Frequently Asked Questions

General

What are brownfields?

Brownfields are former industrial lands, now vacant or underused, with potential for redevelopment. They may be contaminated due to past or present activities, and may include properties such as closed factories, gas stations and waterfront lands formerly used for commercial port operations. Left idle and unmanaged, brownfields pose risks to human health and the environment because of the potential for contaminated materials being left behind.

Why is brownfields redevelopment important?

Redeveloping brownfields is good for the environment. It reuses land to make way for new sustainable communities with houses, offices, schools and recreation centres close to public transportation and other services.

Redeveloping brownfield properties:

improves air, water and soil quality
curbs urban sprawl
protects valuable green spaces and agricultural lands
supports local economies by promoting urban intensification
encourages efficient reuse of lands, buildings and infrastructure

What were the key issues addressed through recent brownfields regulatory amendments made to Ontario Regulation 153/04?

The amendments improved the existing brownfield regulation by increasing certainty in the Ministry of the Environment’s (the ministry) record of site condition (RSC) process, as well as improving the quality of the work completed, i.e. RSCs filed on the public Brownfields Environmental Site Registry.

Based on stakeholder feedback, the ministry made changes needed to encourage and facilitate the redevelopment of brownfields. They include:

Revised standards for 120 chemicals that reflect advances in science and strengthen protection of human health and the environment.
A new streamlined risk assessment (modified generic risk assessment) for some sites which will reduce time for ministry acceptance from 22 weeks to 8 weeks.
Improvements to make the RSC process more predictable and transparent - all RSCs will undergo a check within 30 days before being filed.
Clearer and more flexible requirements for environmental site assessments.
Giving property owners more alternatives for developing site specific standards.

When does the amended Ontario Regulation 153/04 come into force?

Most of the regulatory amendments will come into force on July 1, 2011.

Does Ontario Regulation 153/04 apply if a property owner is not submitting a record of site condition for filing?

No. The provisions of Ontario Regulation 153/04 only apply to the submission or filing of a RSC on the Environmental Site Registry.

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Records of site condition

What is a record of site condition?

A record of site condition (RSC) is a document filed electronically in the Environmental Site Registry (ESR). It is a report documenting the results of one or more environmental site assessments (ESAs) of a property conducted or supervised by a qualified person (QP). The ESA will either confirm that there is no evidence of contaminants at the property that would interfere with any future use of the property or that contaminants at the property do not exceed certain concentration limits (standards). The standards are set based on the intended use (residential, commercial, etc.) of the property and on certain physical characteristics of the property. Where the RSC involves standards, the RSC would confirm that the standards for the intended use had been met.

What is an environmental site assessment?

An environmental site assessment (ESA) involves the study of a property to determine if contaminants are present and, if so, the location and concentration of these contaminants. In addition, an ESA includes the completion of a report documenting the study results.

The Environmental Protection Act defines a phase one ESA and a phase two ESA as follows:

“Phase one environmental site assessment” means an assessment of property conducted in accordance with the regulations by or under the supervision of a qualified person to determine the likelihood that one or more contaminants have affected any land or water on, in or under the property; and,
“Phase two environmental site assessment” means an assessment of property conducted in accordance with the regulations by or under the supervision of a qualified person to determine the location and concentration of one or more contaminants in the land or water on, in or under the property.

These definitions apply only to ESAs prepared in support of the filing of a RSC. ESAs are often prepared in other circumstances. For example, ESAs may be required by financial institutions or municipalities for property transactions. An ESA completed in support of the filing of a RSC must be conducted by a qualified person (QP) who must conduct or supervise the work.

Under Ontario Regulation 153/04, the QP is required to do some of the work directly (such as review and evaluation), while other tasks need only be supervised by the QP.

Who is a qualified person?

A qualified person (QP) who may conduct or supervise an environmental site assessment (ESA) to be used in support of the submission of a record of site condition (RSC) is defined under Ontario Regulation 153/04 as someone:

Who holds a licence, limited licence or temporary licence under the Professional Engineers Act; or,
Who holds a certificate of registration under the Professional Geoscientists Act, 2000 and is a practising member, temporary member or limited member of the Association of Professional Geoscientists of Ontario.

NOTE: You are advised to do your own research to determine the experience, record of success and expertise of individuals whom you are proposing to hire to complete environmental assessment and risk assessment work. The ministry cannot provide recommendations. An individual can start this search but reviewing the RSC’s which have been filed by a QP on the Environmental Site Registry,

How do recent amendments to Ontario Regulation 153/04 affect environmental site assessments?

The amendments include the following:

The replacement of the current cross-referencing to the Canadian Standard Association (CSA) standards [adopted originally for a wide range of environmental site assessments (ESAs), not just those prepared in support of record of site conditions (RSCs)] with detailed, stand-alone rules for ESAs prepared in support of the filing of a RSC. This change will help standardize ESAs, improve their quality, make them more widely accepted, and help all involved know what to do and when;
RSCs will be checked, and or potentially reviewed, before they are filed to the Environmental Site Registry (ESR). Questions about the RSC submission may be asked by the ministry before the RSC is filed;
New circumstances under which a phase two ESA must be completed before a RSC can be submitted have been introduced. As of July 1, 2011, a phase two ESA is required if a potentially contaminating activity (PCA) took place or is occurring at the property. A list of PCAs can be found in Table 2 of Ontario Regulation 153/04. In addition, a phase two ESA may be required if a PCA is identified within the study area; the qualified person (QP) has discretion on whether the PCA would result in an area of potential environmental concern (APEC). If the QP identifies an APEC on the property as a result of the PCA in the study area, the completion of a phase two ESA is mandatory for the filing of a RSC;
The preparation of a “conceptual site model” (CSM) that creates a closer relationship between ESAs and risk assessments and provides a useful tool for QPs to summarize site conditions;
Persons who conduct or supervise ESAs (i.e., QPs) must be members of the Association of Professional Geoscientists or licence holders of Professional Engineers Ontario;
QPs are prohibited from conducting or supervising ESAs if the QP, or the QP’s employer, hold a direct or indirect interest in the property being assessed and a conflict of interest arises;
QPs and owners must retain reports for a specified period of time after they are prepared; and,
QPs and owners are required to take steps to obtain relevant information about the property, and the owners are obliged to provide this to the QP.

