Guide for completing phase one environmental site assessments under Ontario Regulation 153/04

Disclaimer

This practical guide for the completion of a phase one environmental site assessment describes and comments on certain environmental site assessment requirements in Ontario Regulation 153/04. The guide is targeted at qualified persons conducting or supervising environmental site assessments for the purpose of submitting and filing a record of site condition, but may also be useful for those retaining qualified persons, such as property owners, who wish to have a record of site condition filed.

While the guide does describe and comment on requirements for environmental site assessments, readers are cautioned that this guide contains selective and general information only, and readers may not rely on its contents as accurately or completely setting out requirements which may apply in any particular case. Nor must this guide be taken as legal or other professional advice. Where the guide differs in any way from applicable legislation, the legislation prevails. The conduct of an environmental site assessment and the obtaining of, and acting on, appropriate professional advice while doing so is, and remains, the sole responsibility of those involved with the environmental site assessment.

Ministry of the Environment
Public Information Centre
Tel: 416-325-4000
Toll-free: 1-800-565-4923
E-mail: picemail.moe@ontario.ca
Ministry website

Cette publication hautement spécialisée n'est disponible qu'en anglais en vertu du règlement 441/97, qui en exempte l'application de la Loi sur les services en français. Pour obtenir de l'aide en français, veuillez communiquer avec le ministère de l'Environnement au 416-314-7933.

List of Acronyms

APEC

area of potential environmental concern

COCs

contaminants of concern

CSM

conceptual site model

the Act

Environmental Protection Act

ESA

environmental site assessment

ESR

Environmental Site Registry

Ministry

Ministry of the Environment

PCA

potentially contaminating activity

PCBs

polychlorinated biphenyls

QP

qualified person

RA

risk assessment

RSC

record of site condition

the Regulation

Ontario Regulation 153/04

Selected Definitions from Ontario Regulation 153/04

This section provides a selected list of definitions of terms that appear in Ontario Regulation 153/04. It is important to note that some definitions do not apply to the entire Ontario Regulation 153/04, and the reader is advised to look at the definitions sections throughout Ontario Regulation 153/04 to determine where these apply.

"all reasonable inquiries"

means review of current and historical sources of reasonably accessible information about a property to determine uses and occupancies of the property since the property’s first developed use.

"area of natural significance"

means any of the following:

1. An area reserved or set apart as a provincial park or conservation reserve under the Provincial Parks and Conservation Reserves Act, 2006.
2. An area of natural and scientific interest (life science or earth science) identified by the Ministry of Natural Resources as having provincial significance.
3. A wetland identified by the Ministry of Natural Resources as having provincial significance.
4. An area designated by a municipality in its official plan as environmentally significant, however expressed, including designations of areas as environmentally sensitive, as being of environmental concern and as being ecologically significant.
5. An area designated as an escarpment natural area or an escarpment protection area by the Niagara Escarpment Plan under the Niagara Escarpment Planning and Development Act.
6. An area identified by the Ministry of Natural Resources as significant habitat of a threatened or endangered species.
7. An area which is habitat of a species that is classified under section 7 of the Endangered Species Act, 2007 as a threatened or endangered species.
8. Property within an area designated as a natural core area or natural linkage area within the area to which the Oak Ridges Moraine Conservation Plan under the Oak Ridges Moraine Conservation Act, 2001 applies.
9. An area set apart as a wilderness area under the Wilderness Areas Act.

"areas of potential environmental concern"

means the area on, in or under a phase one property where one or more contaminants are potentially present, as determined through the phase one environmental site assessment, including through,

1. identification of past or present uses on, in or under the phase one property, and
2. identification of potentially contaminating activity.

"building"

as defined in subsection 1(1) of the Building Code Act, 1992, means:

1. a structure occupying an area greater than ten square metres consisting of a wall, roof and floor or any of them or a structural system serving the function thereof including all plumbing, works, fixtures and service systems appurtenant thereto,
2. a structure occupying an area of ten square metres or less that contains plumbing, including the plumbing appurtenant thereto,
3. plumbing not located in a structure, (c.1) a sewage system, or
4. structures designated in the building code.

"bulk liquid dispensing facility"

means premises at which solvents, gasoline or associated products are stored in one or more storage tanks and dispensed for sale.

"contaminant of potential concern"

includes a contaminant identified as potentially present on, in or under a phase one property in a phase one environmental site assessment report.

"contaminants of concern"

means,

1. one or more contaminants found on, in or under a property at a concentration that exceeds the applicable site condition standards for the property, or
2. one or more contaminants found on, in or under a property for which no applicable site condition standard is prescribed under Part IX (Site Condition Standards and Risk Assessments) of Ontario Regulation 153/04 and which are associated with potentially contaminating activity.

"dry cleaning equipment"

means dry cleaning equipment as defined in Ontario Regulation 323/94 made under the Act [note: O. Reg. 323/94 states: "dry cleaning equipment" means any device used to clean material with dry cleaning solvent or to remove residual dry cleaning solvent from previously cleaned material].

"enhanced investigation property"

means a property that is being used or has been used, in whole or in part, in a manner described in clause 32 (1) (b) to which subsection 32 (2) does not apply; [32(1)(b): "if the property is used or has ever been used, in whole or in part, for an industrial use or for any of the following commercial uses: as a garage, a bulk liquid dispensing facility (including a gasoline outlet), or for the operation of dry cleaning equipment." 32(2): "Clause (1)(b) does not apply if (a) the property is currently used for an agricultural or other use, or a community use, an institutional use, a parkland use or a residential use; and (b) since the latest date on which the property stopped being used for any of the types of industrial or commercial uses described above, a record of site condition has been filed in the Environmental Site Registry under section 168.4 of the Environmental Protection Act for the use described in clause (a)" i.e., an agricultural or other use, or a community use, an institutional use, a parkland use or a residential use].

"environmental site assessment"

means an investigation in relation to land to determine the environmental condition of property, and includes a phase one environmental site assessment and a phase two environmental site assessment.

"first developed use"

means the earlier of,

1. the first use of a phase one property in or after 1875 that resulted in the development of a building or structure on the property, and
2. the first potentially contaminating use or activity on the phase one property.

"garage"

means a place or premises where motor vehicles are received for maintenance or repairs for compensation.

"gasoline"

means a product of petroleum that may include oxygenates and gasoline additives that has a flash point below 37.8°C, that is a liquid at standard temperature and pressure and that is designed for use in an engine.

"gasoline outlet"

means any premises to which the public is invited, at which gasoline or an associated product is sold and is put into the fuel tanks of motor vehicles or floating motorized watercraft, or into portable containers.

"owner"

in relation to a record of site condition or risk assessment, includes a beneficial owner of or receiver in respect of the property for which the record of site condition is submitted for filing, is to be submitted for filing or is filed or for which the risk assessment is submitted.

"PCB"

means PCB as defined in Regulation 362 of the Revised Regulations of Ontario, 1990 (Waste Management PCBs) made under the Environmental Protection Act.

"phase one property"

means the property that is the subject of a phase one environmental site assessment.

"phase one study area"

means the area that includes a phase one property, any other property that is located, wholly or partly, within 250 metres from the nearest point on a boundary of the phase one property and any property that the qualified person determines should be included as a part of the phase one study area under clause 3(1)(a) of Schedule D of Ontario Regulation 153/04.

"potentially contaminating activity"

means a use or activity set out in Column A of Table 2 of Schedule D of Ontario Regulation 153/04 that is occurring or has occurred in a phase one study area.

"record"

when used as a noun, has the same meaning as "document" in subsection 1(1) of the Environmental Protection Act.

"RSC property"

in relation to a record of site condition, means the property in respect of which the record of site condition is submitted for filing or is filed. In Schedule D of Ontario Regulation 153/04, "sewage" means:

1. a waste of domestic origin that is human body waste, toilet or other bathroom waste, waste from showers and tubs, liquid or water borne culinary and sink waste and laundry waste, and
2. drainage, storm water, commercial wastes and industrial wastes.

In Schedule D of Ontario Regulation 153/04, "sewage works" means any works for the collection, transmission, treatment and disposal of sewage or any part of such works.

