (Canada).

6. Use as a residence associated with any of the following:

i. A university that is authorized to operate pursuant to section 3 of the Post-secondary Education Choice and Excellence Act, 2000.

ii. A college established under the Ontario Colleges of Applied Arts and Technology Act, 2002.

iii. Any other institution with authority to grant a degree or part of a degree under the Post-secondary Education Choice and Excellence Act, 2000.

iv. A private career college as defined and approved under the Private Career Colleges Act. O. Reg. 153/04, s. 1 (3).

Unused property, most recent use

2.  For the purposes of this Regulation, if property is unused, the property is deemed to have the type of property use to which the property was most recently put. O. Reg. 153/04, s. 2.

Mixed use property, most sensitive use

3.  (1)  If a property is used for more than one type of property use, the site condition standards that are applicable to the property are the standards that are applicable to the most sensitive type of property use. O. Reg. 153/04, s. 3 (1).

(2)  The following rules apply in determining which type of property use is the most sensitive type of property use:

1. An agricultural or other use is the most sensitive of any type of property use.

2. A residential use, parkland use or institutional use is more sensitive than an industrial use, commercial use or community use. O. Reg. 153/04, s. 3 (2).

PART II
DEFINED PERSONS

Owner of property

4.  For the purposes of Part XV.1 of the Act,

“owner”, in relation to a record of site condition, includes a receiver in respect of the property for which the record of site condition is filed or is to be filed. O. Reg. 153/04, s. 4.

Qualified persons, other than risk assessment

5.  (1)  A person referred to in subsection (2) meets the qualifications to be a qualified person for the purposes of,

(a) conducting or supervising a phase one environmental site assessment; and

(b) completing the certifications that must be completed by a qualified person in a record of site condition in respect of a property if a phase two environmental site assessment was not conducted for any part of the property. O. Reg. 153/04, s. 5 (1).

(2)  A person meets the qualifications to be a qualified person for the purposes of subsection (1) if,

(a) the person holds a licence or temporary licence issued under the Professional Engineers Act to engage in the practice of professional engineering, other than a limited licence issued under that Act;

(b) the person is a member of the Association of Professional Geoscientists of Ontario under the Professional Geoscientists Act, 2000, but not if the person is a limited member or a non-practising member;

(c) the person is registered as an applied science technologist or a certified engineering technologist by the Ontario Association of Certified Engineering Technicians and Technologists under the Ontario Association of Certified Engineering Technicians and Technologists Act, 1998, being chapter Pr7;

(d) the person is registered as an architectural technologist by the Association of Architectural Technologists of Ontario under the Association of Architectural Technologists of Ontario Act, 1996, being chapter Pr20;

(e) pursuant to the by-laws made under The Ontario Professional Agrologists Act, 1960, being chapter 158, the person is certified as a professional agrologist by the Ontario Institute of Professional Agrologists; or

(f) the person is registered as a chartered chemist by the Association of the Chemical Profession of Ontario under the Association of the Chemical Profession of Ontario Act, 1984, being chapter Pr10. O. Reg. 153/04, s. 5 (2).

(3)  A person referred to in clauses (2) (a), (b), (e) and (f) meets the qualifications to be a qualified person for the purposes of,

(a) conducting or supervising a phase two environmental site assessment; and

(b) completing the certifications that must be completed by a qualified person in a record of site condition in respect of a property, if the record of site condition for the property is being filed on the basis that the property meets all the applicable site condition standards, and no risk assessment was required for that property. O. Reg. 153/04, s. 5 (3).

(4)  A person referred to in clauses (2) (a) and (b) meets the qualification to be a qualified person for the purposes of completing the certifications that must be completed by a qualified person in a record of site condition in respect of a property, if a risk assessment has been carried out in respect of the property and the record of site condition is being filed on the basis that the property meets the standards specified in the risk assessment. O. Reg. 153/04, s. 5 (4).

(5)  This section is revoked on October 1, 2006. O. Reg. 153/04, s. 5 (5).

Qualified persons, risk assessment

6.  (1)  A person meets the qualifications to be a qualified person for the purposes of section 168.1 of the Act in relation to the preparation or supervision of a risk assessment if,

(a) the person holds a bachelor’s degree in science, engineering or applied technology from a post-secondary institution;

(b) the person has experience in the conduct or supervision of environmental site assessments, or in the conduct, supervision or review of assessment of risk described in clause (c), or in any combination of both, as follows:

(i) if the person holds a doctoral degree in science or engineering from a university, five years’ experience,

(ii) if the person holds a master’s degree in science or engineering from a university, seven years’ experience,

(iii) in any other case, eight years’ experience; and

(c) within the period of experience required by clause (b), the person has two years’ experience,

(i) in the conduct or supervision of an assessment of risk, or

(ii) in the technical or scientific review of an assessment of risk on behalf of a public authority. O. Reg. 153/04, s. 6 (1).

(2)  In this section,

“assessment of risk” means an assessment of human health risks and ecological risks associated with the presence or discharge of contaminants on, in or under property, and includes the preparation of a risk assessment of a site specific risk assessment under the Cleanup Guideline 1996;

“environmental site assessment” means an investigation in relation to land to determine the environmental condition of property, and includes a phase one environmental site assessment and a phase two environmental site assessment;

“university” means a university within or outside of Ontario. O. Reg. 153/04, s. 6 (2).

Qualified persons, insurance

7.  (1)  Subject to subsection (3), every qualified person mentioned in sections 5 and 6 shall maintain insurance coverage under an insurance policy that satisfies the requirements in subsection (2),

(a) at all times when the person,

(i) undertakes or supervises any work in their capacity as a qualified person, including any work associated with a phase one environmental site assessment, a phase two environmental site assessment or a risk assessment that is completed for the purposes of filing a record of site condition under section 168.4 of the Act, or

(ii) makes a statement required by this Regulation; and

(b) for a period of two years after the date the qualified person ceases to act in his or her capacity as a qualified person, including doing anything described in clause (a). O. Reg. 153/04, s. 7 (1).

(2)  The insurance policy must satisfy the following criteria:

1. The policy shall indemnify the qualified person against liability imposed by law arising out of the performance of or the failure to perform any activity described in subsection (1) for claims whenever occurring that are first made and reported to the insurer during period that insurance coverage is required by subsection (1).

2. The insurance policy shall, at a minimum, specify an indemnity limit of $1,000,000 per claim and $1,000,000 in the aggregate during the period of the insurance.

3. The insurance policy shall provide for the continuation of coverage if the insured is adjudged as bankrupt, insolvent, incompetent or dies during the period of insurance. O. Reg. 153/04, s. 7 (2).

(3)  This section does not apply to a qualified person who undertakes the work described in section 5 or 6 on behalf of his or her employer and in respect of property owned by the employer. O. Reg. 153/04, s. 7 (3).

PART III
ENVIRONMENTAL SITE REGISTRY

Contents public

8.  (1)  The Director shall ensure that records of site condition, notices and other documents that are filed in the Registry are available for examination by the public. O. Reg. 153/04, s. 8 (1).

(2)  If the Director becomes aware of a clerical, grammatical or typographical error in a record of site condition, notice or other document that has been filed in the Registry, the Director may cause the error to be corrected and the correction shall not require a new filing. O. Reg. 153/04, s. 8 (2).

Notice to users

9.  The Director shall ensure that the Registry contains a notice advising users of the Registry who have dealings with any property to consider conducting their own due diligence with respect to the environmental condition of the property, in addition to reviewing information in the Registry. O. Reg. 153/04, s. 9.

Notice of order in Registry

10.  (1)  The Director may require that the Registry contain notice of an order issued under section 7, 8, 12, 17, 18, 97, 157 or 157.1 of the Act with respect to a property for which a record of site condition has been filed, if the order is issued in respect of a contaminant that was discharged into the natural environment before the certification date of the record of site condition and the contaminant was on, in or under the property as of the certification date. O. Reg. 153/04, s. 10 (1).