What is a contaminant?

The Environmental Protection Act defines a contaminant as follows:

“Contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect.

I own a property. When do I need a record of site condition?

If you are thinking of changing the use of a property you own, then it is important to review the Environmental Protection Act and Ontario Regulation 153/04 (the regulation) to determine if a record of site condition (RSC) must be filed.

Generally, if the property is being used partly or wholly for commercial, industrial or community uses, a RSC is required before the use is changed to one or more of the following: institutional, residential, parkland, agricultural or other uses. The RSC must be obtained before the use changes; however, some steps toward construction are allowed. The regulation (Section 14) and Part XV.1 of the EPA contain detailed provisions, including definitions of each use.

Note: the above provides a general outline of when RSCs must be filed under the EPA; however, RSCs may be required by financial institutions, other lenders or municipalities in other circumstances.

Where do I find the new rules concerning environmental site assessments?

Generally the rules about environmental site assessments (ESAs) are found in Parts VI, VII and VIII, sections 22-33.8, of Ontario Regulation 153/04 (the regulation); and in Schedules D and E of the regulation. Other sections relevant to ESAs include Part I, sections 16, 17, 18 and 55; and Schedule F of the regulation. Phase one ESA rules are mainly found in Parts VI and VII, sections 22-31, and Schedule D of the regulation.

What does the phrase “in, on or under the property” mean?

The phrase “in, on or under the property” is found in a number of places in the EPA and the regulation, including in the definition of a phase one ESA in the EPA. This phrase is used because property may be legally separated from other property horizontally, and the environmental reality is that contaminants are not restricted to these horizontal boundaries. It is also true that they are not restricted to vertical boundaries, but Part XV.1 of the EPA contains detailed rules regarding the presence and movement of contaminants off, or away from, a RSC property.

Generally the phrase “in, on or under the property” means that regardless of whether a property has a horizontal legal boundary or has otherwise been separated from other ‘properties’ on a horizontal basis, the ESAs must take account of things both above and below the property.

Does one need the legal description, legal deed or map of the survey to file an RSC?

The property that is to file an RSC must include the legal description of the property with a copy of the legal deed, The property must have a copy of the map of the survey property completed by a licensed Ontario Land Surveyor, which may include all or part of the property described in the deed.

I own a property and have been told that I need a phase one environmental site assessment. What does this mean?

Under the Environmental Protection Act (EPA), you are not required to file a record of site condition (RSC) or complete a phase one environmental site assessment (ESA) unless you are intending to change the use of the property. If you are intending to change the use of the property, then you must determine if the change is one where a RSC must be filed before the change can occur such as a change from commercial to residential. If a RSC is required, then, at a minimum a phase one ESA which meets the requirements of Ontario Regulation 153/04 (the regulation) must be prepared and a RSC based on this ESA must be submitted and filed before the use can change.

In other circumstances, lenders, insurers, municipalities or other proponents may want you to submit and file a RSC before they take certain actions such as making a loan or granting a planning permission. If you want to submit and file a RSC under these circumstances, even though it is not required under the EPA, the completion of a phase one ESA must meet all of the objectives and requirements of the regulation.

You may also encounter the terms “environmental site assessment” or “phase one ESA” in another context (other than used in the regulation), such as when selling or buying a property when no change of use is involved. In this case, and in any other situation when no RSC is being submitted and filed, it is up to the parties involved to decide what kind of assessment to do and whether to follow the rules for a phase one ESA in the regulation.

If you must obtain a phase one ESA in support of the submission and filing of a RSC, then the QP you retain to complete the ESA must follow the rules in Part XV.1 of the EPA and in the regulation. These are described in detail in Part VII and Schedule D of the regulation but generally involve the qualified person (QP), and others under the QP’s supervision, reviewing records about the property and its history, conducting interviews about the property and its history, doing a reconnaissance of the property and area around it, and determining, on a preliminary basis, whether a contaminant on, in or under the property has affected it.

Why do you have to “submit and file” a record of site condition?

The 2009 amendments to Ontario Regulation 153/04 (the regulation) require the submission of a record of site condition (RSC) before it is filed on the environmental site registry (ESR). Once a RSC is submitted and complete, the ministry will advise you, the owner of the property, within 30 business days whether the RSC has been: (a) filed as is; (b) is being returned because it has not been completed in accordance with the regulation. If the RSC was not completed in accordance with the regulation, your qualified person (QP) will be told the reason(s) why the RSC is being returned; or, (c) whether a review of the RSC will be done.

If a review is being done by the ministry, the owner of the property, will be given a preliminary estimate of the time it is expected the review will take. In addition, the phase one environmental site assessment (ESA) report prepared in support of the RSC and any further ESA reports and other documents relied on by the QP in making “certifications” required when submitting a RSC will likely be requested and looked at as part of the review by the ministry.

The filing date of the RSC is significant because this is when the property owner, and successors are protected, subject to certain conditions, from various orders which could be issued under the EPA or the Ontario Water Resources Act. The filing date is also important because you cannot change the use of the property, where the RSC is one that has to be filed before the change can occur, until the filing date (there are certain exceptions for some preliminary construction activities).

Are there any things I, as the property owner, must or should do when working with the qualified person?

Yes. In addition to: (a) determining whether the qualified person (QP) is a good choice to complete any assessments; and, (b) does not have any relationship, directly or indirectly through his/her employer, to the property that would disqualify the QP from doing the work (i.e., a direct or indirect interest in the property), you need to provide the QP with information about the property, including any required written information. When it comes time to submit the record of site condition, you will need to certify a number of things that are detailed in Ontario Regulation 153/04.