"site"

when used in the phrase "site reconnaissance" means phase one study area.

"solvent"

means any volatile organic compound that is used as a cleaning agent, diluent, dissolver, thinner, or viscosity reducer, or for a similar purpose.

"spill"

means spill as defined in subsection 91(1) of the Act, other than a spill of a pollutant comprised solely of odour.

"surveyor"

means a person licensed under the Surveyors Act to practice cadastral surveying in Ontario.

"waste disposal site"

as used in Ontario Regulation 154/03 means a waste disposal site as defined in section 25 of the Environmental Protection Act.

"waste generator"

means a generator as defined in Regulation 347 of the Revised Regulations of Ontario, 1990 (General Waste Management) made under the Environmental Protection Act.

"waste receiver"

means a receiver as defined in Regulation 347 of the Revised Regulations of Ontario, 1990 (General Waste Management) made under the Environmental Protection Act.

"water body"

means a permanent stream, river or similar watercourse or a pond or lake, but does not include a pond constructed on the property for the purpose of controlling surface water drainage.

1. Introduction

The requirements for environmental site assessments (ESAs) completed to support the filing of a record of site condition (RSC) have changed. Some of these changes will affect you if you are a property owner, developer, lender, municipality, or qualified person (QP).

Further changes to ESAs will occur as of July 1, 2011. These changes apply only to ESAs used in RSC submissions, and not where an ESA is being prepared for other purposes (e.g., property sale).

Changes affecting ESAs were made to the Environmental Protection Act (the Act) in 2007: some of these are in effect already; some will come into effect together with changes to Ontario Regulation 153/04 (the Regulation). Such changes will apply to all ESAs prepared in support of RSCs as of July 1, 2011.

Section 168.3(1) of the Act, and the Records of Site Condition Regulation (Ontario Regulation 153/04) define phase one and phase two ESAs and set out rules for their conduct.

Generally, the components of a phase one ESA are the same as in the previous version of the Regulation and are as follows: records review; interviews; site reconnaissance; review and evaluation; phase one ESA report preparation; and delivery of the report to the owner. However, the Regulation contains more detailed descriptions of what each of these "components" includes. For various components, there are also requirements and objectives.

The more detailed rules regarding ESAs are described in the Regulation as requirements. Both objectives and requirements are important. For example, when a RSC is submitted for filing it may undergo a review in which the Ministry of the Environment (Ministry) may identify a defect in the RSC that must be addressed before the RSC can be filed. Failure to meet either an objective or a requirement is considered to be a defect, which could prevent the filing of a RSC.

1.1 Key Features of the Changes Affecting ESAs

The key features of the changes affecting ESAs include:

• The replacement of the current cross-referencing to the Canadian Standards Association (CSA) standards (adopted originally for a wide range of ESAs, not just those prepared in support of 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, and make them more widely accepted;
• RSCs will be checked and 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 the Regulation. In addition, a phase two ESA may be required if a PCA is identified within the study area; the 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. There are exceptions to these rules (see s. 32 of the Regulation for details.);
• The preparation of a "conceptual site model" (CSM). The CSM creates a closer relationship between ESAs and risk assessments (RAs) and is 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 of Ontario (APGO) or licence holders of Professional Engineers Ontario (PEO);
• 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;
• 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 owners are obliged to provide this information to the QP.

1.2 The RSC Process and Changes to the Regulation

This section provides, through a series of questions and answers, information about the RSC process and changes to the Regulation.

What is a record of site condition (RSC)?

A RSC is a document filed electronically in the ESR. It is a report documenting the results of one or more ESAs of a property conducted or supervised by a 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 (ESA)?

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 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 QP who must conduct or supervise the work. Under the Regulation, the QP is required to do some of the work directly (such as review and evaluation), while other tasks may be supervised by the QP.

Who is a qualified person (QP)?

A QP who may conduct or supervise an ESA to be used in support of the submission of a RSC is defined under the Regulation 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 APGO.

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 by reviewing the RSCs that have been filed by a QP on the ESR.

What is a contaminant?

The 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.

For RSCs, the standards for selected contaminants are set out in the "Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act". These standards are referred to as the applicable site condition standards. Some standards will change as of July 1, 2011; however, continued use of the existing standards is permitted if the RSC is submitted before January 1, 2013, provided certain steps were taken by the end of December, 2010, and other requirements were met.

If the applicable site condition standards cannot be met (testing shows concentrations of contaminants are higher than the applicable site condition standards), then a RA may be prepared and submitted to the Ministry. The RA must propose use of a different standard (standard specified in a RA) for the contaminant at the property, taking into consideration the individual characteristics of the property. If the Director accepts the RA, then the standard specified in a RA may be used when submitting a RSC.

If the contaminants at the property meet either the applicable site condition standards or the standards specified in a risk assessment for the contaminant, then a RSC which demonstrates this and meets other requirements, including those for ESAs, may be filed.

It is important to note that applicable site condition standards or the standards specified in a risk assessment are equally protective with respect to the level of risk protection each is intended to achieve.

When do I, as a property owner, need a RSC?

If you are thinking of changing the use of a property you own, then it is important to review the Act and the Regulation to determine if a 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 Act contain detailed provisions, including definitions of each use.

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

Where do I find the new rules concerning ESAs?

Generally the rules about ESAs are found in Parts VI, VII and VIII of the Regulation, (sections 22 to 33.8) 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 of the Regulation (sections 22 to 31) and Schedule D of the Regulation.

Why are there so many uses of "property" in the Regulation?

Ontario Regulation 153/04 contains a variety of terms involving "property". For example, the Regulation refers to RSC property, phase one property, phase two property and RA property. RSCs and ESAs are prepared in relation to a particular property. The preparation of a RSC is also related to either the intended use or all possible uses of the property. In this context, a property may be a legal parcel, part of a legal parcel or a combination of parcels; however, if it is a combination of parcels, each parcel must be owned by the same person or entity.

The "RA property", "phase one property", "phase two property" and "RSC property" may refer to the same property, or to increasingly smaller portions of the same property. The phase one investigations, when carried out before a RA, must be conducted on the entire RA property. However, phase two investigations may subsequently be conducted on the entire phase one property or on only a portion of it. Accordingly a phase two property may include all or a portion of the phase one property. And a RSC property may comprise all or a portion of a phase two property, but it is important to keep in mind the requirements with respect to a RSC property which must be met during a phase two ESA.

In the event that a RA is being undertaken, phase one and phase two ESAs will be required for the entire RA property before the RA is initiated. Before a RSC is submitted, however, there will need to be ESA work (sampling to demonstrate that the standards specified in the risk assessment are met) before a RSC may be submitted.

A RSC has been filed. Since then, (a) the owner’s address has changed; or (b) a municipal address has been assigned to the RSC property. Can changes be made to the RSC without filing a new RSC?

Yes, you can contact the Ministry and request that the Director make a change like this to the filed RSC. This can be done without filing a new RSC in either of the above circumstances and several more outlined in the Regulation. (See s. 8 of the Regulation.) Generally, however, a filed RSC cannot be changed.

I, as a QP, have been retained to conduct or supervise a phase one ESA

If you are a QP retained to conduct or supervise a phase one 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 RSC?

If the answer is yes, then the requirements of the Regulation and Part XV.1 of the 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.

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

Under the Act, you are not required to file a RSC or complete a phase one 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 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 Act, 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 Act and in the Regulation. These are described in detail in Part VII and Schedule D of the Regulation but generally involve the 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 say "submit and file" a RSC?

The amendments to the Regulation require the submission of a RSC before it is filed on the ESR. Figure 1-1 illustrates the submission and filing process. 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; or, (c) has been selected for a review.

If the RSC was not completed in accordance with the Regulation, your QP will be told the reason(s) why the RSC is being returned. If a review is being done by the Ministry, you will be given a preliminary estimate of the time it is expected the review will take. In addition, the phase one 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.