(2)  The Director may require that the Registry contain notice of an order issued under section 16, 16.1 or 32 of the Ontario Water Resources Act with respect to a property for which a record of site condition has been filed, if the order is issued in respect of material that was discharged into the natural environment before the certification date of the record of site condition and the material was on, in or under the property as of the certification date. O. Reg. 153/04, s. 10 (2).

(3)  The Director may require that the Registry contain notice of a proceeding commenced under the Provincial Offences Act, if the proceeding relates to a false or misleading statement made in a record of site condition or a risk assessment. O. Reg. 153/04, s. 10 (3).

(4)  If the Director requires that a notice be contained in the Registry under this section and the circumstances giving rise to the notice no longer exist, the Director may require that the notice be withdrawn from the Registry. O. Reg. 153/04, s. 10 (4).

Note: Part IV comes into force on the day subsection 2 (37) of the Brownfields Statute Law Amendment Act, 2001 comes into force. See: O. Reg. 153/04, s. 55 (2).

PART IV
CHANGE OF PROPERTY USE

Definitions for the Act, industrial, commercial, residential and parkland use

11.  (1)  For the purposes of section 168.3.1 of the Act, “industrial use”, “commercial use”, “residential use” and “parkland use”, in relation to the use of property, have the meanings given by subsection 1 (3) of this Regulation. O. Reg. 153/04, s. 11 (1).

(2)  For the purposes of the Act and this Regulation, a reference to a change in the use of a property does not include a reference to a change in the zoning of the property under a municipal by-law. O. Reg. 153/04, s. 11 (2).

Exemption, construction, s. 168.3.1 of the Act

12.  Despite clause 168.3.1 (1) (c) of the Act, subsection 168.3.1 (1) of the Act does not apply to the issuance of a building permit under section 8 of the Building Code Act, 1992 if the only construction authorized by the permit is,

(a) the removal of soil, rock or fill for the purpose of making an excavation; or

(b) the erection of a retaining structure or other structure,

(i) to support the sides of the excavation,

(ii) that are erected to assist in the conduct of an investigation in relation to property, or

(iii) for any other activity necessary for the purpose of filing a record of site condition. O. Reg. 153/04, s. 12.

Exemptions, change of use, s. 168.3.1 (1) (a) of the Act

13.  (1)  Despite clause 168.3.1 (1) (a) of the Act, a person may change the use of a property from a railway line to a trail used for recreational activities, subject to subsection (2). O. Reg. 153/04, s. 13 (1).

(2)  Clause 168.3.1 (1) (a) of the Act applies to a change of use of a portion of a property described in subsection (1), if the use of the portion is changed to a playground, a playing field, a day camp, an overnight camp or an overnight camping facility, whether the use of the portion is for the use of trail users only or for the general public. O. Reg. 153/04, s. 13 (2).

(3)  Despite clause 168.3.1 (1) (a) of the Act, a person may change the use of a property from a landfilling site approved under Part V of the Act to any property use. O. Reg. 153/04, s. 13 (3).

Changes of use, s. 168.3.1 (1) (b) of the Act

14.  A person shall not change the use of property for the purposes of clause 168.3.1 (1) (b) of the Act in any of the following manners:

1. A change from an industrial use to an agricultural or other use or to an institutional use.

2. A change from an industrial use to more than one type of property use, including any or all of the following:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use.

3. If the property is used for an industrial use as well as any other type or types of property use, a change in the use of part or all of the property used for industrial use to any or all of the following types of property uses:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use.

4. A change from a commercial use to an agricultural or other use or to an institutional use.

5. A change from a commercial use to more than one type of property use including any or all of the following types of property use:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use.

6. If the property is used for a commercial use as well as any other type or types of property use, a change in the use of part or all of the property used for commercial use to any or all of the following types of property uses:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use.

7. A change from a community use to an agricultural or other use or to an institutional use, a parkland use or a residential use.

8. A change from a community use to more than one type of property use, including any or all of the following types of property use:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use.

9. If the property is used for a community use as well as any other type or types of property use, a change in the use of part or all of the property used for community use to any or all of the following types of property uses:

i. Agricultural or other use.

ii. Institutional use.

iii. Parkland use.

iv. Residential use. O. Reg. 153/04, s. 14.

Exemption, change in use

15.  If a part of a building on a property is used for a residential use or institutional use and another part of the building is used for a commercial use, a community use or an industrial use, section 168.3.1 of the Act and section 14 do not apply to,

(a) a change in the use of the property that is substantially restricted to the part of the property where the building is located; or

(b) the construction of a building, if the building will be used in connection with a change in use described in clause (a). O. Reg. 153/04, s. 15.

PART V
RECORDS OF SITE CONDITION

Records of site condition, requirements

16.  (1)  A record of site condition shall be completed and filed in accordance with the requirements set out in Schedule A. O. Reg. 153/04, s. 16 (1).

(2)  Paragraph 4 of subsection 168.4 (2) of the Act does not apply to a record of site condition filed in respect of a property if a phase two environmental site assessment has not been conducted for any part of the property. O. Reg. 153/04, s. 16 (2).

(3)  A transition notice shall be completed and filed in accordance with the requirements set out in Schedule B. O. Reg. 153/04, s. 16 (3).

Certification date

17.  (1)  This section applies to the certification date of a record of site condition filed in the Registry under section 168.4 of the Act in relation to a property. O. Reg. 153/04, s. 17 (1).

(2)  If a phase two environmental site assessment is not conducted for any part of the property, the certification date is the day on which the qualified person forms the conclusion that the certifications made in the record of site condition are true. O. Reg. 153/04, s. 17 (2).

(3)  If a phase two environmental site assessment is conducted for any part of the property, the certification date is the last day on which sampling was done that confirms that the property meets any applicable site condition standards, or any standard specified in a risk assessment, in relation to a contaminant. O. Reg. 153/04, s. 17 (3).

(4)  For the purposes of a record of site condition filed in the Registry under subsection 168.4 (6) of the Act, the certification date is the date set out in Part 5 (Affidavit of Principal Consultant) of the record of site condition that was acknowledged by the Ministry under the Cleanup Guideline 1996. O. Reg. 153/04, s. 17 (4).

Retention and storage of reports

18.  (1)  For the purposes of subsection 168.4 (5) of the Act, the prescribed period for the retention of a report by a qualified person is seven years after the date the record of site condition listing the report is filed in the Registry. O. Reg. 153/04, s. 18 (1).

(2)  Subsection (1) and subsection 168.4 (5) of the Act do not apply if the qualified person takes all reasonable steps to ensure that a copy of the report is stored for the period referred to in subsection (1) in the offices of the firm, company or partnership where the qualified person was employed at the time when the report was prepared. O. Reg. 153/04, s. 18 (2).

Transition, requirements for filing old records of site condition

19.  (1)  The following are the requirements that an owner shall certify as having been complied with in the notice filed in the Registry for the purposes of paragraph 2 of subsection 168.4 (6) of the Act:

1. The property in respect of which the notice is to be filed is the same property or entirely within the property in respect of which the record of site condition was submitted to the Ministry.

2. A qualified person has certified to the owner that he or she has reviewed the following:

i. A copy of the record of site condition that has been acknowledged as received by the Ministry under the Cleanup Guideline 1996.

ii. The environmental reports listed in Part 2 of the record of site condition that was acknowledged by the Ministry under the Cleanup Guideline 1996.

3. The qualified person has made the following certifications to the owner on the basis of that review:

i. The information in the record of site condition that was acknowledged by the Ministry under the Cleanup Guideline 1996 is consistent with the environmental reports listed in Part 2 of the record of site condition.

ii. The record of site condition was properly completed in accordance with the Cleanup Guideline 1996.

iii. At the time of the certification date, the record of site condition indicates that the property met the appropriate environmental site conditions for the land use specified in Part 3 of the record of site condition that was acknowledged by the Ministry under the Cleanup Guideline 1996. O. Reg. 153/04, s. 19 (1).

