Amendments to Reduce Records of Site Condition That Are Not Supporting Brownfields Redevelopment

Introduction

Ontario is committed to reducing regulatory burdens across industry sectors to accelerate the development of housing, highways and other critical infrastructure while continuing to protect the environment.

To advance this goal, the Ministry of the Environment, Conservation and Parks (ministry) is proposing amendments to Ontario Regulation 153/04: Records of Site Condition (RSC Regulation) that would remove barriers to redeveloping brownfields and commercial buildings, to enhance residential uses, while continuing to ensure that human health and the environment are protected.

These proposed regulatory amendments are based, in part, on proposed legislative amendments to the Environmental Protection Act (EPA) that are concurrently proceeding through the legislative process.

The proposed amendments to the EPA would add authority for the Lieutenant Governor in Council to make regulations setting out circumstances in which an owner of a property is prohibited from submitting an RSC for filing in the environmental site registry. This proposed amendment has been included in Bill 227, the proposed Cutting Red Tape, Building Ontario Act, 2024 (a link is provided below). The proposed regulatory amendments that would use this authority are the focus of this ERO posting; they could only be made if those legislative amendments are passed.

This 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)

1. Prohibiting the filing of RSCs in specified circumstances

An RSC is a document that summarizes the environmental condition of a property as determined by a qualified person by conducting studies called environmental site assessments (ESAs). There are two types of ESAs: phase one ESAs and phase two ESAs. Filed RSCs appear in a public online registry called the RSC registry.

The EPA and Ontario Regulation 153/04: RSC Regulation set out when an RSC is required to be filed in the RSC registry. Generally, 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, or 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.

Some RSCs are submitted for filing when this is not required by the EPA and RSC Regulation. In some cases, an RSC is required by another party, to address perceived risks associated with potential contamination. Examples of contexts in which this occurs include land use planning approvals where the RSC is requested by a municipality to ensure a property is appropriate for a new land use, and financing, where an RSC is used to support an application for financing for developments on properties that had historic contamination. Some property owners choose to submit RSCs for filing on their own initiative to, for example, support a property transaction or receive limited regulatory liability protection for historic contamination.

Stakeholders have flagged that in some cases, when another party requires an RSC and the EPA and RSC Regulation do not, the RSC may be unnecessary. For example, for land conveyances where there is no known contamination or past activities that suggest potential contamination.

In response to this concern, it is proposed that the RSC Regulation be amended to prohibit an RSC, that was not otherwise required by the EPA or RSC regulation, from being submitted for filing in the RSC registry if the RSC was prepared solely on the basis of a phase one ESA, meaning that no potentially contaminating activities or areas of potential environmental concern were identified for that property. An exception to this prohibition is proposed that would allow a property owner to submit an RSC for filing based on a phase one ESA if it is not as a result of a requirement of another person. For example, if a municipality seeks to require an RSC to be filed as a condition of a site plan approval under the Planning Act, this would generally be prohibited if the RSC would be based solely on a phase one ESA. But if the owner of a property wants to file the RSC at their own discretion, the owner would be permitted to do so, despite this prohibition in the regulation.

RSCs would continue to be a valuable tool to support brownfields redevelopment. If the proposed regulation is made, where an RSC is not otherwise required by the EPA or RSC Regulation, but a phase two ESA (or phase two ESA and risk assessment) was required to be prepared, an RSC may still be submitted for filing.

2. Expanded exemption from RSC filing requirements for changes to existing commercial or community use buildings

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 ministry 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 upper floors and commercial on the bottom level, without the need to have an RSC filed in the RSC registry first.

The ministry is also proposing to modify the restrictions on changes to the building envelope and on additions on 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 for the purpose of meeting 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.

These proposed regulatory amendments would come into effect upon filing.

Regulatory impact statement

The proposed amendments aim to offer cost and time savings by removing the ability to submit an RSC for filing in certain situations where an RSC is unnecessary to assess potential contamination, expanding an existing exemption from RSC requirements, and directly addressing concerns heard from municipalities and builder stakeholders. The proposed amendments would support development of residential units, particularly through the conversions of office space within existing buildings to residences.

This proposal would not have a significant environmental impact as requirements for submitting an RSC for filing would remain in place where contamination in the soil or groundwater is a concern, and by ensuring that important requirements associated with proposed exemptions remain in place.