Figure 1-1: RSC Submission and Filing Process

Figure 1-1 Outline

1. RSC Submitted
2. If Complete, 30-day period starts (see O. Reg. 153/04)
   • Acknowledgement of date RSC Filed
   • RSC has not been complete in accordance with regulation
   • Notice of review (Could include field work)
     • Notice of Defect(s)
     • Acknowledgement of date RSC Filed

The filing date of the RSC is significant because this is when you, the property owner, and your successors are protected, subject to certain conditions, from various orders which could be issued under the Act or the Ontario Water Resources Act (OWRA). 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).

The following sections provide a general description of some of the major changes to the Regulation.

1.3 Retention of Reports

Refer to section 18 of the Regulation.

The owner of the RSC property and the QP who signed the RSC must retain and store the reports that are listed in the RSC for a period of seven years after the date the RSC is filed in the ESR.

Example Scenarios

I, as a QP, am leaving my employer/shutting down my firm. What, if anything, must I do with old ESA reports?

You must either retain a copy of any report you relied on in making a certification in a 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.

I, as a property owner, have received a copy of the phase one ESA report prepared by the QP. I also have some other reports I provided to the QP. What, if anything, do I have to do with them once the RSC is filed?

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

1.4 Obligations in Providing Relevant Information and Reports

Refer to section 22(3) of the Regulation.

Owners of the phase one property or any other person funding the phase one ESA are required to provide QPs with information relevant to the environmental condition of the phase one property, if the information is within the possession or control of any of the owners or any other person funding the phase one ESA.

Example Scenarios

Are there any things I must or should do when working with the QP?

Yes. In addition to: (a) determining whether the QP has the required qualifications and experience; 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 RSC, you will need to certify a number of things that are detailed in the Regulation.

What if there is information that is considered to be unfavourable with regard to the property? What if I know about this information but I don't have it myself? Do I have to give it to the QP?

If there is information "relevant to [the] RSC", then, generally, you must provide it to the 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, therefore you are obliged to take steps to provide the information to the QP where someone else physically has the information. 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. 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.

1.5 Reports Required for Submitting a RSC for Filing

Refer to section 28 of the Regulation.

In order to submit a RSC for filing, a phase one ESA must be completed. The minimum reporting requirement to support a RSC filing is therefore the completion of a phase one ESA report. In the simplest case, there will be no previous reports used, or relied on, and a phase one ESA is the only report required.

A phase two ESA is mandatory where the use of the phase one property or any part of it has been, or is, industrial or one of the following commercial uses: as a garage; as a bulk liquid dispensing facility, including a gasoline outlet; or for the operation of dry cleaning equipment.

It is also mandatory where the phase one ESA investigation demonstrates a PCA, present or past, on the property, or one off-property, which has created an APEC on the phase one property.

Note that there are exceptions to the above. See s. 32 of the Regulation for details.

In addition to the mandatory phase two situations detailed in the Regulation, the QP must always consider whether further investigation, such as a phase two ESA, should be conducted before a RSC is submitted.

If a phase two ESA is required, then at a minimum, a phase one and a phase two ESA report are required. However, depending on the complexity of the ESAs conducted, it may be necessary to reference several previous reports of various kinds, including risk assessment reports. If these reports are outdated, the QP may be required to update the information prior to completing the phase one ESA report.

Note that ESA and risk assessment reports are not submitted with the RSC; the reports associated with the completion of a RSC may be requested if a review is being conducted by the Ministry. Risk assessment reports must be submitted to the Ministry; however, this submission occurs in advance of the RSC.

The following reports must be listed in the RSC (in the context of a RSC based on a phase one ESA alone):

• the document used as the phase one ESA report; and,
• any reports or other documents that the QP relied on in order to make the certifications in section 10 of Schedule A of the Regulation and what was used in conducting the phase one ESA.

A report can be used as a phase one ESA report for a RSC if:

• The ESA, including the report, meet the requirements of the Regulation and Schedule D for a phase one ESA;
• The date the last work on all of the records review, interviews and site reconnaissance was completed, is no more than 18 months prior to the submission of the RSC or the commencement of the phase two ESA;
• In the professional opinion of the QP, there is no new or materially changed APEC at the RSC property;
• The report is a single document; and,
• The report is the most recent document that meets all of the requirements.

If any of this is not the case, the QP must complete a phase one ESA update in order to submit a RSC. The QP must carry out and then report on the activities undertaken as necessary to meet any of the following requirements which need to be revisited and met:

• The general objectives of the phase one ESA; and,
• The specific objectives and requirements of the phase one ESA.

Therefore, when submitting a RSC for filing in a situation where the RSC is based on a phase one ESA, there will be one phase one ESA report, and as many updated reports as are required to document any updating work needed.

1.6 Using Old Phase One Environmental Site Assessment Reports

Refer to section 28 of the Regulation.

Section 28 of the Regulation sets out rules for ensuring that the assessment and report used to support the filing of a RSC are up to date. If the last phase one ESA work conducted on all of the records review, interviews and site reconnaissance required for a phase one ESA was completed more than 18 months from the filing of a RSC, or the initiation of a phase two ESA, a phase one ESA update(s) must be completed. The update will ensure that any new or materially changed APEC that has potentially affected the RSC property, or any other unmet objective or requirement, has been investigated and documented. However, if the phase one ESA work was completed less than 18 months ago, but it does not meet one or more requirements of the Regulation (including the report format) the QP must conduct further work. This work must be documented in an update report and, along with the phase one ESA report, must meet the requirements of the Regulation.

The rules are as follows. In order to use a phase one ESA in support of a RSC, or in planning, conducting or supervising a phase two ESA to be used in support of a RSC:

• The date the last work was done on the records review, interviews and site reconnaissance can be no more than 18 months before the RSC is submitted, or the commencement of a phase two ESA ;
• The QP must be of the opinion that there is no new or materially changed APEC at the property;
• The phase one ESA must meet all other requirements of Part VII of Schedule D of the Regulation, including the requirements of a phase one ESA report (see Table 1 of Schedule D of the Regulation for these requirements); and,
• The phase one ESA report must be a single document and be the most recent report which meets the requirements of Part VII and Schedule D of the Regulation for a phase one ESA report.

If any of this is not the case, the QP must first update the phase one ESA by conducting or supervising any portions of a phase one ESA that may be necessary to meet the objectives and requirements for a phase one ESA and its components before either submitting a RSC for filing, or beginning a phase two ESA. In some cases the update may simply state that no work is necessary to meet the objectives and requirements. In other cases, additional work up to, and including, an entirely new phase one ESA may be required. When an update has been done, the requirement that the phase one ESA report must be a single document does not apply. The requirements for the phase one ESA, including the reporting requirements, may be met through the work documented and reported on in the separate documents. However, it is important to remember that the update report must clearly explain how the combined documents meet the requirements and objectives along with the reasons why an update was needed.

Example Scenarios

Is there a "phase one ESA" 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:

1. 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?
2. 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)?
3. 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 (see Section 1.7 below).
4. 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, as a QP, have an "old" phase one ESA 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/objectives 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 may 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 phase one ESA.

Reporting Tip: The QP must document all reports and data consulted, and indicate what was used and how it was used in the phase one ESA.

1.7 When You Are Not the QP Who Conducted or Supervised the Phase One Environmental Site Assessment

Refer to section 30 of the Regulation.

In some instances, property owners may retain multiple QPs to conduct ESA work at a property. As mentioned previously, if you are the QP who has been retained to submit a RSC for filing but you did not conduct or supervise the phase one ESA, you must do certain things before the RSC may be filed or before a phase two ESA may be initiated. This is the case even if the phase one ESA has been recently completed.

First, you must review the phase one ESA and any other material necessary to determine if the phase one ESA meets the requirements of Part VII (sections 23 to 31) and Schedule D of the Regulation. This includes determining if the phase one ESA report meets the requirements for reports (see Table 1 of Schedule D of the Regulation).

You must also determine whether the phase one CSM, part of the report, accurately reflects the current environmental condition of the property, and if there is any need for a phase two ESA. For example, if a new industrial use has occurred on a property since the phase one ESA was done, and the phase one ESA does not identify the need for a phase two, then the CSM must be updated.

In addition, you must determine whether a new or materially changed APEC exists at the phase one property.