(2)  This section and subsection 168.4 (6) of the Act do not apply if a detailed site assessment as referred to in section 8.2 of the Cleanup Guideline 1996, was not completed and, before the record of site condition was submitted to the Ministry, the property to which the record of site condition relates was,

(a) used at any time, in whole or in part, for an industrial use; or

(b) used at any time, in whole or in part, for any of the following commercial uses:

(i) As a garage.

(ii) As a bulk liquid dispensing facility, including a gasoline outlet.

(iii) For the operation of dry cleaning equipment. O. Reg. 153/04, s. 19 (2).

Past owners, immunity

20.  (1)  This section applies to a person who, before the certification date of a record of site condition filed in the Registry, owned the property for which the record of site condition was filed. O. Reg. 153/04, s. 20 (1).

(2)  A person meets the requirements for the purposes of paragraph 4 of subsection 168.7 (1) of the Act if the person satisfies one of the following requirements:

1. The person sold the property to a purchaser pursuant to an agreement for the purchase and sale of land that included a condition, covenant or term that the purchaser would file a record of site condition for the property in the Registry under section 168.4 of the Act and the purchaser has filed a record of site condition for the property in the Registry, in accordance with that agreement.

2. The person was the owner of the property at the time that a record of site condition in respect of the property was submitted to the Ministry pursuant to the Cleanup Guideline 1996, if the record of site condition was filed pursuant to subsection 168.4 (6) of the Act. O. Reg. 153/04, s. 20 (2).

Soil management

21.  (1)  This section applies in relation to a property if,

(a) a record of site condition has been filed in the Registry containing a certification under sub-subparagraph 4 i C of subsection 168.4 (1) of the Act by a qualified person that the property meets the applicable stratified site condition standards for all prescribed contaminants subject to any exceptions specified by the qualified person; and

(b) since the record of site condition was filed, sub-surface soil at the property has been disturbed so that it is brought to within 1.5 metres beneath the soil surface, or is deposited on top of the soil surface. O. Reg. 153/04, s. 21 (1).

(2)  A person who owns or occupies the property, or a person who has charge, management or control of the property, shall ensure that any disturbed sub-surface soil that does not, after the disturbance, meet the applicable stratified site condition standards for all prescribed contaminants does not remain within 1.5 metres of the surface of the property. O. Reg. 153/04, s. 21 (2).

(3)  Subsection (2) only applies to a person who occupies or has charge, management or control of the property if the person, whether alone or with any other person, has engaged in or arranged for the activity that caused the sub-surface soil at the property to be disturbed. O. Reg. 153/04, s. 21 (3).

PART VI
DEFINITIONS FOR AND INTERPRETATION OF PHASE I AND PHASE II ESA STANDARDS

Definitions and application

22.  (1)  In Parts VII and VIII and, as specified in the definitions in this section, in the Phase I and Phase II ESA Standards as adopted by this Regulation,

“adjoining property”, as used in the Phase I ESA Standard in relation to a phase one environmental site assessment of a property, means any property that is contiguous or immediately adjacent to the property under assessment;

“assessor”, as used in the Phase I and Phase II ESA Standards in relation to a phase one or phase two environmental site assessment, or part of such an assessment, means the individual who conducts the assessment or part-assessment;

“BTEX”, as used in the Phase II ESA Standard means benzene, toluene, ethylbenzene and xylenes;

“client” as used in the Phase I and Phase II ESA Standards and this Regulation in relation to a phase one or phase two environmental site assessment of a property, means the owner of the property, or, if the property is owned by more than one person, the owner who commissioned the assessment;

“contamination” as used in the Phase I and Phase II ESA Standards in relation to a phase one or phase two environmental site assessment of a property, includes the presence of a contaminant in soil, sediment or ground water at the property, in concentrations that exceed the maximum concentrations set out in the applicable site condition standards prescribed under Part IX (Site Condition Standards and Risk Assessments);

“environmental audit” as used in the Phase I ESA Standard, means a systematic process of objectively obtaining and evaluating information about the potential environmental effects of activities that are taking place or have taken place on the property being audited;

“hazardous material” as used in the Phase I ESA Standard, means material that may, upon exposure, constitute an identifiable risk to human health or the natural environment;

“neighbouring property” as used in the Phase I ESA Standard in relation to a phase one environmental site assessment of a property, means an adjoining property and any other property that can reasonably be expected to have been a source of contamination in, on or under the property under assessment;

“ozone-depleting material”, as used in the Phase I ESA Standard, means an ozone depleting substance as defined in section 56 of the Act;

“PCB”, as used in the Phase I and Phase II ESA Standards, means PCB as defined in Regulation 362 of the Revised Regulations of Ontario, 1990 made under the Act;

“PCB waste”, as used in the Phase I and Phase II ESA Standards, means PCB waste as defined in Regulation 362 of the Revised Regulations of Ontario, 1990 made under the Act;

“Phase I ESA”, as used in the Phase I and Phase II ESA Standards, means,

(a) a Phase I Environmental Site Assessment (ESA) as defined in section 2.1 of the Phase I ESA Standard and includes an initial site assessment as referred to in section 8.1 of the Cleanup Guideline 1996, if the assessment is conducted before the date Parts VII and VIII of this Regulation come into force, or

(b) a phase one environmental site assessment as defined in section 168.1 of the Act, if the assessment is conducted on or after the date Parts VII and VIII of this Regulation come into force;

“Phase II ESA”, as used in the Phase I and Phase II ESA Standards, means,

(a) a Phase II Environmental Site Assessment (ESA) as defined in section 2.1 of the Phase II ESA Standard and includes a detailed site assessment as referred to in section 8.2 of the Cleanup Guideline 1996, if the assessment is conducted before the date Parts VII and VIII of this Regulation come into force, or

(b) a phase two environmental site assessment as defined in section 168.1 of the Act, if the assessment is conducted on or after the date Parts VII and VIII of this Regulation come into force;

“property”, as used in the Phase I and Phase II ESA Standards in relation to a phase one or phase two environmental site assessment, means the property under assessment, including any improvements to the property;

“sample matrix”, as used in the Phase II ESA Standard in relation to a phase two environmental site assessment, means the medium being investigated as part of the assessment;

“sampling residual”, as used in the Phase II ESA Standard in relation to a phase two environmental site assessment, means sample matrix material left over after sampling for the purposes of the assessment has been completed;

“scope of work”, as used in the Phase II ESA Standard in relation to a phase two environmental site assessment, means a document that indicates the parameters for the assessment, including site boundaries, the purpose of the assessment and the information to be collected;

“sewage disposal system”, as used in the Phase I ESA Standard, means sewage works as defined in the Ontario Water Resources Act, and “sewage system”, as used in the Phase I ESA Standard, has the same meaning;

“site”, as used in the Phase I and Phase II ESA Standards in relation to a phase one or phase two environmental site assessment, means the property under assessment, including any improvements to the property;

“site condition standards” means the full depth background site condition standards, full depth generic site condition standards and stratified site condition standards;

“site contact”, as used in the Phase II ESA Standard in relation to a phase two environmental site assessment, means an individual designated by the client to be informed about the commencement of field work for the assessment;

“site representative”, as used in the Phase I ESA Standard in relation to a phase one environmental site assessment of a property, means the individual designated by the owner of the property to be interviewed for the purposes of section 7.3 of the Standard;

“spill”, as used in the Phase I and Phase II ESA Standards, and in the Risk Assessment Procedures, means spill as defined in subsection 91 (1) of the Act;

“UST”, as used in the Phase II ESA Standard, means an underground storage tank;

“waste”, as used in the Phase I ESA Standard, means waste as defined in section 25 of the Act;

“waste generator”, as used in the Phase I ESA Standard, means a generator as defined in Regulation 347 of the Revised Regulations of Ontario, 1990 made under the Act;

“water distribution system”, as used in the Phase I ESA Standard in relation to a phase one environmental site assessment, means a drinking-water system as defined in the Safe Drinking Water Act, 2002. O. Reg. 153/04, s. 22 (1).