What if there is information that is considered to be unfavourable with regard to the property? What if I, as the property owner, know about this information but I don’t have it myself? Do I have to give it to the qualified person?

If there is information “relevant to [the] record of site condition (RSC)”, then, generally, you must provide it to the qualified person (QP). This includes some information that you do not possess. Information relevant to a RSC includes:

other environmental site assessment reports;
remediation reports;
reports prepared in response to an order or request by the ministry; and,
any other reports relating to the presence of a contaminant on, in or under the phase one property or to the existence of an area of potential environmental concern.

The obligation to provide the QP with relevant information applies to any information you or someone else funding the RSC possesses or controls, so that you are obliged to take steps to provide the information to the QP where someone else has it physically. When the RSC is being submitted you will have to certify you have “conducted reasonable inquiries to obtain” all such information, and that you have or have not obtained all of which you are aware and disclosed it to the QP. So you must let the QP know what you have not been able to obtain as well as provide a copy of what you have obtained.

I, as a property owner, have received a copy of the phase one environmental site assessment report prepared by the qualified person. I also have some other reports I provided to the qualified person. What, if anything, do I have to do with them once the record of site condition is filed?

If any of the reports were relied on by the qualified person (QP) in making a certification in the record of site condition (RSC), you must retain a copy of each report for seven years after the date the RSC was filed. (The RSC form requires the QP to identify these reports.) The phase one environmental site assessment report which supported the submission of the RSC would be one of the reports you must keep.

Does the qualified person have any obligations to obtain particular information?

In addition to detailed rules concerning information to be obtained when conducting or supervising a phase one environmental site assessment (ESA), there are also some general obligations, including the obligation to obtain information that is “reasonably accessible”.

There are a number of criteria for determining whether information is considered to be reasonably accessible including any information:

that someone gives to you, or someone you supervise;
that is publicly available, such as from a library or a government source through access to information legislation; and,
that is relevant to the environmental condition of a phase one property and is within the possession or control of the owner, or someone else funding the phase one ESA. You may be obliged to obtain this information; however, this obligation can be met by obtaining a written statement from the owner or person funding the phase one ESA.

The written statement must: (a) state that the information has been provided to the qualified person (QP), or someone supervised by the QP; (b) describe the information provided; (c) provide details of any other information of which the owner, etc. is aware of; and, (d) state that all of the information of which the owner, etc. is aware of has been included in the statement.

What questions should I, as a qualified person, or ask myself if I have been retained to conduct or supervise a phase one environmental site assessment?

If you are a qualified person (QP) retained to conduct or supervise a phase one environmental site assessment (ESA), there are a number of questions to ask yourself. The following is a sampling of questions; it is not intended to be complete.

Is this ESA in support of the submission of a record of site condition (RSC)?
If the answer is yes, then the requirements of Ontario Regulation 153/04 (the regulation) and Part XV.1 of the Environmental Protection Act apply. If the answer is no, then the requirements do not apply.
Do you or your employer have a direct or indirect interest in the property being assessed?
You must determine the answer. If the answer is yes, you may not accept the engagement.
How do I begin to complete a phase one environmental site assessment?
You must complete a preliminary records review.
Is there a “phase one environmental site assessment” already prepared?
If there has been previous work or a previous report completed, you will need to determine a number of things. For example, does the work or report meet the requirements for a phase one ESA. This will involve reviewing Parts VI and VII of the regulation as well as Schedule D of the regulation. There are at least four things to determine:
- Although you have not conducted or supervised the completion of the work or report, is the report and the work underlying the report something that could be used to submit a RSC?;
- Can a RSC be submitted based on this report alone (there is no other information contained in other reports that is necessary to meet the requirements/objectives of the regulation)?;
- If the answer to the questions above is yes, then you must complete the steps required before a QP may use the work of another QP who actually conducted or supervised the work; and,
- If the answer to either of the above questions is no, then you must determine what further work needs to be done (what requirements or objectives must be met) before the previous work or a previous report can be used to submit a RSC.
I have an “old” phase one environmental site assessment report. What can I do with it?
If the report is 18 months or older, since the last work on the records review, the interviews and the site reconnaissance was done, you will need to do an update. The extent of the update will depend on the circumstances. For example:
- Where a phase one ESA, including the report: (a) meets the new requirements of the regulation; (b) the last work was completed just over 18 months ago; and, (c) there have been no changes at the property, the update could possibly consist of a letter outlining and documenting these facts.
- Where, on the other hand: (a) circumstances have changed; (b) more time has passed; and, (c) the last work was completed five years ago, the update would most likely be extensive (and may require additional field work). In this situation, it may be more practical to complete a new ESA.

I am a qualified person who is leaving my employer/shutting down my firm. What, if anything, must I do with old environmental site assessment reports?

You must either retain a copy of any report you relied on in making a certification in a record of site condition (RSC), or take all reasonable steps to ensure that your employer retains any such report, for seven years after the date the RSC was filed.

A record of site condition has been filed. Since then, (a) the owner’s address has changed; or (b) a municipal address has been assigned to the record of site condition property. Is a new record of site condition required to reflect these changes?

No, you can contact the ministry and request that the Director make a change to the filed record of site condition (RSC). This can be done without filing a new RSC in either of the above circumstances and several more outlined in Ontario Regulation 153/04.

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Record of site condition submission process

If I am planning to file a record of site condition before July 1, 2011, can I use the current requirements for phase one and two environmental site assessments?