Furthermore, where you conclude the following:

• the phase one ESA does not meet the requirements of Part VII (sections 23 to 31) and Schedule D of the Regulation;
• the phase one CSM does not accurately reflect the environmental condition of the property and any need for a phase two ESA; or,
• there is a new or materially changed APEC at the phase one property,

you must also conduct or supervise any additional work on the phase one ESA that is necessary to meet the general and specific objectives, and the requirements, for a phase one ESA (see section 24 and Schedule D of the Regulation).

This provision is not intended to take away from any professional obligations you may have in this situation under the statutes which govern your profession (see subsection 30(4) of the Regulation). The work to be completed may involve the completion of a new phase one ESA (see subsection 30(3) of the Regulation).

The QP should consider whether other provisions involving the use of phase one ESA reports apply. Section 28 of the Regulation applies to work and reports that can be used as a phase one ESA when submitting a RSC or planning, conducting or supervising a phase two ESA in support of a RSC. It may be possible to use the same work to meet obligations which exist under sections 28 and 30 of the Regulation.

If you determine that no further work is needed under section 30 (and 28) of the Regulation, then you and the owner may submit a RSC or begin a phase two ESA, assuming all associated requirements have been met.

2. Overview of Phase One Environmental Site Assessments

Refer to sections 23 to 31 of the Regulation.

Part VII of the Regulation sets out the following:

• the broad sections (the "components") and the purposes (the "objectives) of a phase one ESA;
• ESA work a QP must conduct;
• a QP's overall responsibility for the conduct and supervision of a phase one ESA;
• a QP's overall responsibility for ensuring the ESA meets the requirements of Part VII and Schedule D;
• a QP's responsibility to ensure access to the phase one property;
• requirements that apply where phase one ESA work (records review, interviews, and site reconnaissance) occurred more than 18 months earlier or where other changes have occurred;
• a QP's responsibility to obtain and document reasonably accessible ESA reports, other reports, and data;
• what a QP must do when someone else conducted and supervised the phase one ESA; and,
• requirements when using a report prepared before October 1, 2004.

2.1 General Objectives

Refer to section 24 of the Regulation.

The general objectives of a phase one ESA are specified in section 24 of the Regulation. The QP must ensure that the general objectives of a phase one ESA are achieved. If the general objectives of a phase one ESA are not met, and the Ministry conducts a review of that RSC, it may not be possible to file the RSC.

2.2 Phase One ESA Components

Refer to section 25 of the Regulation.

The components of the phase one ESA have not changed, with the exception of the renaming of site visit to site reconnaissance; they are as follows:

• Records review;
• Interviews;
• Site reconnaissance;
• Evaluation of information from records review, interviews and site reconnaissance and completion of a conceptual site model (CSM);
• Phase one ESA report; and,
• Delivery of report to the owner of the phase one property.

It is important to remember that the site reconnaissance should not be completed without obtaining some background information about the property, including the review of some records. Therefore, a "preliminary records review" must be completed before the site reconnaissance. While this term is not defined, it is expected that a sufficient records review will be done, possibly supplemented by interviews, so that the QP will know enough about the phase one property and phase one study area to identify PCAs and associated APECs. For example, where an industrial use or selected commercial use is occurring at a phase one property, there are additional requirements for a site reconnaissance such as the interviewing of a key site manager for each use of the property.

2.3 Responsibilities of QPs

Refer to section 26 of the Regulation.

Section 26 of the Regulation specifies that a QP must conduct or supervise the phase one ESA. Throughout the Regulation, including Schedule D, certain aspects of the phase one ESA must be conducted by a QP. In all cases, the QP is responsible for ensuring that the phase one ESA is conducted in accordance with the requirements of Part VII and Schedule D.

2.4 Impediments

Refer to section 27 of the Regulation.

The QP is required to identify any physical impediment which interferes, or may interfere with, or limit the ability to: (a) meet the requirements or objectives of a phase one ESA; (b) conduct investigations of the property; and (c) ensure that any such impediment does not preclude meeting the requirement or objectives of a phase one ESA. If access to the property is denied in any respect, it is presumed this is an impediment which precludes meeting the requirements or objectives of a phase one ESA unless the reason is safety or inaccessibility. Where the reason for denial of access is based on considerations of safety or the inaccessibility of the property, the QP must document this. For example, if an inaccessible confined space existed on the phase one property, the requirements do not force the QP to enter this space. However, the QP would need to conduct additional work to ensure the objectives and requirements were met such as interviewing someone familiar with the inaccessible space.

Reporting Tip: Any denial of access must be documented in the phase one ESA report.

2.5 Transition of Reports Prepared Before October 1, 2004

Refer to section 31 of the Regulation.

This section sets out rules that apply when a report completed before October 1, 2004 is being used in support of the filing of a RSC. However, it is expected that this may not occur in practice since all the requirements and objectives of a phase one ESA must be met except for the requirement that the last work of records review, interviews and site reconnaissance must have occurred no later than 18 months before the submission of the RSC. It is unlikely that phase one ESA reports completed prior to October 1, 2004 will be able to meet the requirements of the Regulation.

3. Conducting the Phase One ESA

Refer to Schedule D of the Regulation.

The other major section of the Regulation that focuses on phase one ESAs is Schedule D. Schedule D contains detailed requirements and objectives for the components of a phase one ESA.

The purpose of a phase one ESA is to determine the likelihood that contaminants affecting the phase one property are present on, in or under the property. Focusing in on uses and activities on the property will provide insight into whether there is a potential for contaminants to be present, as well as providing information about the contaminants of potential concern that may be present as a result of those uses and activities.

While the focus of the investigation is on, in or under the phase one property itself, one of the first activities in conducting a phase one ESA is to determine the "phase one study area". This area, located outside of the phase one property, must also be considered because uses and activities in the phase one study area may have affected the phase one property. Further details are provided below.

As part of the changes to the phase one ESA rules, the term "potentially contaminating activity" has been introduced. PCAs can be found in Table 2 of Schedule D. Where there is, or has been, a PCA on, in or under a phase one property, a phase two ESA must be completed before a RSC can be submitted for filing.

The QP must determine APECs associated with the PCA, where the PCA is identified as having occurred on, in or under the phase one property. The identification of APECs will help plan the areas for investigation in the phase two ESA. Throughout the completion of a phase one ESA, the QP will be looking for evidence and insight concerning the likelihood that contaminants affecting the property are on, in or under it. Investigating the types and location of PCAs, and uses at the phase one property will help guide this search.

PCAs located outside of the phase one property (and within the study area) may also be relevant in determining whether a phase two ESA is required. Therefore when investigating the phase one study area, it is important to identify PCAs to determine if a PCA has resulted in an APEC. While a PCA on, in or under the phase one property will automatically result in an APEC, a PCA located within the phase one study area (for example, a gas station located across the street from the phase one property) may also cause an APEC. This determination depends on factors such as ground water flow direction. If the QP determines that a PCA in the phase one study area may be causing an APEC on the phase one property, the completion of a phase two ESA is required.

PCA Tip

The term "bulk storage" is included in a number of instances of potentially contaminating activity in Table 2. While QPs must consider and determine if this activity is occurring or has occurred, the following principles underlie the purpose of the term bulk storage and may assist QPs in making decisions with regard to PCA.

• "Bulk" is meant to indicate "large" quantities in terms of storage (e.g. commercial vs. personal) and risk associated with storage of a particular material (e.g., dangerous chemical vs. relatively benign substance).
• Thus "bulk storage", in terms of scale or volume of material can include large numbers, amounts or volumes of material or may be unpackaged or loose goods, or quantities of material for commercial or industrial use, even if the material is packaged in smaller consumer-sized containers.
• Generally, "bulk" quantities would not be associated with small scale residential use. For example, storage of several 44 gallon drums of fuel oil would be considered "bulk storage"; however, a typical jerrycan of fuel stored in a residential garage would not be considered "bulk" storage.
• "Bulk" volume can be associated with risk. For example, storage of a small amount of a chemical with a high potential for environmental degradation can be considered bulk storage.

Ultimately, the QP must determine if the material being stored is of a volume that may be considered "bulk" considering the context of the storage and the ability for the material to, if discharged, result in the potential for an adverse effect to soil, sediment and/or ground water.

