Changes to Ontario’s Records of Site Condition May Help Redevelopment

Posted by on Jan 22, 2025 in Blog | 0 comments

 

Developing property in Ontario can, at times, be time-consuming and expensive, especially if the project involves filing a Record of Site Condition (RSC).  There may be some relief as The Ontario Ministry of the Environment, Conservation, and Parks (MECP) is proposing amendments to Ontario Regulation 153/04.  These proposed changes will prohibit the submission of an RSC for filing in specified circumstances and expand an exemption from RSC filing requirements for changes in the use of buildings from commercial or community use to mixed-use, including commercial or community with residential and/or institutional uses.

When is a Record of Site Condition Required?

Currently, an RSC is required before a person can change the use of a property from a less-sensitive use (i.e., industrial, commercial, or community property use), which is more likely to have resulted in contaminants being present on, in, or under the property, to a more-sensitive use (i.e., residential, parkland, institutional, agricultural, or other property use).  An RSC is also required before a person can construct a building if the building will be used in connection with such a change in property use (Source:  Environmental Registry Ontario – ERO).

To obtain an RSC, a “qualified person” must prepare a Phase One Environmental Site Assessment (ESA) to determine the possibility of “contamination at the site.”  If the Phase One ESA concludes there is potential contamination, a Phase Two ESA is conducted (e.g., soil and groundwater sampling).  If contamination is identified, “…to obtain an RSC, the risk of contamination to the natural environment and human health must (generally) be mitigated through remediation or other measures” (Cassels).  The RSC, which goes to the MECP, can take months to years to be turned around.

What are the Proposed Changes to the RSC?

As provided in the Environmental Registry Ontario in November 2024, the proposal to amend the RSC Regulation has two components:

  1. To amend the RSC Regulation to prohibit the submission of a record of site condition (RSC) for filing in the environmental site registry (RSC registry) in specified circumstances when the RSC is not necessary to assess contamination and support brownfields redevelopment (this component depends on the proposed legislative amendment), and
  2. To expand the exemption from RSC filing requirements in paragraph 2 of subsection 15 (1) of the RSC Regulation, for changes to the use of commercial and community-use buildings to mixed-use, with residential or other sensitive uses (this component does not depend on the proposed legislative amendment).
Man with clipboard at construction site

The Ontario Ministry of the Environment, Conservation, and Parks (MECP) is proposing amendments to Ontario Regulation 153/04 (Image by Alexander Fox PlaNet Fox from Pixabay).

Prohibiting RSCs in Specific Circumstances

In a blog by Cassels, they state, “The proposed amendments to the Regulation intend to prohibit filing an RSC when it is not required under the EPA (Environmental Protection Act) but instead is being required by another party.  The amendment is intended to eliminate RSCs for low-risk sites.  The Ministry has cited land use planning approvals and financing as two contexts where a requirement for an RSC may not be necessary.”

As such, if a Phase One ESA does not identify any potentially-contaminating activity or areas of potential environmental concern, no one (including the local municipality or the lender) can require an RSC.

The exception is that property owners can choose to submit RSCs for filing on their own initiative to, for example, support a property transaction or receive limited regulatory liability protection for historical contamination (Source: ERO).

With these changes, it is expected that there will be greater emphasis on the results of the Phase One/Two ESAs and on peer reviews (also see Cassels).

Expanding “Mixed Use” RSC Exemption

Currently, paragraph 2 of subsection 15 (1) of the RSC Regulation exempts from RSC filing requirements the change in property use of existing buildings used for commercial or community use if the following criteria are met:

  • After the change, the property will continue to be used for commercial or community use, but with the addition of residential use, institutional use, or both;
  • Before and after the change, the building must have no more than six storeys;
  • The change in use (i.e., the intended residential or institutional uses) must be restricted to the floors above the ground floor;
  • The property on which the building is located cannot be, and cannot have been historically, used for an industrial use, a garage, a bulk liquid dispensing facility, or for the operation of dry-cleaning equipment;
  • The building envelope will not change and there will be no additions to the exterior portions of the building.

The MECP is proposing to remove the six-storey height limit.  This would allow a taller building (for example, an existing office tower) to be changed to mixed-use with residential on the upper floors and commercial on the bottom level without needing an RSC.

The ministry is also proposing to modify the restrictions on changes to the building envelope and on additions to the exterior of the building.  Additions to the exterior of the building would be allowed on floors above the ground floor.  On the ground floor, additions solely to meet current standards for safety and accessibility would be permitted, as would attached outdoor structures such as a portico.  This flexibility would enable more buildings to take advantage of the exemption.

The other conditions would remain in place, as they were designed to mitigate any risks associated with potential contaminants in the soil or ground water beneath the building (Source:  ERO).

The comment period for these proposed amendments closed on January 10, 2025.

These appear to be common-sense changes to the RSC process and have received at least one endorsement (Ontario Federation of Agriculture).  Further, the changes may be helpful in redeveloping low-risk sites in Ontario.

If you have questions about a Phase One/Two ESA or RSC, contact Christopher Paré, P.Geo., Q.P., at 519-948-7300, Ext. 114.

Dragun Corporation does not use artificial intelligence to draft our blogs or any other material.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for more than 45 years.  He has written hundreds of blogs and articles.  His published work includes HazMat Magazine, BizX Magazine, Michigan Lawyers Weekly, GreenStone Partners, Manure Manager Magazine, and Progressive Dairy.

Christopher Paré, P.Geo, reviewed this blog.  Chris is a senior geoscientist and manager of Dragun’s Windsor, Ontario, office.  Chris has more than 30 years of experience on projects ranging from environmental site assessments (Phase One/Two ESA), excess soils, remedial investigations, soil and groundwater remediation, Permits to Take Water, Records of Site Conditions, vapour intrusion, and site decommissioning.  Chris is a frequent speaker, author, and expert witness.  See Chris’ bio.

Follow Dragun Corporation on LinkedInX, or Facebook.

Sign up for our monthly environmental newsletters.

Principled Foundation | Thoughtful Advice | Smart Solutions

Established in 1988