(2)  For the purposes of the Phase I and Phase II ESA Standards as adopted by reference by this Regulation, this section and section 1 apply despite anything to the contrary in those Standards. O. Reg. 153/04, s. 22 (2).

(3)  In this Regulation, a reference to a provision of the Phase I or Phase II ESA Standard by number is a reference to the provision of that Standard that had that number at the time this Regulation came into effect, as the provision may be amended from time to time. O. Reg. 153/04, s. 22 (3).

PART VII
PHASE ONE ENVIRONMENTAL SITE ASSESSMENTS

Phase one site assessment, elements

23.  (1)  Subject to subsection (2) and section 24, a phase one environmental site assessment of a property shall include the following components:

1. A records review.

2. A site visit.

3. Interviews.

4. An evaluation of the information gathered from the records review, site visit and interviews.

5. The preparation of a written report.

6. The submission of the written report to the client. O. Reg. 153/04, s. 23 (1).

(2)  An initial site assessment, as referred to in section 8.1 of the Cleanup Guideline 1996, that was commenced, but not completed, before this Regulation came into force in respect of a property satisfies the requirements of this Regulation for a phase one environmental site assessment if,

(a) a qualified person certifies in writing in the written report required under subsection (1) that the components of the initial site assessment completed before this Regulation came into force meet the requirements of this Regulation with respect to a phase one environmental site assessment, except that they were not conducted or supervised by a qualified person; and

(b) a phase one environmental site assessment is completed that consists of,

(i) a review by a qualified person of those components of the initial site assessment completed before this Regulation came into force, and

(ii) the completion of those components required under subsection (1) that were not completed at the time this Regulation came into force. O. Reg. 153/04, s. 23 (2).

Transition

24.  If, before this Regulation came into force, a report was completed for the purposes of an initial site assessment as referred to in section 8.1 of the Cleanup Guideline 1996, the initial site assessment is deemed to be a phase one environmental site assessment for the purpose of section 168.1 of the Act if a qualified person reviews the report and certifies that the initial site assessment was completed in accordance with clauses 7 and 8 of the Phase I ESA Standard. O. Reg. 153/04, s. 24.

Records review, site visit and interviews

25.  (1)  The records review, site visit and interviews required for a phase one environmental site assessment shall be conducted in accordance with clause 7 of the Phase I ESA Standard, as modified by this section. O. Reg. 153/04, s. 25 (1).

(2)  In its application under this Regulation, clause 7.2.1.4 (Limitations) of the Phase I ESA Standard is modified by the addition of the following sentence:

“However, the denial of access by any person to a structure, building or any other part of the property is not a limiting condition.”

O. Reg. 153/04, s. 25 (2).

Evaluation and reporting

26.  (1)  The evaluation of information required for a phase one environmental site assessment shall be conducted in accordance with clause 8 of the Phase I ESA Standard. O. Reg. 153/04, s. 26 (1).

(2)  The preparation and submission of written reports required for a phase one environmental site assessment shall be conducted in accordance with clause 9 of the Phase I ESA Standard, modified by the omission of clause 9.3 (Deviations). O. Reg. 153/04, s. 26 (2).

PART VIII
PHASE TWO ENVIRONMENTAL SITE ASSESSMENTS

When phase two assessment required to file record of site condition

27.  (1)  For the purposes of filing a record of site condition under subsection 168.4 (1) of the Act in relation to a property, a phase two environmental site assessment is required if the property is used, or has ever been used, in whole or in part for an industrial use or for any of the following commercial uses:

1. As a garage.

2. As a bulk liquid dispensing facility, including a gasoline outlet.

3. For the operation of dry cleaning equipment. O. Reg. 153/04, s. 27 (1).

(2)  Subsection (1) does not apply if,

(a) the property is currently used for an agricultural or other use, or a community use, an institutional use, a parkland use or a residential use; and

(b) since the latest date on which the property stopped being used for any of the types of property uses described in subsection (1), a record of site condition has been filed in the Registry under section 168.4 of the Act for the use described in clause (a). O. Reg. 153/04, s. 27 (2).

Phase two assessment, elements

28.  (1)  Subject to subsection (2) and section 29, a phase two environmental site assessment of a property shall include the following components:

1. Planning a site investigation.

2. Conducting the site investigation.

3. Interpreting and evaluating information gathered through the site investigation.

4. The preparation of a written report.

5. The submission of the written report to the client. O. Reg. 153/04, s. 28 (1).

(2)  A detailed site assessment as referred to in section 8.2 of the Cleanup Guideline 1996 that was commenced, but not completed, before this Regulation came into force in respect of a property satisfies the requirements of this Regulation for a phase two environmental site assessment if,

(a) a qualified person certifies in writing in the written report required under subsection (1) that the components of the detailed assessment completed before this Regulation came into force meet the requirements of this Regulation with respect to a phase two environmental site assessment, except that they were not conducted or supervised by a qualified person; and

(b) a phase two environmental site assessment is completed that consists of,

(i) a review by a qualified person of those components of the detailed site assessment completed before this Regulation came into force, and

(ii) the completion of those components required under subsection (1) that were not completed at the time this Regulation came into force. O. Reg. 153/04, s. 28 (2).

Transition

29.  If, before this Regulation came into force, a report was completed for the purposes of a detailed site assessment as referred to in section 8.2 of the Cleanup Guideline 1996, the detailed site assessment is deemed to be a phase two environmental site assessment for the purpose of section 168.1 of the Act if a qualified person reviews the report and certifies that the detailed site assessment was completed in accordance with clauses 6, 7 and 8 of the Phase II ESA Standard. O. Reg. 153/04, s. 29.

Planning the investigation

30.  The site investigation for a phase two environmental assessment shall be planned in accordance with clause 6 of the Phase II ESA Standard. O. Reg. 153/04, s. 30.

Conducting the investigation

31.  (1)  The site investigation for a phase two environmental site assessment shall be conducted in accordance with clause 7 of the Phase II ESA Standard, as modified by this section. O. Reg. 153/04, s. 31 (1).

(2)  In its application under this regulation, clause 7.3.3.3 (Limitations and Deviations) of the Phase II ESA Standard is modified by the addition of the following sentence:

“However, the denial of access by any person to a structure, building or any other part of the property is not a limiting condition.”

O. Reg. 153/04, s. 31 (2).

Interpretation and evaluation

32.  The site investigation for a phase two environmental assessment shall be interpreted and evaluated in accordance with clause 8 of the Phase II ESA Standard. O. Reg. 153/04, s. 32.

Reporting

33.  The preparation and submission of written reports required for a phase two environmental site assessment shall be conducted in accordance with clause 9 of the Phase II ESA Standard, modified by the omission of clause 9.3 (Deviations). O. Reg. 153/04, s. 33.

PART IX
SITE CONDITION STANDARDS AND RISK ASSESSMENTS

Site Condition Standards

Full depth background site condition standards

34.  (1)  For the purpose of sub-subparagraph 4 i A of subsection 168.4 (1) of the Act, the prescribed contaminants and the full depth background site condition standards for those contaminants are those set out in Table 1 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 34 (1).

(2)  The property meets the applicable full depth background site condition standards for the prescribed contaminants, in relation to the type of property use for which the record of site condition is filed, if the following criteria are satisfied:

1. In each of the following media that exist at the property, the concentration of the contaminants does not exceed the standards in relation to the medium for that type of property use set out in Table 1 of the Soil, Ground Water and Sediment Standards:

i. Soil, not including sediment (if any).

ii. Sediment.