Yes. You must meet the current requirements. In addition, if you are planning to file the record of site condition (RSC) before July 1, 2011, you will need to ensure that the RSC and all supporting documents are provided to the ministry well in advance of this date to ensure the filing can take place before July 1, 2011. For example, the qualified person should budget enough time to address any inconsistencies found by the ministry, and ensure that the ministry can process the RSC and acknowledge it in advance of July 1, 2011. If the ministry receives a RSC and supporting documents on June 30, 2011, for example, it is highly unlikely that the RSC will be acknowledged before July 1, 2011.

If your RSC will be filed on or after July 1, 2011, the phase one and two environmental site assessment work has to meet the new requirements found in the amended regulation.

If I request an interview and the interviewer refuses, is it acceptable to just note the refusal or must the qualified person get an interview regardless of situation?

It is not acceptable to just note a refusal without making all reasonable efforts to ensure an interview takes place. However it is not necessary to get an interview in all cases.

The kinds of persons to be interviewed are described in sections 5 to 7 of Schedule D of Ontario Regulation 153/04.

As noted, in some cases a qualified person (QP) must ensure interviews are conducted. For example:

A current owner or occupant of the phase one property, where one can be identified;
An individual with control or authority over the owner or occupant, where the owner or occupant is not an individual; and,
The key site manager for each use, where the phase one property is currently being used for one or more industrial uses or as a garage; as a bulk liquid dispensing facility, including a gasoline outlet; or for the operation of dry cleaning equipment.

The QP must also make all reasonable efforts to ensure the following persons are interviewed:

Anyone relevant to meeting the general and specific objectives of the phase one environmental site assessment (ESA) as defined by the QP;
The key site manager for each use identified that is no longer being carried on, where all or part the phase one property is being, or has been used, for one or more industrial uses or as a garage; as a bulk liquid dispensing facility, including a gasoline outlet; or for the operation of dry cleaning equipment; and,
If an owner or occupier of the phase one property cannot be identified, an owner or occupant of a property in the phase one study area, and a provincial or municipal official, familiar with the phase one property and its history, as determined by the QP having regard to the objectives of the phase one ESA. More details are provided in Section 6 of Schedule D of Ontario Regulation 153/04.

What is an “enhanced investigation property” and when does this term apply?

An enhanced investigation property is a property that is used, or has ever been used, in whole or in part for an industrial use or any of the following commercial uses:

A garage;
A bulk liquid dispensing facility, including a gasoline outlet; or,
For the operation of dry cleaning equipment.

The term enhanced investigation property applies during the completion of a phase one environmental site assessment. Additional investigations of the phase one property must be undertaken if the phase one property is an enhanced investigation property. For example, additional records review would be required. Also, where the phase one property is still being used for industrial or any of the specified commercial uses, there are additional interviewing requirements.

Can you please explain the 18-month stale date on phase one and two environmental site assessment reports?

Records of site condition submitted for filing as of July 1, 2011 must meet the new requirements. If the date of the last work on all of the components of either the phase one or phase two environmental site assessment (ESA), other than review and evaluation, and the report, was done more than 18 months ago, then you, as the qualified person (QP), will need to do an update and may need to do a new ESA depending on how much time has elapsed. This update might be brief if the ESA meets most of the new requirements. Or the update may require additional ESA work and reporting, if there is a new area of potential environmental concern or if the ESA report does not meet the requirements of the regulation.

What constitutes an “update” for environmental site assessment work?

An update does not necessarily mean starting over. The extent of the update depends on the environmental site assessment (ESA) work and report that has already been completed.

In the case of a phase one ESA, for example, if the date of the last work of the records review, interview and site reconnaissance is more than 18 months ago but there is no new or materially changed area of potential environmental concern, the phase one ESA meets all the requirements, the phase one ESA report is a single document and is the most recent document that meets the requirements, then the qualified person (QP) will be able to prepare a very brief update report. In this situation, the QP would only be required to prepare a short document such as a letter report that details the above facts.

If the phase one ESA does not meet several of the requirements or the phase one ESA report does not meet many of the reporting requirements, more would have to be done. The QP would have to ensure whatever was still needed to achieve the general and specific objectives, and the requirements, of a phase one ESA was done. In this situation, it is anticipated that a new phase one ESA report would likely be written, using information from the previous phase one ESA and new information from new ESA work.

When does the amended Analytical Protocol come into effect?

The 2004 Analytical Protocol applies until June 30, 2011. As of July 1, 2011, the amended Analytical Protocol is in effect. If a qualified person wishes to use an alternate method either before or after July 1, 2011, the laboratory requires the written permission of the Director, as specified in subsection 47(4) of Ontario Regulation 153/04.

Are qualified persons required to report all parameters tested by the laboratory?

Yes, paragraph168.4(2)6 of the Environmental Protection Act requires that the record of site condition (RSC) contain the maximum known concentration for each contaminant for which sampling and analysis has been performed as of the certification date. In addition, clause 47(1)(e) of Ontario Regulation 153/04 requires that the qualified person (QP) ensure that the laboratory is not instructed to exclude, from an analytical report or certificate of analysis, any of the parameters which were analyzed. Therefore the laboratory must report, and the QP must include, the analytical results for all contaminants analyzed in the RSC.

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Soil brought to an RSC property

I am moving soil from one property to another but I’m not planning to submit a record of site condition for filing. What are the rules?

The rules specified in Ontario Regulation 153/04 apply to the submission and filing of a record of site condition on or after July 1, 2011. If you are moving soil for other purposes, please contact the Ministry of the Environment district office located nearest to your property for further guidance.

I am planning to import soil to a property that is the subject of a phase two environmental site assessment, and a record of site condition will be submitted for filing after July 1, 2011. What are the requirements for bringing soil to the property and what analyses does the ministry expect me to undertake prior to bringing the soil to the property?

The rules for soil that is brought to the record of site condition (RSC) property and is to remain there after filing are found in the rules for conducting the investigation, within Schedule E and Parts VI-VIII, and in Part XI, s. 55 of Ontario Regulation 153/04 (the regulation). The rules specify the property characteristics and applicable standards for contaminants. One may refer to the document entitled “Fact Sheet: Bringing Soil to an RSC Property” MOE publication 8429e found on the ministry’s brownfield’s website, found under the publications section.