Schedule D is structured by defining requirements and objectives for each component of a phase one ESA, beginning with the records review.

3.1 Records Review

The records review sections (see sections 2 and 3, Schedule D) detail the associated objectives and requirements. The objectives (see section 2, Schedule D) are related to determining if an APEC exists, and if so, interpreting the APEC, including its location and potential extent on the phase one property.

As part of the preliminary records review (see subsection 3(1), Schedule D), before the site reconnaissance (see section 11, Schedule D), the QP must determine whether the phase one study area should include a property that is not located, wholly or partly, within 250 metres from the nearest point on a boundary of the phase one property (as shown in Figure 3-1). Although the QP must look at all properties within the 250 metres boundary, the QP must also consider properties beyond 250 metres to determine if any such property may be contributing to an APEC on the phase one property. If a property located outside the study area is determined by the QP to be contributing to an APEC on the phase one property, then this property must be included within the phase one study area. In addition, it is important for the QP to determine what properties are adjoining the phase one property as certain requirements apply to these properties.

Figure 3-1: Phase One Study Area

Reporting Tip: Rationale for extending the phase one study area beyond the minimum 250 metres described above must be presented in the phase one ESA report.

The QP must also determine at this stage what the date of the property’s "first developed use" is.

First developed use is defined (see section 22(1)) as the first use of the property after 1875 that resulted in a building or structure or the first potentially contaminating activity, whichever is earlier. This determination will then guide the scope of the remaining investigations.

Schedule D (see subsection 3(2), Schedule D) specifies the various kinds of record searches which must be conducted. It is important to note that if a document is obtained from one source, you do not need to obtain it again from another source. For example, if you obtain and review waste management records obtained from the site there is no need to obtain the same documents through a freedom of information search (see subsection 3(3), Schedule D).

Generally, in addition to determining the phase one study area, the QP should also obtain the information set out in paragraphs 1 to 5 of subsection 3(2) before conducting the site reconnaissance. This information includes: reasonably accessible records, fire insurance plans, an up-to-date chronological chain of title, and copies of reports prepared by or on behalf of an owner of a property. Further details regarding the requirements set out in paragraphs 1 to 5 of subsection 3(2) can be found in the Regulation. This information constitutes, at a minimum, the "preliminary records review" which must be completed before the site reconnaissance (see section 11, Schedule D of the Regulation).

The types and sources of information to be obtained are detailed under various headings including:

• General (paragraphs 1 to 6, subsection 3(2), Schedule D);
• Environmental source information (paragraphs 7 to 8, subsection 3(2), Schedule D);
• Physical setting sources (paragraphs 9 to 13, subsection 3(2), Schedule D); and,
• Site operating records only applies in certain cases (paragraphs 14 to 15, subsection 3(2), Schedule D).

It is important to read the above information carefully because, in some cases, the record searches cover different areas, such as records regarding: the phase one property; the phase one study area; or, adjoining properties. Table 3.1 contains a summary of these requirements showing whether they apply to the phase one study area, phase one property or adjoining properties.

The records review should provide the QP with an in-depth understanding of the site history, knowledge of the range of contaminants of potential concern (if there are any), and documented facts with respect to actual contamination. A records review is one of the components of a phase one ESA that is required by section 25 of the Regulation. A summary of the records review requirements for the phase one property, properties adjacent to the phase one property and the phase one study area is presented below in Table 3-1 of this guide.

Tables 3-1 A-D: Summary of Records Review Requirements

3.1.1 General Records

Refer to paragraphs 1 to 6 of subsection 3(2) and heading (a) of Table 1 of Schedule D of the Regulation.

The general records requirements are as follows. The QP shall ensure that all reasonable inquiries are made:

• To obtain reasonably accessible records pertaining to the current use or uses and all past uses of the phase one property (including reference to the Catalogue of Canadian Fire Insurance Plans (1875-1975)) to obtain the fire insurance plans for all parts of the phase one property. Note: It is quite common that the location of above ground and underground storage tanks is noted on these plans.

  Reporting Tip: The summary of each fire insurance plan must include:

  • Date and description of the area covered in the plan with reference to the phase one property;
  • Lot and address numbers;
  • Lot sizes and description of structures and other improvements; and,
  • Information obtained through fire insurance plans regarding PCAs and APECs.
• To obtain copies of reports or other documents prepared in respect of all or part of the phase one property by, or on behalf of, a current or any former owner(s) respecting environmental conditions at the phase one property. In other words, you need to make all reasonable inquiries to collect all relevant documents related to the RSC property either from the owner or from other QPs who may have done work on the RSC property.

  Reporting Tip: The QP must provide a list and summary of reports and for each report document the following:

  • The title, date, name of owner or person funding the work;
  • The author of the report; and,
  • A description of data, analysis and findings relevant to the phase one ESA including APECs.
• To prepare an up-to-date chronological chain of title that shows the owners' names and dates of ownership for the phase one property, based on a search of the title dating back to the first developed use of the phase one property. However, where: (a) other information from the records review satisfies the objectives of the records review; and, (b) a title search back to the date of the first developed use would not contribute to obtaining information about the environmental condition of the phase one property, the chain of title is not required to date back to the first developed use of the phase one property.

  Reporting Tip: The summary of the title search of the phase one property must also include:

  • Rationale for selection of title search period; and,
  • Details of any information relied on in lieu of title search back to the first developed use.

Example Scenarios

Does the QP have any obligations to obtain particular information?

In addition to detailed rules concerning information to be obtained when conducting or supervising a phase one 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 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.

3.1.2 Environmental Source Information

Refer to paragraphs 7 and 8 of subsection 3(2) and heading (b) of Table 1 of Schedule D of the Regulation.

This is a review of certain government and agency records. The QP shall ensure that all reasonable inquiries are made to obtain the following (unless otherwise noted, for the phase one study area):

• National Pollutant Release Inventory information maintained by Environment Canada. This information can be obtained from Environment Canada’s website;
• PCB information maintained by the Ministry. Current PCB site information will be available on the Ministry’s website in July, 2011. Historical PCB site information can be obtained from the Ministry’s District offices located across the province;
• Various Ministry documents: certificates of approval, permits to take water, certificates of property use or similar instruments related to the environmental condition of the phase one property and any property on, under or adjacent to the phase one property. This information can be obtained from the Ministry’s Freedom of Information Office;
• Inventory of coal gasification plants maintained by the Ministry. This information can be obtained from the Ministry’s District offices located across the province;
• Incidents, orders, offences, spills, discharges of contaminants or inspections where the incident, order, offence, spill, discharge or inspection affects the phase one property and any property on, under or adjacent to the phase one property. This information can be obtained from the Ministry’s Freedom of Information Office;
• Waste management records, including current and historical waste storage locations and waste generator and waste receiver information maintained by the Ministry with respect to the phase one property and any property on, under or adjacent to the phase one property. This information can be obtained from the Ministry’s Freedom of Information Office;
• Reports submitted to the Ministry related to the environmental condition of the phase one property and any property on, under or adjacent to the phase one property. These reports include environmental site assessment and remediation reports. This information can be obtained from the Ministry’s Freedom of Information Office;
• Retail fuel storage tanks information maintained by the Technical Standards and Safety Authority (TSSA). This information can be obtained directly from TSSA;
• Notices and instruments, including records of site condition. This information can be obtained from the Ministry’s Environmental Site Registry;
• Identification of areas of natural significance maintained by the Ministry of Natural Resources; and,
• Landfill information maintained by the Ministry. This information can be obtained from the Ministry’s District offices located across the province.

  Reporting Tip: The QP must provide the list and summary of information or documents referred in Table 3-1 above including:

  • Title of the information or document; and,
  • A detailed description of the data, analysis or findings relevant to the phase one ESA including APECs.

3.1.3 Physical Setting Sources

Refer to paragraphs 9 to 13 of subsection 3(2) and heading (c) of Table 1 of Schedule D of the Regulation.