2. If ground water sampling was carried out at the property as part of the phase two environmental site assessment, the concentration of the contaminants in the ground water does not exceed the standards in relation to ground water for that type of property use set out in Table 1 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 34 (2).

Non-potable and potable ground water conditions

35.  (1)  In this section,

“non-potable ground water site condition standards” means,

(a) the full depth generic site condition standards prescribed under section 37 in relation to the contaminants prescribed under that section, or

(b) the stratified site condition standards prescribed under section 39 in relation to the contaminants prescribed under that section;

“owner”, in relation to a notice in respect of a property, includes a person authorized by the owner of the property to give or receive such a notice;

“potable ground water site condition standards” means,

(a) the full depth generic site condition standards prescribed under section 36 in relation to the contaminants prescribed under that section, or

(b) the stratified site condition standards prescribed under section 38 in relation to the contaminants prescribed under that section;

“well” means a well as defined in section 35 of the Ontario Water Resources Act. O. Reg. 153/04, s. 35 (1).

(2)  For the purposes of sub-subparagraphs 4 i B and C of subsection 168.4 (1) of the Act,

(a) the non-potable ground water site condition standards may be applied only if the circumstances described in subsection (3) exist; and

(b) the potable ground water site condition standards may be applied whether or not those circumstances exist. O. Reg. 153/04, s. 35 (2).

(3)  The circumstances mentioned in subsection (2) are that,

(a) the property, and all other properties located, in whole or in part, within 100 metres of the boundaries of the property, are supplied by a municipal drinking-water system as defined in the Safe Drinking Water Act, 2002;

(b) the property is either,

(i) not located in an area designated in a municipal official plan as a well-head protection area or other designation identified by the municipality for the protection of ground water, or

(ii) if it is located in such a designated area, the municipality has consented in writing to the application of the non-potable ground water site condition standards in preparing a record of site condition for the property;

(c) the record of site condition does not specify agricultural or other use as the type of property use for which the record of site condition is filed;

(d) the owner has given the clerk of the local municipality, and of any upper-tier municipality, in which the property is located written notice of intention to apply the non-potable ground water site condition standards in preparing a record of site condition for the property; and

(e) within 30 days after receiving the notice described in clause (d),

(i) neither the local municipality nor the upper-tier municipality (if any) has given written notice (in this clause called a “notice of objection”) to the owner that it objects to that application of the non-potable ground water site condition standards, or

(ii) a local or upper-tier municipality has given a notice of objection to the owner, and the municipality, at any time after giving the notice of objection, has withdrawn the objection and given written consent to the owner for the application of the non-potable ground water site condition standards. O. Reg. 153/04, s. 35 (3).

Full depth generic site condition standards, potable ground water

36.  (1)  This section prescribes the full depth generic site condition standards that may be applied by virtue of clause 35 (2) (b). O. Reg. 153/04, s. 36 (1).

(2)  For the purpose of sub-subparagraph 4 i B of subsection 168.4 (1) of the Act, the prescribed contaminants and the applicable prescribed full depth generic site condition standards for those contaminants are those set out in Table 2 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 36 (2).

(3)  The property meets the applicable full depth generic site condition standards for the prescribed contaminants, in relation to the type of property use for which the record of site condition is filed, if the following criteria are satisfied:

1. In each of the following media that exist at the property, the concentration of the contaminants does not exceed the standards in relation to the medium for that type of property use set out in Table 2 of the Soil, Ground Water and Sediment Standards:

i. Soil, not including sediment (if any).

ii. Sediment.

2. If ground water sampling was carried out at the property as part of the phase two environmental site assessment, the concentration of the contaminants in the ground water does not exceed the standards in relation to ground water for that type of property use set out in Table 2 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 36 (3).

Full depth generic site condition standards, non-potable ground water

37.  (1)  This section prescribes the full depth generic site condition standards that may be applied by virtue of clause 35 (2) (a). O. Reg. 153/04, s. 37 (1).

(2)  For the purpose of sub-subparagraph 4 i B of subsection 168.4 (1) of the Act, the prescribed contaminants and the applicable full depth generic site condition standards for those contaminants are those set out in Table 3 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 37 (2).

(3)  The property meets the applicable full depth generic site condition standards for the prescribed contaminants, in relation to the type of property use for which the record of site condition is filed, if the following criteria are satisfied:

1. In each of the following media that exist at the property, the concentration of the contaminants does not exceed the standards in relation to the medium for that type of property use set out in Table 3 of the Soil, Ground Water and Sediment Standards:

i. Soil, not including sediment (if any).

ii. Sediment.

2. If ground water sampling was carried out at the property as part of the phase two environmental site assessment, the concentration of the contaminants in the ground water does not exceed the standards in relation to ground water for that type of property use set out in Table 3 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 37 (3).

Stratified site condition standards, potable ground water

38.  (1)  This section prescribes the stratified site condition standards that may be applied by virtue of clause 35 (2) (b). O. Reg. 153/04, s. 38 (1).

(2)  For the purpose of sub-subparagraph 4 i C of subsection 168.4 (1) of the Act, the prescribed contaminants and the applicable stratified site condition standards for those contaminants are as set out in Table 4 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 38 (2).

(3)  The property meets the applicable stratified site condition standards for the prescribed contaminants, in relation to the type of property use for which the record of site condition is filed, if the following criteria are satisfied:

1. In each of the following media that exist at the property, the concentration of the contaminants does not exceed the standards in relation to the medium for that type of property use set out in Table 4 of the Soil, Ground Water and Sediment Standards:

i. Surface soil, not including sediment (if any).

ii. Subsurface soil, not including sediment (if any).

iii. Sediment.

2. If ground water sampling was carried out at the property as part of the phase two environmental site assessment, the concentration of the contaminants in the ground water does not exceed the standards in relation to ground water for that type of property use set out in Table 4 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 38 (3).

Stratified site condition standards, non-potable ground water

39.  (1)  This section prescribes the stratified site condition standards that may be applied by virtue of clause 35 (2) (a). O. Reg. 153/04, s. 39 (1).

(2)  For the purpose of sub-subparagraph 4 i C of subsection 168.4 (1) of the Act, the prescribed contaminants and the applicable stratified site condition standards for those contaminants are as set out in Table 5 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 39 (2).

(3)  The property meets the applicable stratified site condition standards for the prescribed contaminants, in relation to the type of property use for which the record of site condition is filed, if the following criteria are satisfied:

1. In each of the following media that exist at the property, the concentration of the contaminants does not exceed the standards in relation to the medium for that type of property use set out in Table 5 of the Soil, Ground Water and Sediment Standards:

i. Surface soil, not including sediment (if any).

ii. Subsurface soil, not including sediment (if any).

iii. Sediment.

2. If ground water sampling was carried out at the property as part of the phase two environmental site assessment, the concentration of the contaminants in the ground water does not exceed the standards in relation to ground water for that type of property use set out in Table 5 of the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 39 (3).

Stratified site condition standards not applicable to certain uses

40.  The qualified person shall not use the applicable stratified site conditions standards pursuant to sub-subparagraph 4 i C of subsection 168.4 (1) of the Act in certifying the record of site condition for the purposes of paragraph 4 of subsection 168.4 (1) of the Act if agricultural or other use is specified under paragraph 3 of subsection 168.4 (2) of the Act as the type of property use for which the record of site condition is filed. O. Reg. 153/04, s. 40.

Site condition standards, environmentally sensitive areas

41.  (1)  This section applies in relation to a property if,

(a) the property is within an area of natural significance, or includes or is adjacent to such an area or part of such an area;

(b) the soil at the property has a pH value as follows:

(i) for surface soil, less than 5 or greater than 9,

(ii) for sub-surface soil, less than 5 or greater than 11;

(c) the property is a shallow soil property;

(d) the property includes or is adjacent to a water body or includes land that is within 30 metres of a water body; or

(e) a qualified person is of the opinion that, given the characteristics of the property and the certifications the qualified person would be required to make in a record of site condition in relation to the property as specified in Schedule A, it is appropriate to apply this section to the property. O. Reg. 153/04, s. 41 (1).