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Standards

What are site condition standards?

The Soil, Ground Water and Sediment Standards for use under Part XV.1 of the Environmental Protection Act (“Soil, Ground Water and Sediment Standards”) are published by the Ministry of the Environment and referred to in Ontario Regulation 153/04, Records of Site Condition.

These site condition standards (SCS) consider all the various ways humans, animals and plants can be exposed to contamination, and also take into account the broad range of physical conditions that occur across the province, (e.g. from the shallow soils of the Canadian Shield to the deep topsoils of south-western Ontario). Generic standards are developed using a risk assessment model with the goal of providing for any ‘receptor’ that could come into contact with a contaminant the intended protection, regardless of how the contact may occur and whether it does in any specific case. This conservative approach ensures that these standards can be applied generically.

Under the current Ontario Regulation 153/04, there are five (5) SCS tables(2004 standards). As of July 1, 2011, with Ontario Regulation 511/09 amending Ontario Regulation 153/04 coming into force, there will be a total of nine (9) SCS tables(2009 standards).

How are site condition standards related to the filing of record of site condition?

To file a record of site condition (RSC), a Qualified Person (QP), as defined under Part II (6) of Ontario Regulation 153/04, first must determine whether or not the property meets the applicable site condition standards (SCS). Ontario Regulation153/04 specifies SCS, which are primarily specific to land use, ground water potability and type of soil conditions.

What if the property does not meet the site condition standards?

If a property does not meet the applicable site condition standards (SCS), then, the property owner may remediate the property to meet the applicable SCS, or, undertake a risk assessment (RA) to establish Property Specific Standards for that individual property for filing a record of site condition.

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Risk assessments

What is a risk assessment?

Risk assessment (RA) is a scientific process used to describe and estimate the likelihood of adverse effects to human health and the environmental resulting from exposure to contaminants. The purpose of a risk assessment is to develop standards that will protect the people and organisms expected at a property, that is being used for a given purpose, such as residential.

The level of risk afforded by property specific standards derived through a RA is the same as the target level of risk for any of the site condition standards (SCS) published in the document Soil, Groundwater and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act, It is important to remember that The SCS are also derived through a risk assessment model based on typical background ranges from across Ontario.

RA is an option for property owners who want to file a record of site condition (RSC) when their property does not meet the SCS applicable to their site
A RSC can be submitted if the property meets alternative standards that have been specified in a RA accepted by the Ministry of the Environment.

What kind of alternate risk assessments are there and when do they apply?

Under the current Ontario Regulation 153/04, there are four (4) types of alternative risk assessment (RA) procedures:

Limited Scope Risk Assessment (LSRA)
A Modified Generic Risk Assessment or a RA based on a Community Assessment Report (CAR)
Estimation of Natural Local Background concentrations risk assessment
Where background levels are not achievable due to naturally elevated concentrations
New Science Risk Assessment
A RA that uses a computer model that is not available to the public is available to RA practitioners for a fee but has not been used by the ministry; or one that develop a standard for a contaminant where there is no applicable site standard
Wider Area of Abatement Risk Assessment (WAA RA)
A RA where the ministry has identified the RA property to be within a wider area of abatement

To see when the various types of RAs above apply, please refer to Part II of Schedule C and “Procedures for the Use of Risk Assessment under Part XV.1 of the Environmental Protection Act” MOE publication 5404e.

Have the types of risk assessments changed as a result of the recent regulatory amendments to Ontario Regulation 153/04?

As a result of the amendments to Ontario Regulation 153/04 by Ontario Regulation 511/09, the types of risk assessment remain the same, with the following exception that a RA based on a community assessment report or a modified generic risk assessment is classified as a limited scope risk assessment, which means that the review time is reduced to 8 weeks from 16 weeks.

For specific details of these RAs, please refer to Schedule C, Part II, Section 7 of the regulation.

Who is qualified to complete a risk assessment?

Risk assessments must be prepared and supervised by a qualified person who has several years of experience in the field of risk assessment. These qualified persons must meet the specific educational and experience. They are also known as Qualified Persons for risk assessment (QPRA).

Is there guidance available for conducting risk assessments under Ontario Regulation 153/04?

Yes. The ministry has published a document titled, “Procedures for the Use of Risk Assessment under Part XV.1 of the Environmental Protection Act” MOE publication 5404e and several Technical Updates, all of which are available on the ministry’s Brownfield’s website.

For the most part, these documents are technical in nature and intended for qualified persons.

What is the review timeline for risk assessments?

Under Ontario Regulation 153/04 (the regulation), ministry review times for risk assessment (RA) submissions are regulated. In general, RA submission review timeline will be 16 weeks unless:

You are submitting a limited scope RA or an estimation of natural local background RA, for which the review timeline will be 8 weeks;
You are submitting a new science RA and/or a wider area of abatement RA, for which the review timeline will be 22 weeks.

Please also note that the Director’s decision to accept or not to accept the RA must be made within the prescribed regulated timeline. The regulation provides that the review timeline can be suspended if the ministry review finds that the RA is deficient or non-compliant with the regulation. In this situation more information may be required to continue with the review of the risk assessment.

What is a modified generic risk assessment?

A modified generic risk assessment (MGRA) is a new type of risk assessment that uses the “Approved Model” as part of their RA and is submitted to the ministry using a template provided by the ministry.

What is the purpose of the modified generic risk assessment (or Tier 2)?

The purpose of the modified generic risk assessment (MGRA) is to allow for the development of site specific standards using an approved model by the ministry, which, when site conditions allow, removes the inherent conservatism of the generic standards based on site specific conditions, while retaining protection of public health and the environment, The model can be adjusted to match site specific conditions to be supported by site specific data. As with limited scope risk assessment, the ministry’s review timeline for an MGRA will be eight (8) weeks.