This is a review of various information sources about the physical characteristics of the phase one property and the phase one study area. The QP shall ensure that all reasonable inquiries are made to obtain:

• A series of aerial photographs of the phase one study area that:
  • Illustrate as much as possible of the period from the phase one property’s first developed use to the time of the phase one ESA;
  • Identify the buildings and structures that were present on the phase one property from time to time throughout this period;
  • Identify PCAs within the phase one study area from time to time throughout this period, such as areas of disturbed soil or fill; and,
  • Identify APECs.

    Reporting Tip: In addition, a description of the aerial photographs in the phase one ESA report must include:

    • A list of the aerial photographs;
    • Rationale for the time period between aerial photographs used;
    • Identification of the source and date of the earliest available photograph; and,
    • A summary of information obtained from the aerial photographs.
• One or more topographic maps (Ontario Base Map series), which illustrate the location of the phase one property in relation to any water bodies in the phase one study area and which document regional topography;
• One or more physiographic maps or other similar documents in order to define regional physiography in the phase one study area and to obtain information about the surficial soil and bedrock in the phase one study area;
• One or more geological maps or other similar document(s) in order to define the regional geology in the phase one study area and to obtain information about the stratigraphy of the overburden, from ground surface to bedrock, including approximate depth to bedrock and type of bedrock;
• Well records and other relevant data (including information obtained through discussions with relevant municipalities) for any operating or abandoned wells on the phase one property or within the phase one study area, including all wells described or defined under the OWRA, in order to identify the presence of such wells and to make appropriate use of the records and data to help determine the hydrogeological and geological characteristics of the phase one study area and describe:
  • the location of any such wells;
  • the stratigraphy of the overburden, from ground surface to bedrock;
  • the approximate depth to bedrock; and,
  • the approximate depth to the water table.

Well records can provide the QP with: (a) insight into potability; (b) whether there may be any improperly abandoned wells and/or wells no longer in use on the phase one property; and, (c) general information on geology in the phase one study area.

Reporting Tip: Any photograph, map or figure included in the phase one ESA report should identify:

• geographic north;
• the scale used;
• the location of the phase one property; and,
• a title that includes a descriptive title, the address (if any) of the phase one property, the name of the QP's firm, company or partnership (if any), and the date the photograph, map or figure was created.

3.1.4 Site Operating Records

Refer to paragraphs 14 and 15 of subsection 3(2) and heading (d) of Table 1 of Schedule D of the Regulation.

There are additional records review requirements when a phase one property is an enhanced investigation property.

In some cases the additional records must be obtained; in others, all reasonable efforts shall be made to obtain them.

Where the phase one property is an enhanced investigation property that is currently being used (in whole or in part) for an industrial use or one of the specified commercial uses, the QP shall ensure that the following site operating records, as are applicable and reasonably accessible (leaving out accessibility through Freedom of Information requests), are reviewed:

• Regulatory permits and records related to APECs;
• Material safety data sheets;
• Underground utility drawings;
• Inventories of chemicals, chemical usage and chemical storage areas;
• Inventory of above ground storage tanks (ASTs) and underground storage tanks (USTs);
• Environmental monitoring data, including data created in response to an order or request of the Ministry;
• Waste management records, including current and historical waste storage locations and waste generator and waste receiver information maintained by the Ministry;
• Process, production and maintenance documents related to APECs;
• Records of spills and records of discharges of contaminants, including records of spills and records of discharges of contaminants of which notice is required to be given to the Ministry under the Act and records of such spills and discharges required to be kept pursuant to Ontario Regulation 675/98;
• Emergency response and contingency plans, including spill prevention and contingency plans prepared pursuant to section 91.1 of the Act, and Ontario Regulation 224/07;
• Environmental audit reports; and,
• A site plan of the facility showing areas of production and manufacturing.

Where a phase one property can be defined as an enhanced investigation property but the relevant use(s) no longer exist, all reasonable inquiries shall be made to obtain and review site operating records, as outlined above, for each such past use.

Reporting Tip: Where applicable, provide a list and summary of the following information in the phase one ESA report:

• The title of the information or document; and,
• A detailed description of data, analysis or findings relevant to the phase one property including APECs.

3.2 Interviews

Refer to sections 4 to 8 of Schedule D of the Regulation.

The purpose of the interviews is to verify and supplement the information gathered in the records review. The interviews can also help to plan the site reconnaissance or to corroborate information obtained from the site reconnaissance. Interviews are one of the components of a phase one ESA which are required by section 25 of the Regulation.

3.2.1 Specific Objectives

The specific objectives of interviews are to:

• obtain information to assist in determining if an APEC exists; and,
• identify details of PCAs or potential contaminant pathways in, on or under the phase one property.

3.2.2 Role of QP

It is the responsibility of the QP to:

• select persons to be interviewed;
• determine the timing and method of the interviews; and,
• select the topics for each interview.

3.2.3 Persons to be Interviewed

The kinds of persons to be interviewed are described in sections 5 to 7 of Schedule D.

In some cases a QP must ensure interviews are conducted. For example, the following persons shall be interviewed:

• 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,
• 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 key site manager for each such use.

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 ESA as defined by the QP;
• 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, a key site manager for each such use no longer being carried on; 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.

Example Scenarios

If I request an interview and the candidate refuses, is it acceptable to note the refusal or must the QP get an interview regardless of the 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.

Reporting Tip: Note all reasonable efforts must be documented in the phase one ESA report in the case where the above persons are not available for interview.

3.2.4 Persons with Specific Knowledge

Where a phase one property is an enhanced investigation property, the owner must provide to the QP any information the owner possesses about persons with detailed knowledge of the industrial or specified commercial uses carried on at the property. The QP shall make all reasonable efforts to ensure that at least one person with detailed knowledge of such site activities is present at the site reconnaissance.

3.2.5 Conduct of Interviews

The phase one ESA interviews shall be conducted as follows:

• The QP (not the person supervised by the QP) must decide on the scope and format for all interviews;
• The actual interview however, may be conducted by the QP, a person supervised by the QP, or both;
• As much as practicable, interviews must include questions about all matters relating to specific observations and investigations at the phase one property and phase one study area (sections 13 and 14 of Schedule D) made during the site reconnaissance, including questions about the former uses of the property. Therefore, interviews shall include the topics set out in sections 13 and 14 of Schedule D before, after, or during the site reconnaissance;
• Questions about all matters relating to specific observations and investigations at the phase one property and phase one study area (sections 13 and 14 of Schedule D) are to be asked during the site reconnaissance if someone is accompanying the person conducting it;
• The questions should also be asked of any other person being interviewed who may be able to answer them;
• The date, place and method of the interview; the name of the person being interviewed; the reason why the person was identified as someone to interview; and all relevant information concerning PCAs and APECs shall be identified, evaluated and noted in writing by the interviewer;
• Information gleaned through interviews shall be compared to other information sources in order to assess the validity of the information from the interview. These comparisons must be documented by the interviewer or other person conducting the comparison; and,
• A written summary of each interview, which shall include consideration of the interviewer’s notes and the assessment of the validity of information from each interview, shall be prepared.

3.3 Site Reconnaissance

Refer to sections 9 to 15 of Schedule D of the Regulation.

3.3.1 Specific Objectives

Site reconnaissance (formerly called site visit) is a required component of a phase one ESA (section 25 of the Regulation). The specific objectives of a site reconnaissance are to:

• determine if APECs exist, through observations about current and past uses and PCAs on, in or under the phase one property and, as practicable, current and past uses and activities and PCAs in the phase one study area; and,
• identify details of potential contaminant pathways on, in or under the phase one property as a result of APECs and contaminants of potential concern.

3.3.2 Obligation of Owner

The owner shall grant access and ensure any occupant grants access to the phase one property to a QP, or person supervised by a QP, to allow them to investigate the entire property (see section 10, Schedule D).

3.3.3 Timing

The site reconnaissance must occur after a "preliminary records review" and must consist of an investigation of the phase one study area on one or more occasions (see section 11, Schedule D).