(2)  If this section applies, the qualified person shall not use the following standards in certifying the record of site condition for the purposes of paragraph 4 of subsection 168.4 (1) of the Act:

1. The applicable full-depth generic site condition standards pursuant to sub-subparagraph 4 i B of subsection 168.4 (1) of the Act.

2. The applicable stratified site condition standards pursuant to sub-subparagraph 4 i C of subsection 168.4 (1) of the Act. O. Reg. 153/04, s. 41 (2).

(3)  In this section,

“area of natural significance” means any of the following:

1. A provincial park designated by a regulation under the Provincial Parks Act.

2. A conservation reserve established under the Public Lands Act.

3. An area of natural and scientific interest (life science) identified by the Ministry of Natural Resources as having provincial significance.

4. A wetland identified by the Ministry of Natural Resources as having provincial significance.

5. An area designated by a municipality in its official plan as environmentally significant, however expressed, including designations of areas as environmentally sensitive, as being of environmental concern and as being ecologically significant.

6. An area designated as an escarpment natural area or an escarpment protection area by the Niagara Escarpment Plan under the Niagara Escarpment Planning and Development Act.

7. A habitat of endangered or threatened species identified by the Ministry of Natural Resources.

8. Property within an area designated as a natural core area or natural linkage area within the area to which the Oak Ridges Moraine Conservation Plan under the Oak Ridges Moraine Conservation Act, 2001 applies;

“extract test” means a test conducted in accordance with the Toxicity Characteristic Leaching Procedure, Method 1311 that appears in the United States Environmental Protection Agency Publication SW - 846 entitled “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, dated July, 1992, as it may be amended from time to time, or an equivalent test method approved by the Director;

“shallow soil property” means a property of which 1/3 or more of the area consists of soil equal to or less than 2 metres in depth beneath the soil surface, excluding any non-soil surface treatment such as asphalt, concrete or aggregate, but does not include either of the following:

1. A property that has ground water within such soil, if the concentrations of the contaminants in the ground water do not exceed the applicable standards set out in Table 6 of the Soil, Ground Water and Sediment Standards.

2. A property that has ground water beneath such soil, if an extract test of the soil indicates that the concentrations of the contaminants in the extract do not exceed the applicable standards set out in Table 6 of the Soil, Ground Water and Sediment Standards.

“soil” means, for the purposes of the definition of shallow soil property, unconsolidated naturally occurring mineral particles and other naturally occurring material resulting from the natural breakdown of rock or organic matter by physical, chemical or biological processes that are smaller than 2 millimetres in size or that pass the US #10 sieve, and includes a mixture of soil and rock if less than 50 per cent by mass of the mixture is rock. O. Reg. 153/04, s. 41 (3).

Soil textures, applicable standards

42.  (1)  If, in respect of a contaminant, a cell in a table in the Soil, Ground Water and Sediment Standards sets one standard for coarse textured soil and another standard for medium and fine textured soil for the contaminant, the qualified person shall apply the following rules in determining which standard applies to a property for that contaminant:

1. If the qualified person determines that at least 1/3 of the soil at the property, measured by volume, consists of coarse textured soil, the qualified person shall apply the standard for coarse textured soil.

2. In any other case, the qualified person may apply the standard for medium and fine textured soil. O. Reg. 153/04, s. 42 (1).

(2)  In this section,

“course textured soil” means soil that contains more than 50 per cent by mass of particles that are 75 micrometres or larger in mean diameter;

“medium and fine textured soil” means soil that contains 50 per cent or more by mass of particles that are smaller than 75 micrometres in mean diameter. O. Reg. 153/04, s. 42 (2).

Applicable site condition standard: “N/A”, “N/V” or not listed

43.  (1)  If a cell in a table in the Soil, Ground Water and Sediment Standards indicates “N/A” or “N/V” in respect of a contaminant found in an environmental medium in relation to a type of property use, no applicable site condition standard is prescribed for that contaminant found in that environmental medium in relation to that type of property use. O. Reg. 153/04, s. 43 (1).

(2)  In cases where a cell in a table in the Soil, Ground Water and Sediment Standards indicates “N/V” as referenced in subsection (1), if the contaminant is detected in the environmental medium in, on or under a property, the owner of the property may submit to the Director a new science risk assessment described in section 9 of Schedule C, if the owner or qualified person is of the opinion that a risk assessment is necessary in order to complete the certifications in a record of site condition prescribed by Schedule A. O. Reg. 153/04, s. 43 (2).

(3)  In cases where a contaminant is detected on, in or under a property and the contaminant is not listed in the table that sets out the applicable site conditions standards in the Soil, Ground Water and Sediment Standards, the owner of the property may submit to the Director a new science risk assessment described in section 9 of Schedule C, if the owner or qualified person is of the opinion that a risk assessment is necessary in order to complete the certifications in a record of site condition prescribed by Schedule A. O. Reg. 153/04, s. 43 (3).

Risk Assessments

Risk assessment form

44.  (1)  Subject to subsection (2) and section 45, a risk assessment shall be prepared and submitted in accordance with Schedule C. O. Reg. 153/04, s. 44 (1).

(2)  A site specific risk assessment of a property as referred to in the Cleanup Guideline 1996 that was commenced, but not completed, before this Regulation came into force satisfies the requirements of this Regulation if,

(a) in an appendix to the risk assessment report prepared and submitted in accordance with Schedule C, a qualified person certifies in writing that the components of the site specific risk assessment completed before this Regulation came into force meet the requirements of this Regulation with respect to a risk assessment, except that they were not completed by a qualified person; and

(b) a risk assessment is completed that consists of,

(i) a review by a qualified person of those components of the site specific risk assessment completed before this Regulation came into force, and

(ii) the completion of those components required under Schedule C that were not completed at the time this Regulation came into force. O. Reg. 153/04, s. 44 (2).

(3)  A site specific risk assessment of a property as referred to in the Cleanup Guideline 1996 that was submitted to Ministry, but not approved by the Ministry under the Guideline before this Regulation came into force, satisfies the requirements of this Regulation, if the Director determines that the site specific risk assessment complies with the requirements specified in section 4 of Schedule C, except that the site specific risk assessment was not completed by a qualified person. O. Reg. 153/04, s. 44 (3).

Transition

45.  (1)  If a site specific risk assessment in respect of a property was completed and submitted to the Ministry under the Cleanup Guideline 1996 before this Regulation came into force and was approved by the Ministry under the Guideline, the approved site specific assessment is deemed to be a risk assessment that has been accepted by the Director under section 168.5 of the Act for the purposes of the Act and this Regulation. O. Reg. 153/04, s. 45 (1).

(2)  The following provisions do not apply to a site specific risk assessment that is deemed to be a risk assessment under subsection (1), if the site specific risk assessment does not specify a standard with respect to a contaminant:

1. Sub-subparagraph 4 (ii) C of subsection 168.4 (1) of the Act.

2. Paragraph 3 of subsection 21 (2) of Schedule A.

3. Paragraph 3 of subsection 22 (2) of Schedule A.

4. Paragraph 3 of subsection 23 (2) of Schedule A.

5. Paragraph 3 of subsection 24 (2) of Schedule A.

6. Paragraph 3 of subsection 25 (2) of Schedule A. O. Reg. 153/04, s. 45 (2).

Time to respond to risk assessment

46.  (1)  The period of time prescribed for the purposes of subsection 168.5 (1) of the Act for notice to be given in relation to a risk assessment submitted by the owner to the Director is as follows:

1. In the case of a limited scope risk assessment described in section 7 of Schedule C or an estimation of natural local background concentration risk assessment described in section 8 of Schedule C, eight weeks after the date of submission.