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Approved model

What is the approved model?

The approved model was developed by the Standards Development Branch, Ministry of the Environment (the ministry), based on the model used to develop the generic site condition standard (SCS).

The approved model allows the qualified person (QPRA) to modify any one or all of the 11 site parameters, such as soil type, fraction of organic carbon, distance to closest surface water body, minimum depth below grade to the highest water table, aquifer horizontal hydraulic conductivity and gradient and choosing whether to opt into one of the six (6) risk management measures offered for use in a risk assessment to generate property specific standards (PSS). It should be noted that there are specific phase two environmental site assessment requirements that must be followed when using the modified generic risk assessment (MGRA) approved model. Please refer to Table 4 of Schedule E, Ontario Regulation 511/09 amending Ontario Regulation 153/04 for additional details.

A copy of the approved model can be downloaded from the ministry’s Brownfield’s website.

For which types of sites is the modified generic risk assessment approved model expected to be most useful?

The modified generic risk assessment (MRGA) approval model is expected to be most useful for the following sites:

When low to moderate levels of contamination and no free product present on-site; and,
Risk Management Measures (RMMs) are the only RMMs proposed at a site, and owners are willing to opt into them.
- The RMMs in the Tier 2 approved model includes:
  - Hard Cap/Fill Cap
  - Shallow Soil Cap
  - No enclosed building
  - Enclosed building with storage garage
  - Enclosed building with no ground floor residential
  - Modified Ecological Protection

Details of these RMMs can be found in the RMM – description tab of the approved model.

What situations would prohibit the use of the modified generic risk assessment approved model?

The following situations will prohibit the use of the modified generic risk assessment (MGRA) approved model:

If Section 41 applies, such as:
- Surface soil pH <5 or >9; and/or
- Subsurface soil pH <5 or > 11; and/or
- The property is within, or includes, or is adjacent to, or includes land within 30 m of an Area of Natural Significance.

In addition to the above, if any of the following applies, the MGRA approved model should not be used, these include:

The human health receptor characteristics are not adequately represented by those included in the modified generic model.
Exposure to contaminants to receptors at the site is expected to be greater than that described in Rationale for the Development of Soil and Ground Water Standards for Use under Part XV.1 of the Environmental Protection Act, Ontario Ministry of the Environment, 2009 (the Rationale).
The proponent is choosing to use Toxicity Reference Values that are different from those described in the Rationale.
The ecological receptor characteristics for generic valued ecosystem components (VECs) are not adequately represented by those included in the modified generic model.
The hazard assessment for the ecological receptor is different from those documented in Modified Ecological Protection option of the MGRA or the generic exposure model documented in the Rationale.
If the risk assessment is deemed a wider area abatement risk assessment by the local Ministry of the Environment (the ministry) district office.

NOTE: Consultation on the submission of the MGRA should be held with the local ministry district office prior to the submission to deem the applicability on the use of the MGRA.

When using the modified generic risk assessment approved model, how do you model parameters (contaminants of concern) that are not on the list in the model?

The modified generic risk assessment model can be used to develop property specific standards for all substances listed in the Soil, Ground Water and Sediment Standards. For a contaminant of concern (COC) that is not included in this document, a full risk assessment (Tier 3) would have to be performed in order to generate a property specific standard for that COC.

Can you develop property specific standards for more than 10 contaminants of concern using the approved model?

In the approved model, you can choose any of the contaminants of concern (COCs) that are available from the drop-down list. However the approved model currently only allows the user to select up to 10 COCs at a time, thus, if you want to develop property specific standards (PSS) for more than 10 COCs, you will need to run the model a few times.

However, the ministry is currently working on a process so that the QPRA will be able to develop PSS for more than 10 COCs at one time.

I’ve noticed that the modified generic risk assessment approved model does not give much relief on the PHC F2 fraction for ground water, even when I opt into risk management measures.

The Generic (Tier 1) and modified generic risk assessment approved models assume no free product in ground water. For PHC F2 (as well as PHC F3 and F4 fractions), if the ½ solubility (in ground water) is exceeded, the site no longer meets the assumption of no free product. This would trigger the need for a full (Tier 3) RA. Changes to any modelling assumptions related to ½ solubility may be possible on a site-specific basis, but this would need to be reviewed in a full (Tier 3) RA. The ministry is currently working on a streamlined review process for these types of submissions. For further information on this process please contact the ministry’s Standards Development Branch, Ecological Standards Section.

If the water table at my site is higher than 1.5 m below ground level, can I use the approved model?

Provided that the approved model is suitable for use at the risk assessment property, if water table is 1.5 m below ground level or higher, the model can still be used to generate property specific standards. However, the soil vapour screening component of the model will not be available.

Can I use the “Ground Floor Non-Residential” risk management measure at an industrial site where all of my neighbours are also industrial sites?

Provided that the modified generic risk assessment (MGRA) is suitable for use at the risk assessment property, yes. This risk management measure uses the Industrial/Commercial/Community GW2 (ground water to indoor air) component values. GW2 usually defaults to residential values to protect residential neighbours. In most cases, this assumption would not be considered as a risk management measure (and would not be included in a Certificate of Property Use) at an industrial/commercial site. This is because on an Industrial/Commercial/Community site, all ground floors are, by definition, non-residential. However the possibility of off-site exceedence of the applicable site condition standard must still be considered in the MGRA.

Can I use the approved model when ground water is in bedrock?

