Brownfield Changes: Amendments to the Record of Site Condition Regime

Municipal & Planning Law Blog

May 28, 2007

Bill 187, the budget bill, received Royal Assent on May 17, 2007. Pursuant to this Bill, a number of changes have been made to the Record of Site Condition ("RSC") regime under the Environmental Protection Act ("EPA") and the Ontario Water Resources Act ("OWRA") affecting brownfields.

The changes that are now in force include:

  • Protections for municipalities and conservation authorities from civil lawsuits based on inaccuracies in an RSC where a building permit is issued or the municipality or conservation authority is exercising any duties under the Planning Act or any other Act. (Now 168.4(4) of the EPA)
  • The "reopener" provision has been expanded to include false or misleading certifications in RSCs, in addition to false or misleading statements
  • Clarification of reopeners for changing to a different use than that specified in an RSC
  • Clarification of reopeners for soil management violations
  • The limitation of the existing reopeners, such that if contamination moves offsite as a result of a contravention of a certificate of property use, an order, the soil management or disposal regulations, only the person responsible for the contravention loses the RSC protection.

Other changes that will come into force on a date to be named by proclamation of the Lieutenant Governor include:

  • a new filing system for RSCs (drawing a distinction between submitting for filing and filing)
  • new detailed rules regarding extra searches and certifications by qualified person ("QPs") and thresholds for offsite migration that would trigger a reopener
  • the obligation of owners who file RSCs to obtain and retain reports relied on by the QP for seven years.