2. In the case of a new science risk assessment described in section 9 of Schedule C or a wider area of abatement risk assessment described in section 10 of Schedule C, 22 weeks after the date of submission.

3. In any other case, 16 weeks after the date of submission. O. Reg. 153/04, s. 46 (1).

(2)  If, at any time after the submission of a risk assessment report and before the Director has made a decision on the risk assessment under section 168.5 of the Act, the Director becomes aware of one of the following circumstances, the Director may notify the owner in writing of the circumstance:

1. The type of approach taken by the risk assessment is not appropriate given the circumstances of the contaminant and the property to which the risk assessment relates.

2. The content of the risk assessment report does not comply with a requirement specified in section 4 or 5 of Schedule C.

3. The risk assessment report does not contain sufficient data or information to support the conclusions reached in the report. O. Reg. 153/04, s. 46 (2).

(3)  A notice under subsection (2) may request that the owner,

(a) revise and resubmit the risk assessment to the Director in accordance with the directions specified in the notice; or

(b) provide specified additional information for the risk assessment report by the date and time specified in the notice. O. Reg. 153/04, s. 46 (3).

(4)  If the Director gives notice under clause (3) (a), the period of time for the purposes of subsection (1) shall commence on the date that the qualified person submits the revised risk assessment in accordance with the Director’s notice. O. Reg. 153/04, s. 46 (4).

(5)  If the Director gives notice under clause (3) (b), the period of time for the purposes of subsection (1) stops on the date the notice is issued and resumes on the date the information specified in the notice is provided to the Director. O. Reg. 153/04, s. 46 (5).

(6)  At any time after an owner submits a risk assessment under subsection 168.5 of the Act to the Director, the owner may withdraw the risk assessment by giving written notice to the Director. O. Reg. 153/04, s. 46 (6).

Meeting Site Condition and Risk Assessment Standards

Analytical procedures

47.  (1)  Where a qualified person takes a sample of sediment, soil or ground water from in, on or under a property for the purpose of analysing the sample for a contaminant as part of a phase two environmental site assessment or a risk assessment or for the purpose of indicating the maximum concentration of a contaminant in, on or under the property in a record of site condition, the qualified person shall ensure that,

(a) the samples are collected and handled in accordance with the Analytical Protocol; and

(b) the analysis of the samples mentioned in clause (a) are carried out by a laboratory that,

(i) has been accredited in accordance with the International Standard ISO/IEC 17025 – General Requirement for the Competence of Testing and Calibration Laboratories, dated December 15, 1999, as amended from time to time, and

(ii) has been accredited in accordance with the standards, if standards for proficiency testing have been developed by the Standards Council of Canada for a parameter set out in the Soil, Ground Water and Sediment Standards. O. Reg. 153/04, s. 47 (1).

(2)  If a sample mentioned in subsection (1) is submitted by a qualified person to a laboratory for analysis for a contaminant, the laboratory shall,

(a) conduct the analysis for the contaminant in accordance with the Analytical Protocol; and,

(b) give a written report to the qualified person that specifies the analytical method used for conducting the analysis for the contaminant. O. Reg. 153/04, s. 47 (2).

(3)  Despite subsection (2), the analysis of a sample for a contaminant may be conducted by a laboratory using a method other than a method specified in the Analytical Protocol if the laboratory obtains the written permission of the Director to use that analytical method for that contaminant. O. Reg. 153/04, s. 47 (3).

(4)  The qualified person mentioned in subsection (2) shall obtain from the laboratory mentioned in subsection (2) written confirmation that the laboratory has conducted its analysis for a contaminant,

(a) in accordance with the Analytical Protocol; or

(b) in accordance with an analytical method for which the laboratory has obtained the written permission of the Director under subsection (3). O. Reg. 153/04, s. 47 (4).

(5)  In this section,

“Analytical Protocol”, means the “Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the Environmental Protection Act” published by the Ministry and dated March 9, 2004, as it may be amended from time to time. O. Reg. 153/04, s. 47 (5).

Meeting standards

48.  (1)  For the purposes of section 168.4 of the Act and this Regulation, a property meets an applicable site condition standard or a standard specified for a contaminant in a risk assessment, if, subject to subsection (2), the standard is met at each sampling point from which a sample is taken in, on or under the property and in no other circumstances. O. Reg. 153/04, s. 48 (1).

(2)  If two or more samples of soil or sediment are taken from sampling points at the same sampling location that are at the same depth in, on or under the property, the property meets a standard mentioned in subsection (1) if the average of the sampling results meets the standard and in no other circumstances. O. Reg. 153/04, s. 48 (2).

(3)  If, having regard to any phase one and phase two environmental site assessments for a property, a qualified person determines that an applicable site condition standard is exceeded at the property solely because a substance has been used on a highway for the purpose of keeping the highway safe for traffic under conditions of snow or ice or both, as provided for under section 2 of Regulation 339 of the Revised Regulations of Ontario, 1990 (Classes of Contaminants — Exemptions), the applicable site condition standard is deemed not to be exceeded for the purpose of Part XV.1 of the Act. O. Reg. 153/04, s. 48 (3).

(4)  In this section,

“sampling location”, means an area of the property that does not have a radius larger than two metres. O. Reg. 153/04, s. 48 (4).

Meeting petroleum hydrocarbon standards

49.  (1)  A property does not meet an applicable site condition standard in relation to a petroleum hydrocarbon unless the qualified person has determined that there is no evidence of free product, including but not limited to, any visible petroleum hydrocarbon film or sheen present in the ground water or surface water or in any ground water or surface water samples. O. Reg. 153/04, s. 49 (1).

(2)  A property does not meet an applicable potable ground water site condition standard unless the qualified person has determined that the ground water is free from objectionable petroleum hydrocarbon odour and taste. O. Reg. 153/04, s. 49 (2).

Note: Part X comes into force on the day subsection 2 (38) of the Brownfields Statute Law Amendment Act, 2001 comes into force. See: O. Reg. 153/04, s. 55 (3).

PART X
CERTIFICATES OF PROPERTY USE

Certificate of property use, notice

50.  For the purposes of subsection 168.6 (5) of the Act, the following persons are prescribed to receive notice in relation to a certificate of property use:

1. A chief building official as defined in the Building Code Act, 1992 of the municipality in which the property is located.

2. The clerk of the local municipality in which the property is located.

3. The clerk of any upper-tier municipality in which the property is located.

4. If the property is located in an area in which a board of health, planning board or conservation authority has jurisdiction under section 3.1 of the Building Code Act, 1992, in each of the following:

i. The inspector appointed under that section who has the same powers and duties in relation to sewage systems as does the chief building official in respect of buildings.

ii. The medical officer of health of the board of health, or the secretary-treasurer of the planning board or conservation authority. O. Reg. 153/04, s. 50.

Certificate of property use, prohibition on construction or use

51.  Sections 8 and 10 of the Building Code Act, 1992 are prescribed for the purposes of subsection 168.6 (6) of the Act. O. Reg. 153/04, s. 51.

PART XI
DANGEROUS CONTAMINANTS ORDERS

Emergencies relating to old contaminants

52.  (1)  For the purpose of subsection 168.8 (5) of the Act, notice of an order shall set out the number and date of issue of the order. O. Reg. 153/04, s. 52 (1).

(2)  For the purpose of subsection 168.8 (6) of the Act, notice of compliance with an order shall set out the number and date of issue of the order, and the date on which the Director became satisfied that the order has been complied with. O. Reg. 153/04, s. 52 (2).

Exceptional circumstances, municipalities

53.  (1)  For the purpose of subsection 168.14 (6) of the Act, notice of an order shall set out the number and date of issue of the order. O. Reg. 153/04, s. 53 (1).