Provided that the approved model is suitable for use at the risk assessment (RA) property, if your site is a “shallow soil” site (< 2m to bedrock), then yes, you can. Tables 6 and 7 of the Standards are for shallow soils. However, all of the modified generic risk assessment (MGRA) variables that relate to the aquifer properties (e.g., Foc, hydraulic conductivity, gradient) are inappropriate for bedrock aquifers since they assume a porous media aquifer. For Tier 2 to be used with shallow soils (bedrock aquifers), the travel distance in the aquifer from the centre of the contaminated zone to surface water must stay fixed at the generic value of 36.5 m. or else the S-GW3 value becomes invalid and non-conservative. In other situations, the approved model would not be appropriate because your site’s conceptual site model (CSM) would not match that of the generics or MGRA, as groundwater flow in porous media is assumed in those models.

If your site is not a “shallow soil” site, you could choose to use the approved model in a Tier 3 RA submission. The qualified person would need to provide a complete technical explanation as to why using the model, including all assumptions made, is scientifically appropriate. This would require a detailed understanding of how the model works for ground water flow and how it affects resultant soil standards.

If I have a site that is shallow soil property and is within 30 m of a water body, and some contaminants of concerns exceed the current Table 1 background standards, what are my options if I want to file a record of site condition?

If you wish to file a record of site condition (RSC) for the property, you have the following two (2) options:

Option 1: Complete a full risk assessment for the site to generate property specific standards (PSS) for filing RSC.

Option 2: Provided the earlier question regarding whether the approved model is suitable for use at the risk assessment property does not apply, you could choose to use the modified generic risk assessment (MGRA) approved model to generate property specific standards for filing a RSC as the approved model have captured these conditions (shallow soil and within 30 m to a water body) in the model. For additional details regarding the Interim MGRA submission process, refer to this technical update.

If the modified generic risk assessment approved model is used in a risk assessment submitted before July 1, 2011, can the property specific standards generated by the model (including if it is used solely to access new tables or 2009 standards) be used for filing a RSC?

Yes, proponents may use the modified generic risk assessment (MGRA) approved model to access the 2009 standards, including the new Tables (6 to 9). However, this will have to be done as a risk assessment and be submitted to the ministry for review and acceptance.

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Wider area of abatement

When is a property designated as a wider area of abatement (WAA)?

Ontario Regulation 153/04 identifies a number of Alternative Risk Assessment approaches. The Wider Area of Abatement (WAA) is an alternative risk assessment approach. Section 10 of Schedule C of the Regulation states:

10. (1) A risk assessment is a wider area of abatement risk assessment if the ministry has identified the risk assessment (RA) property to be within a wider area of abatement in its comments on the pre-submission form or in a notice issued under subsection 46(2) of the regulation.

(2) If the ministry has identified the property to be within a wider area of abatement, the wider area of abatement risk assessment must include:
(a) Consultation with the applicable Ministry of the Environment District or Regional Office regarding the implications so the risk assessment report recommendations; and
(b) Development and implementation of a public communication plan.

Reasons for considering a property to be in a WAA may include:

Existing Control Documents (example certificate of prohibitions, approval for a landfill or sewage works etc.);
Contamination which extends beyond the property boundary affecting other properties or receptors;
Contamination from an off-site source which comes onto the property (can also be addressed by a flow through RA);
Co-mingled plumes on or off the property;
Proposed risk management measures which may impact beyond the property boundary;
Any kind of action required by a party other than the record of site condition property owner (including acceptance of a standard for adjacent property)l and/or
Community concern.

Can the modified generic risk assessment approved Model be used in a wider area of abatement risk assessment?

If appropriate the model can be used in any kind of risk assessment (RA) with the exception mentioned above. This could include a wider area of abatement risk assessment (WAA RA). However if a risk assessment is submitted as a modified generic risk assessment (MGRA) and it is later determined that it should be a WAA RA, the RA will no longer be a MGRA, and the regulated review timeline would be 22 weeks and not 8 weeks.

How can I find out if my MGRA property is part of a wider area of abatement?

It is recommended that you contact your local Ministry of the Environment District Office before submitting your MGRA. Also, if you determine that there is a likelihood of off-site exceedance of applicable site condition standards due to contaminants at your site, it is recommended that in your MGRA you report on actions taken to reduce this likelihood, and results of consultation undertaken with affected property owners.

What if I submit an MGRA and THEN find out that my site is part of a wider area of abatement(WAA)?

If an MGRA has been submitted with respect to a property which has been or is later identified as being within a WAA by the ministry, then the RA will no longer be a MGRA, but the RA will still be reviewed by the ministry and will be considered as a full RA with a 22 week review timeline. Additional information and work may be requested during the review.

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Pre-submission form

What is the purpose of the pre-submission form?

The pre-submission form (PSF) was developed in response to stakeholder requests for a feedback mechanism early in the risk assessment (RA) process. The PSF allows for early feedback from the Ministry of the Environment (the ministry) on the proposed RA approach. By providing an overview of the problem formulation and conceptual site models, ministry reviewers are able to provide advice to proponents on the requirements of Ontario Regulation 153/04.

Why do I have to submit a pre-submission form along with my modified generic risk assessment?

For all risk assessments (RAs) submitted under Ontario Regulation 153/04 (including modified generic risk assessment (MGRAs)), the submission of a pre-submission form (PSF) is a requirement of the regulation. In the case of a MGRA, the submission of a PSF takes place at the same time as the submission of the RA.

In the future, the ministry expects to have a streamlined online version of the PSF available to qualified persons (QPRAs) submitting an MGRA. It is expected that the online system would streamline the completion of the PSF and MGRA reports. The regulated review timeline for a MGRA will remain 8 weeks from the date of the MGRA submission.

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Certificate of property use

What is a certificate of property use?

A certificate of property use (CPU) is a control document that is issued by the Ministry of the Environment to a property owner in relation to an accepted risk assessment (RA) that is required to implement risk management measures (RMMs). RMMs are implemented on a site to ensure there is no adverse effect associated with the contaminants present on site. The Director who issues the document may also alter the CPU or revoke it.

What may a certificate of property use require?

