In Ontario, a Record of Site Condition summarizes the environmental condition of a property at a particular point in time.
In this blog post, we’ll explain what you need to know about the Record of Site Condition process, including what it is, how it works, and how to obtain one.
What is a Record of Site Condition?
A Record of Site Condition is a document that summarizes the environmental condition of a property based on the completion of environmental site assessments completed at a particular point in time. The purpose of a Record of Site Condition is to document a property’s environmental status, including potential contamination on the property. When filed with the Environmental Site Registry, these documents certify the environmental condition of a property.
Once filed, a Record of Site Condition may provide protection or immunity against certain types of orders made by the Ontario Ministry of the Environment, Conservation and Parks. This protection is not absolute; there are exceptions and, in particular, there is no protection or immunity from migration of contaminants offsite after the filing date or from third party claims.
When Do I Need a Record of Site Condition?
Generally speaking, a Record of Site Condition is required when a party intends to change land use to a more sensitive use. For example, some of the following situations would typically require a Record of Site Condition:
- Changes in Property Use: If a property that was previously used for industrial or commercial purposes is being converted to an institutional, residential or parkland use, you will likely be required to complete a Record of Site Condition.
- Redevelopment of Property: If a property is being redeveloped, a Record of Site Condition may be required by a municipality. Other interested parties, such as lenders, may also request the completion of a Record of Site Condition for the redevelopment of a property or for a specific project.
How Do I Obtain a Record of Site Condition in Ontario?
Obtaining a Record of Site Condition is a multi-step process. Below, we’ll provide a brief overview of the key steps involved. Note that, depending on the status of the property, some of these steps will not be required. For further assistance determining the required steps, speak with an experienced environmental law lawyer. You can also review the Ontario Government’s resource, “Submitting a record of site condition,” for a list of common mistakes when preparing Records of Site Condition and how to avoid them.
Phase One Environmental Site Assessment (ESA)
The first step in obtaining a Record of Site Condition is ensuring that you have an up-to-date Phase One Environmental Site Assessment (and obtaining one if you do not). In this step, the applicant obtains an assessment of the property, including a records review, interviews, site visits, and preparation of a Phase One Environmental Site Assessment report. There may be other circumstances when a Phase Two Environmental Site Assessment is required.
Remember that Environmental Site Assessments must be conducted by a “qualified person”, as defined by the Environmental Protection Act, R.S.O. 1990, c. E.19. A qualified person is deemed to be one of the following:
- A person who holds a licence, limited licence or temporary licence under the Professional Engineers Act; or
- A person who holds a certificate of registration under the Professional Geoscientists Act, 2000, and is a practicing member, temporary member or limited member of the Association of Professional Geoscientists of Ontario.
Phase Two Environmental Site Assessment (ESA)
If a Phase One Environmental Site Assessment identifies potential contamination on the property in question, the applicant must also obtain a Phase Two Environmental Site Assessment.
A Phase Two Environmental Site Assessment involves a more thorough investigation into the level of contamination on the property. This includes sampling the soil, groundwater, or other relevant aspects of the property to confirm whether the site is contaminated and, if so, the extent of the contamination.
Remediation Plan
If a Phase Two Environmental Site Assessment confirms that the property is contaminated and applicable site condition standards have not been met, a risk assessment and remediation of the property may be required.
Preparing and Submitting a Record of Site Condition
Once the appropriate Environmental Site Assessments have been completed and remediation has taken place (if applicable) to meet the applicable environmental standards, the applicant may submit a Record of Site Condition. This document will contain details regarding the Environmental Site Assessments, any remediation activities that have taken place, and confirmation that the property in question is suitable for its intended use.
For further clarity, in a Record of Site Condition, the applicant will include:
- Details regarding the property, including address, legal description, and property identification number (PIN);
- Details regarding the Phase One and Phase Two Environmental Site Assessments, including the dates the assessments took place and key findings;
- Details regarding any remediation work undertaken on the property or the results of a risk assessment;
- A confirmation that the property meets the required standards.
The Record of Site Condition will also need to be signed and certified by a “qualified person” as defined by the Environmental Protection Act, R.S.O. 1990, c. E.19.
Filing a Record of Site Condition
A Record of Site Condition is submitted tothe Ministry of the Environment, Conservation and Parks for filing. The time from the submission to the filing date can be potentially a lengthy process. Once filed, the Record of Site Condition is available on the Environmental Site Registry which is available for public review.
How the Record of Site Condition Registry Works
The Environmental Site Registry is a publicly available resource that allows anyone to obtain information about a property that has received a Record of Site Condition. Here, the public can access the Record of Site Condition through the Ministry of the Environment, Conservation and Parks’s online portal, which includes details of environmental site conditions, remediation activities, and the property’s environmental condition.
Updates to the Requirements for Records of Site Condition
On November 20, 2024, the Ministry of the Environment, Conservation and Parks proposed amendments to Ontario Regulation 153/04: Records of Site Condition which, if passed, may affect the information we have provided in this blog post. Comments on the proposed amendments are due by January 10, 2025.
Experienced Environmental Law Lawyers Assisting with Record of Site Condition Issues in Ontario
At Tierney Stauffer LLP, our lawyers leverage their extensive environmental law expertise to help clients navigate the Record of Site Condition process and various environmental law matters. Our experience in real estate law, construction law, ADR, and litigation allows us to provide clients with effective and practical advice in all aspects of environmental law and develop solutions best suited to our clients’ specific needs. This blog post is not intended to provide any legal advice.
To speak with an experienced environmental law lawyer today, call us at 1-888-799-8057 or contact us online.