(2)  For the purpose of subsection 168.14 (7) of the Act, notice of compliance with an order shall set out the number and date of issue of the order, and the date on which the Director became satisfied that the order has been complied with. O. Reg. 153/04, s. 53 (2).

Exceptional circumstances, secured creditors, receivers and trustees in bankruptcy

54.  (1)  For the purpose of subsection 168.20 (9) of the Act, notice of an order shall set out the number and date of issue of the order. O. Reg. 153/04, s. 54 (1).

(2)  For the purpose of subsection 168.20 (10) of the Act, notice of compliance with an order shall set out the number and date of issue of the order, and the date on which the Director became satisfied that the order has been complied with. O. Reg. 153/04, s. 54 (2).

55.  Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 153/04, s. 55.

SCHEDULE A
RECORD OF SITE CONDITION

PART I
INTERPRETATION AND APPLICATION

1.  (1)  In this Schedule,

“certification date”, in relation to a record of site condition, means the certification date applicable to the record of site condition;

“RSC” means a record of site condition under Part XV.1 of the Act;

“RSC property”, in relation to a record of site condition, means the property in respect of which the record of site condition is filed;

“RSC property use”, in relation to a record of site condition, means the type of property use in respect of which the record of site condition is filed.

(2)  The certifications, information and documents required by this Schedule are in addition to the information required under section 168.4 of the Act.

2.  The RSC and documents included in the RSC shall be filed in a form acceptable to the Director and the Director may require that the RSC and documents be filed in an acceptable electronic form.

PART II
OWNER’S OBLIGATIONS

3.  This Part applies to every RSC that is filed in respect of a property.

4.  The person who is filing the RSC in respect of the property shall ensure that the RSC contains the following information:

1. The name, mailing address, telephone number, e-mail address and fax number of the owner of the RSC property who is filing or authorizing the filing of the RSC.

2. The name of a contact person for the owner if the owner is a corporation or a partnership.

3. The name and mailing address of any other current owner of the RSC property and, if the other owner is a corporation or partnership, the name of a contact person for the other owner.

4. For the RSC property, a legal description, municipal address, assessment roll number, property identification number and GIS compatible coordinates of the centroid of the property

5. The current type of use of the property and, if the owner intends to change the type of use of the property, the proposed type of use.

6. An indication of whether a certificate of property use has been issued under section 168.6 of the Act for the RSC property and if so, the certificate of property use number.

5.  The person who is filing the RSC in respect of the property shall ensure that the following documents are contained in the RSC:

1. If the owner is a corporation, a certified copy of the Certificate of Status.

2. If the owner is a partnership, a certified copy of the Business Names Report, if one exists.

3. If the person who is filing the RSC is not the owner of the property, proof of the owner’s authorization to file the RSC.

4. If the owner has authorized an agent to make the statements required under subsection 6 (1) on their behalf, proof of the owner’s authorization to make the statements and to sign the RSC on their behalf.

5. If the owner is a receiver, proof of appointment as receiver, including any order, or proof that the receiver has taken possession or control of the property.

6. If the owner is a not receiver, a copy of the deed or transfer by which the RSC property was acquired by the owner, even if the deed or transfer includes other property in addition to the RSC property.

7. If the RSC property is a part of a larger property that is the subject of the deed or transfer, a copy of a survey of the RSC property prepared by an Ontario land surveyor.

8. If a certification is made by a qualified person under paragraph 1 or 2 of subsection 16 (2), a copy of a survey that indicates the location on the RSC property where the phase two environmental site assessment was conducted.

6.  (1)  The person who is filing the RSC shall ensure that the owner of the RSC property or their agent signs and dates the RSC and makes the following statements in the RSC, in the language set out in this section, in relation to the part of the RSC that includes the information and statements required by this Part:

1. I acknowledge that the RSC will be filed in the Environmental Site Registry, that records of site condition that are filed in the Registry are available for examination by the public and that the Registry contains a notice advising users of the Registry who have dealings with any property to consider conducting their own due diligence with respect to the environmental condition of the property, in addition to reviewing information in the Registry.

2. I have conducted reasonable inquiries to obtain all information relevant to this RSC, including information from the other current owners of the RSC property named in this part of the RSC.

3. I have disclosed all information referred to in paragraph 2 to any qualified person named in this RSC.

4. To my knowledge, the statements made in this part of the RSC are true as of [insert date on which the owner or the owner’s agent signs the RSC].

(2)  If an agent makes the certifications on behalf of the owner under subsections (1), the agent shall make the following statement, using the language set out in this subsection:

I certify that I have been authorized by the owner of the RSC property to make the statements prescribed by this section on their behalf and that the owner of the RSC property has read and understands the statements being made on their behalf.

PART III
NO PHASE TWO ESA CONDUCTED

7.  This Part applies to a RSC filed in respect of a property if a phase two environmental site assessment was not conducted for any part of the property.

8.  A qualified person shall complete, sign and date the part of the RSC that includes the information, certifications and statements required by this Part.

9.  The qualified person shall provide in the RSC the following information and documents:

1. The name, mailing address, telephone number, e-mail address and fax number of the qualified person.

2. If the qualified person is an employee of a corporation, the name of the corporation and a certified copy of the Certificate of Status of the corporation.

3. If the qualified person is an employee of a partnership or a member of a partnership, the name of the partnership and a certified copy of any Business Names Report, if one exists.

4. The mailing address, telephone number, e-mail address and fax number of the clerk of the local municipality and of the clerk of any upper-tier municipality in which the property is located.

5. The name of the local district office of the Ministry of the Environment in whose territory the property is located.

10.  The qualified person shall certify, in the language set out in this section, the following in the RSC:

1. A phase one environmental site assessment of the RSC property, which includes the evaluation of the information gathered from a records review, site visit and interviews, has been conducted in accordance with the regulation by or under the supervision of a qualified person as required by the regulation.

2. As of [insert the certification date], no phase two environmental site assessment is required by the regulation for any part of the RSC property and based on the phase one environmental site assessment for the RSC property, in my opinion, it is not necessary for any other reason to conduct a phase two environmental site assessment for any part of the RSC property.

3. As of [insert the certification date], in my opinion, based on the phase one environmental site assessment, there is no evidence of any contaminants in the soil, ground water or sediment on, in or under the RSC property that, if the RSC property were put to any of the types of property uses listed in subsection 1 (2) of the regulation, are likely to interfere with any of those types of property uses.

11.  The qualified person shall provide in the RSC,

(a) the total area of the RSC property in hectares;

(b) a list of reports or other documents, setting out title, author and date, relied upon in certifying the information set out in section 10;

(c) the RSC number of any previous RSC that has been filed in the Registry, if the previous RSC applies to any part of the RSC property; and

(d) the transition notice number of any previous transition notice that has been filed in the Registry, if the previous transition notice applies to any part of the RSC property.

12.  The qualified person shall, in the RSC, make, using the language set out in this section, the following statements in relation to the part of the RSC that includes the information, certifications and statements required by this Part:

1. I am a qualified person and have the qualifications required by section 5 of the regulation.

2. I have in place an insurance policy that satisfies the requirements of section 7 of the regulation.

3. I acknowledge that the RSC will be filed in the Environmental Site Registry, that records of site condition that are filed in the Registry are available for examination by the public and that the Registry contains a notice advising users of the Registry who have dealings with any property to consider conducting their own due diligence with respect to the environmental condition of the property, in addition to reviewing information in the Registry.

4. The opinions expressed in this RSC are engineering or scientific opinions made in accordance with generally accepted principles and practices as recognized by members of the environmental engineering or science profession or discipline practising at the same time and in the same or similar location.

5. To the best of my knowledge, the certifications and statements in this part of the RSC are true as of [insert certification date].

6. By signing this RSC, I make no express or implied warranties or guarantees.

PART IV
PHA