A certificate of property use (CPU) may require the owner to:

Take any action specified in the CPU necessary in the Director’s opinion to prevent, eliminate or ameliorate (lessen) any adverse effect identified in the risk assessment. This can include installing equipment, monitoring any contaminant or recording or reporting information for this purpose
Refrain from using the property for any use specified in the CPU
Refrain from constructing any building specified in the CPU
Register a Certificate of Requirement (CofR) on title of the property at the municipal land titles office.

A CPU may not require the owner to:

Take any action that would have the effect of reducing the concentration of a contaminant on, in or under the property to a level below the level required to meet the standards specified for the contaminant in the risk assessment.

What other actions may be taken relating to the issuance of a certificate of property use?

The Director may include in the certificate of property use (CPU) a requirement that the owner provide financial assurance for the performance of any action specified in the CPU or measures appropriate to prevent adverse effects in respect of the property, i.e., the property, to which the CPU relates. Whether financial assurance is included with a CPU will be of interest to neighbours and municipalities as well as the owner and the Ministry of the Environment.

Who receives a copy or is given notice of the issuance, alteration or revocation of a certificate of property use?

A chief building official (as defined in the Building Code Act, 1992) of the municipality in which the property is located;
The clerk(s) of the local municipality and any upper tier municipality in which the property is located
Where a board of health planning board or a conservation authority has authority under s. 3.1 of the Building Code Act, 1992,
- The inspector who has the same powers and duties as a chief building official
- The medical officer of health or the secretary/treasurer of the planning board or conservation authority.

What is included in a Certificate of Requirement (CofR)?

A CofR is a document prepared by the ministry and includes a description of the CPU, the Record of Site Condition registration number in the Environmental Site Registry, and the requirement to give a copy of the CPU, before dealing with the property, to every person who will acquire an interest in the property.

How is a Certificate of Requirement (CofR) registered on title?

Documents are now registered on title electronically. The ministry cannot perform such registrations but can authorize the legal counsel of any proponent to do so. Legal counsel of the proponent will provide to the ministry Director who issued the CPU an “Acknowledgment and Direction” form for the Director to sign. Attached to the form is the electronic registration information including a proper legal description (prepared by counsel) and the CofR one page document (prepared by the ministry) as a schedule. Once the document has been registered, confirmation of the registration is sent back to the ministry by the proponent or its legal counsel.

Why is knowing about a certificate of property use important for municipal officials, including building officials?

Some requirements found in a certificate of property use (CPU) might limit or prohibit the property from certain uses. To issue a Building Permit that permits a prohibited building type or use would be an offence prosecutable under the Environmental Protection Act (EPA). It would also become a violation under Section 8(2)(a) of the Building Code Act, 1992, to issue a Building permit without ensuring all applicable law has been met.

Record of site conditions (RSCs) are an exception to prohibitions in the EPA on certain changes in use. So building officials involved in any change in use will want to be aware of whether a RSC is required and, if it is, whether the required RSC has been filed.

As well, whenever there is a risk assessment(RA) and a CPU – which may be the case even where there is no RSC – specific rules can apply to building officials as follows. Where a CPU has a provision requiring an owner not use the RA property for a specified use or construct a specified building, no permit, licence, or approval may be issued under certain provisions authorizing the use of the property for the prohibited use or the construction of a prohibited building. This binds building officials and includes the issuance of building permits. To issue a building permit which contravened this requirement would be an offence under the EPA.

Can a certificate of property use be viewed on the Brownfield Environmental Site Registry?

Yes, the certificate of property use can be viewed as an attachment to the record of site condition on the Brownfield Environmental Site Registry.

Will there be a CPU associated with a MGRA?

Where someone submits a modified generic risk assessment (MGRA), and is using one of the risk management measures (RMM’s) permitted for use in a MGRA, a CPU will be issued based on the RMM’s that were selected in the submission.

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Transition

Can I use the 2009 standards for soil, ground water and sediment prior to July 1, 2011?

The 2004 standards are in force until June 30, 2011. Until the new standards come into force, owners can choose to meet the lower (more stringent) of the 2004 or 2009 standards for all contaminants of concern; however, the maximum concentrations measured in soil, ground water and sediment on, in or under the record of site condition property, as of the certification date will be compared against the 2004 standards.

I understand there are transition provisions on standards. Are there reporting requirements for transitioned phase one and two environmental site assessments as well?

No. There are no transition provisions for environmental site assessment requirements.

Can I use publicly available maps to obtain the geographic coordinates of the centroid of the property?

After July 1, 2011, the use of a Global Positioning System (GPS) receiver to obtain relevant geographic coordinates will be mandatory. Prior to this, the ministry recommends that the qualified person use a GPS receiver.

When is the last date I could file a record of site condition if I wish to use the 2004 Standards and do not file a transition notice with the ministry?

If you are planning to file the record of site condition (RSC) before July 1, 2011, you will need to ensure that the RSC and all supporting documents are provided to the ministry well in advance of July 1, 2011 to ensure the qualified person has budgeted enough time to address any inconsistencies found by the ministry, and that the ministry has sufficient time to process the RSC and acknowledge and file it to the Registry in advance of July 1, 2011. If the ministry receives a RSC and supporting documents on June 30, 2011, for example, it is highly unlikely that the RSC will be filed and acknowledged before end of business that day. Unless a notice has been filed by the owner under section 21.1 of Ontario Regulation 153/04, any RSC that is acknowledged and filed after July 1, 2011 must meet the amended numerical standards.

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General

Records of site condition

Record of site condition submission process

Soil brought to an RSC property

Standards

Risk assesments

Approved model

Wider area of abatement

Pre-submission form

Certificate of property use

Transition

General

Records of site condition

Record of site condition submission process

Soil brought to an RSC property

Standards

Risk assessments

Approved model

Wider area of abatement

Pre-submission form

Certificate of property use

Transition