3.3.4 General Requirements

The QP must ensure that the QP, or someone supervised by the QP, does the following (see section 12, Schedule D):

• Physically attend the phase one property and investigate it;
• Conduct an investigation of the remaining properties within the phase one study area from publicly accessible areas;
• Take the following photographs, and provide them in the phase one ESA report:
  • The phase one property, including the exterior and interior portions of buildings or structures on the property, in order to document any APECs and illustrate any relevant structures and areas of disturbed soils such as fill areas; and,
  • The phase one study area, as practicable, in order to document any PCAs which may be contributing to, or causing an APEC, and illustrate any relevant structures and areas of disturbed soils such as fill areas; and,
• Note the following during each investigation:
  • Date and time of the investigation;
  • Weather conditions;
  • Length of time of the investigation;
  • Whether any facility present on the phase one property was operating at the time of the investigation, where the phase one property is an enhanced investigation property currently being used for an industrial or one of the specified commercial uses; and,
  • Name and qualifications of the person conducting the investigation.
  • Reporting Tip: Prepare a written description and explanation of the above photographs including the orientation with respect to north. This description must relate to other photographs, records and figures.
    • Example: "Photograph 1: View of oil/water separator inside north portion of the garage building looking west. Note minor oil staining and cracks in the concrete floor as identified in the interview with the key site manager."

3.3.5 Specific Observations

3.3.5.1 Structures

The QP must ensure that investigations of structures are sufficient to obtain and document the following (see paragraph 13(1)1):

• a general description of structures and other improvements, including the number and age of buildings;
• a general description of the number, age and depth of below-ground structures;
• details of all tanks, above and below ground, at the phase one property, including the material and method of construction of the tank, tank age, tank contents and tank volume, and whether the tank is in use or not; and,
• any potable and non-potable water sources.

3.3.5.2 Underground Utilities

The QP must ensure that inquiries are made about the type and approximate location of underground utility and service corridors, such as sewer, water, electrical or gas lines, located on the phase one property (see paragraph 13(1)2).

3.3.5.3 Interior of Structures

The QP must ensure that sufficient inquiries about, and as practicable, investigations of the interior of any buildings or structures are conducted so as to identify the following (see paragraph 13(1)3):

• exit and entry points;
• details of existing and former heating systems, including type and fuel source;
• details of cooling systems, including type and fuel source (if any);
• details of any drains, pits and sumps, including their current use (if any), and former use;
• details of any unidentified substances; and,
• details of stains or corrosion on floors, other than from water, when located near a drain, pit, sump, crack or other potential discharge location.

3.3.5.4 Miscellaneous

The QP must ensure that sufficient inquiries about, and as practicable, investigations are conducted to obtain and document the following (see paragraph 13(1)4):

• details and locations of current and former wells described or defined under the OWRA and the Oil, Gas and Salt Resources Act;
• details and locations of sewage works;
• details of ground surface, including type of ground cover, such as grass, gravel, soil or pavement; and,
• details and locations of current or former railway lines or spurs.

Note the definitions of sewage and sewage works in Schedule D, section 1(3).

3.3.5.5 Exterior Observations

The QP must ensure that investigations are conducted outdoors at the phase one property sufficient to identify, locate and document the following (see subsection 13(2)):

• areas of stained soil, vegetation or pavement;
• stressed vegetation;
• areas where fill and debris materials appear to have been placed or graded;
• PCAs;
• water bodies;
• areas of natural significance; and,
• details of any unidentified substances found at the property.

3.3.5.6 Enhanced Investigation Property

The QP must ensure that investigations are carried out at a phase one property being used at the time for an industrial or one of the specified commercial uses to identify, locate and document the following (see subsections 13(3) and 13(4)):

• operations, including processing or manufacturing;
• hazardous materials used or stored;
• products manufactured;
• by-products and wastes;
• raw materials handling and storage locations;
• location and contents of drums, totes and bins;
• details of all oil/water separators including for each separator the location, installation date, source of incoming liquid and effluent discharge location;
• all vehicle and equipment maintenance areas, including locations of maintenance, fluid storage, and waste storage areas;
• details, dates and locations of all spills, materials involved, and volumes of material spilled;
• details and locations of liquid discharge points such as water and French drains; and,
• details of all hydraulic lift equipment, including elevators, in-ground hoists and loading docks.

Where the phase one property is an enhanced investigation property, additional requirements apply as set out in subsection 13(4): when the site reconnaissance is underway, the QP must ensure an investigation is carried out to identify, locate and document the things mentioned in clauses 13(3)(a) to (k) for the former uses to the degree it is practicable to do so; and, information available from the records review and interviews must be used in this investigation.

For example, if a former garage has been demolished, details about hydraulic lift equipment or locations of former underground or above ground storage tanks, oil/water separators and other former infrastructure may not be visible during the site reconnaissance. In this case, information from reviewed records and interviews should be considered and used when conducting the site reconnaissance.

3.3.6 Investigation of Phase One Study Area

For the parts of a phase one study area which are located outside the phase one property, the QP, or someone supervised by the QP, shall carry out investigations to identify, locate and document PCAs, water bodies and areas of natural significance (see section 14).

Note, at a minimum, these investigations must be undertaken from publicly accessible areas (see section 12, paragraph 2).

3.3.7 Written Description of Investigation

The QP must ensure that a written description documenting the observations and investigation of the phase one property and phase one study area, as described above (sections 13 and 14 of the Regulation) is prepared. The written description must include details of each of the investigations and any findings that are relevant to the existence of APECs (see section 15).

If a PCA located outside the phase one property, but within the phase one study area, is identified, it is important to determine if the PCA has resulted in an APEC.

3.4 Review and Evaluation of Information

Refer to section 16 of Schedule D of the Regulation.

The review and evaluation of information relating to the completion of a phase one ESA must be completed by a QP. The QP is required to review, evaluate and interpret the information obtained from the records review, the interviews and the site reconnaissance components of the phase one ESA to achieve the general and specific objectives of a phase one ESA (see section 16(1)). If the information the QP has obtained is insufficient to achieve the objectives, supplemental work must be completed.

It is also at this stage that the drafting of the phase one ESA report will begin. Various elements of this report must be prepared as a result of reviewing and evaluating the information. For example, the QP must prepare a table of APECs and a table of current and past uses of the phase one property, each in an approved form (see Appendix A, Forms A1 and A2), in addition to a phase one conceptual site model (see section 16(2)).

The QP must reach conclusions about certain matters as part of the review and evaluation. If conclusions cannot be reached due to insufficient available information, more information must be obtained. The matters for which a conclusion must be reached, as well as documented, are:

• the existence and location of any APECs on, in or under the phase one property;
• the current and past uses of the phase one property;
• the likelihood that one or more contaminants have affected any land or water on, in or under the phase one property; and,
• whether a phase two ESA is required before a RSC may be submitted for filing with respect to all or part of the phase one property.

Documentation and rationale must be presented for this conclusion in the phase one ESA report. If the RSC is to be submitted for filing based on the phase one ESA alone, rationale must be provided for why the phase one property is suitable for the proposed property use.

The review and evaluation component of a phase one ESA report must include:

• a description of the current and past uses of the phase one property back to the property’s first developed use;
• a list and description of each PCA at the phase one property and each PCA in the phase one study area that may be contributing to an APEC at the phase one property;
• a summary and description of any APECs on, in or under the phase one property;
• a summary, description and rationale for contaminants of potential concern identified with respect to each APEC on, in or under the phase one property; and,
• a discussion and description of how any uncertainty or absence of information obtained in each of the components of the phase one ESA could affect the conclusion.

In the phase one ESA report, the QP must also provide the logic and reasoning used to evaluate the available information and draw conclusions (see section 16(4)). Data sources used in the review and evaluation must be documented (see section 16(5)), including:

• whether the source was from a record, an interview, a site investigation, or a combination of them or another source; and,
• what aspect of each record, interview or observation during a site investigation or a combination of them or other source was relied upon and how it was relied upon.

The QP shall consider and document how any uncertainty or absence of information could affect the validity of the conclusions, tables and CSM described above (see section 16(6)).

3.4.1 Phase One Conceptual Site Model (CSM)

The requirement for a phase one CSM is intended to assist QPs in illustrating the results of the phase one ESA to readers of the phase one ESA report, including the property owner and the Ministry, and to provide a basis for further work, if any is needed. The CSM must consist of one or more figures of the phase one study area that show, identify and/or locate the following information (see section 16(7) and Table 1, sub-heading (iv)):

• existing buildings and structures;
• water bodies located in whole or in part on the phase one study area;
• areas of natural significance located in whole or in part on the phase one study area;
• roads (including names) within the phase one study area;
• areas where any PCA has occurred, and locations of tanks in the phase one study area;
• APECs;
• drinking water wells at the phase one property; and,
• uses of properties adjacent to the phase one property.

The CSM must also consist of narrative descriptions and assessments of the following:

• any areas where PCAs on, or potentially affecting, the phase one property have occurred;
• any contaminants of potential concern;
• the potential for underground utilities (if any present) to affect contaminant distribution and transport;
• available regional or site specific geological and hydrogeological information; and,
• how any uncertainty or absence of information obtained in each of the components of the phase one ESA could affect the validity of the model.

The phase one CSM must be prepared taking into consideration any proposed property use or information available at the time of the phase one ESA regarding potential future property use (see clause 16(8)(b)). See Reporting Tip in Section 3.1.3 of this guide for requirements for figures.

3.5 Soil Brought to the Property

Refer to section 55 and Schedule F of the Regulation

Where a QP has determined that a RSC may be submitted based on a phase one ESA alone, soil that did not originate at a RSC property may be brought from another property to the RSC property to remain there to backfill an excavation or for final grading following the filing of a RSC, if the QP who has conducted or supervised the phase one ESA has ensured that the following requirements have been met in accordance with Schedule F:

• The concentration of each contaminant in the soil to be brought to the RSC property must be equal to or less than the standard for the contaminant set out in Table 1 of the Soil, Ground Water and Sediment Standards;
• Samples must be collected from the soil to be brought to the RSC property;
• The concentrations of contaminants in the soil must be known before any soil is brought to the RSC property in order to determine what contaminants are in the soil, and whether the Table 1 site condition standards can be met;
• The samples that are collected and analyzed must be:
  • representative samples collected for the purpose of determining the concentration of contaminants in the soil to be brought to the RSC property and at locations and frequencies which will be adequate to allow the concentrations of contaminants in the soil to be known;
  • representative samples collected at locations and frequencies, following a plan determined by the QP, which will be adequate to allow the concentrations of any contaminants in the soil to be known;
  • collected for the purpose of determining if contaminants are present in the soil as a result of any PCA or other environmental condition at the property from which the soil originated and at any property at which the soil has subsequently been stored. Additional consideration must be given to any potential contaminant introduced during handling, storage or transportation of the soil before it arrives at the phase one property;
• At least one soil sample must be analyzed for each 160 cubic metres (m³) of soil for the first 5,000 m³ to be assessed at each source from which soil is being brought to the phase one property. At least one sample must be analyzed for each additional 300 m³ of soil; and,
• Analysis of the samples is carried out by an accredited laboratory in accordance with the Analytical Protocol.

Please note that the selection of parameters for analysis should be based on potential contaminants of concern (COCs) resulting from past activities anywhere the soil to be brought to the phase one property had been previously located. This does not imply that all parameters in the Table 1 Soil, Ground Water and Sediment Standards table have to be analysed.

Provisions of Schedule E and sections 47 and 48 of the Regulation applicable to the collection, analysis and recording of samples of soil and the methods of sampling, analysis of samples and reporting of analytical results apply with necessary modifications to the determination of whether soil to be brought to the RSC property meets standards in Table 1 of the Soil, Ground Water and Sediment Standards for the contaminants in the soil.

The QP must ensure that a document which meets the requirements of subclause 10(c)(i) of Table 1 of Schedule E is prepared with respect to the sampling and analysis of soil brought to the RSC property. This document must be submitted along with the other supporting documents for the RSC.

For the purposes of subsection (3), subclause 10(c)(i) of Table 1 of Schedule E shall be read as follows:

• References to section 32 are deemed to be references to section 2 of this Schedule.
• References to "phase two property" are deemed to be references to the "RSC property".
• References to "applicable site condition standard" are deemed to be references to "standard in Table 1 of the Soil, Ground Water and Sediment Standards".

3.6 Phase One ESA Report

Refer to sections 17 to 19 of Schedule D of the Regulation

The QP must prepare or supervise the preparation of a phase one ESA report.

3.6.1 Specific Objectives

As detailed in section 18 of the Regulation, the specific objectives of a phase one ESA report are:

• To document the presence or absence of APECs;
• To provide a record of a phase one ESA of a phase one property that clearly demonstrates in a way that can be assessed, tested and reconstructed, how the phase one ESA was carried out, to document:
  • how the general and specific objectives of a phase one ESA were achieved and how each of the minimum requirements for such objectives were met;
  • whether further investigation is required in order to submit a RSC for filing;
  • that an adequate basis for any further investigation that may be needed; and,
  • that there is a basis for any required certifications.

3.6.2 Sections of Report

The phase one ESA report must be divided into the report sections, headings, sub-headings, appendices, references, and figures, and meet requirements as specified in Table 1 of Schedule D of the Regulation (see section 19, Schedule D). If you wish to add additional report sections, it is recommended that these be placed into an appendix.

Figures, maps, site plans and cross-sections in the phase one ESA report must contain a scale, north arrow and a title block that includes:

• a descriptive title;
• the address, if any, of the phase one property;
• the name of the QP's firm, company or partnership, if any; and,
• the date the figure, map, site plan or cross-section was created.

3.6.3 References

The phase one ESA report must include a list of all documents or data cited in the report.

3.6.4 Appendices

A current plan of survey of the phase one property that has been prepared, signed and sealed by an Ontario land surveyor or, where the phase one property consists of land that is administered by the Ministry of Natural Resources under the Public Lands Act, a description of the phase one property approved by the Surveyor General, must be provided in an appendix. Additionally, a topographic map (Ontario Base Map Series) that includes the phase one study area must also be included in an appendix.

3.6.5 Signatures

Original signatures of the QP who conducted or supervised the phase one ESA must be provided in the phase one ESA report. The QP must also provide a statement confirming that they conducted and/or supervised the phase one ESA and that all findings and conclusions of the phase one ESA are included in the report.

3.6.6 Mandatory Reporting Requirements

In addition to the above requirements, please refer to Table 1 in Schedule D for details on report sections, headings, sub-headings and minimum requirements.

Additional Resources and References

Ministry of the Environment, Environmental Assessment and Approvals Branch,
Program Services Section:
Brownfields Filing and Review
Tel: 416-326-2945

Ministry of the Environment’s Brownfields website

Ministry of Municipal Affairs and Housing’s Brownfields website

Appendix A

Form A1

Notes:

¹ Area of potential environmental concern means the area on, in or under a phase one property where one or more contaminants are potentially present, as determined through the phase one environmental site assessment, including through,

• (a) identification of past or present uses on, in or under the phase one property, and
• (b) identification of potentially contaminating activity.

² Potentially contaminating activity means a use or activity set out in Column A of Table 2 of Schedule D that is occurring or has occurred in a phase one study area

³ When completing this column, identify all contaminants of potential concern using the Method Groups as identified in the "Protocol for in the Assessment of Properties under Part XV.1 of the Environmental Protection Act, March 9, 2004, amended as of July 1, 2011, as specified below:

• ABNs
• CPs
• 1,4-Dioxane
• Dioxins/Furans, PCDDs/PCDF
• OCs
• PHCs
• PCBs
• PAHs
• THMs
• VOCs
• BTEX
• Ca, Mg
• As, Sb, Se
• Na
• B-HWS
• Cl-
• CN-
• Electrical Conductivity
• Cr (VI)
• Hg
• Methyl Mercury
• high pH
• low pH
• SAR

When submitting a record of site condition for filing, a copy of this table must be attached.

Form A2

Notes:

¹ For each owner, specify one of the following types of property use (as defined in O. Reg. 153/04) that applies:

• Agriculture or other use
• Commercial use
• Community use
• Industrial use
• Institutional use
• Parkland use
• Residential use

When submitting a record of site condition for filing, a copy of this table must be attached.

PIBS 8485e