O.Reg 153/04 Technical Guidelines – Ontario’s Environmental Regulations
In Ontario, the standard for the assessment and remediation (cleanup) of contaminated land or groundwater is set out in Ontario Regulation 153/04 (as amended, and known colloquially O. Reg. 153).
O. Reg. 153 provides land owners with protection from future liability through a Record of Site condition(RSC), acknowledged by the Ministry of the Environment and Climate Change (MOECC). An RSC shows that the landowner has followed the prescribed process for assessing and managing environmental issues on the site, and represents the standard for environmental due diligence in Ontario, in most cases.
The RSC process described in O. Reg. 153 is prescriptive and lays a framework for managing risk associated with environmental issues. It includes:
- Phase I Environmental Site Assessment (ESA)
- Phase II ESA
- Phase III ESA, also called a Record of Site Condition (RSC)
Some or all of these phases are required for obtaining an RSC. An RSC is not mandatory in every case, but is recommended in most. It is required when certain property development activities are desired on the site, such as changing property use from less sensitive uses to more sensitive uses (like industrial to residential) or may be required for rezoning, financing, or land transfer.
A Phase I ESA is mainly a historical review of the site’s past use and identification of areas of environmental concern. In O. Reg. 153, a list of potentially contaminating activities (more than 70, from dry cleaning to auto work to manufacturing) flags sites that require further investigation.
The Phase II ESA involves intrusive investigation into the soil to quantify any environmental impacts, and the Phase III brings the site into acceptable quality to meet established standards in order to warrant an RSC. When your environmental consultant (should be a Qualified Person under O. Reg. 153) recommends that the MOECC issue an RSC for the site, the MOECC will review the RSC, and either acknowledge it and file immediately, request further investigation, or carry out an audit before filing it to a public registry (Environmental Site Registry).
If you own property in Ontario, the steps prescribed in O. Reg. 153 are an important part of your due diligence and will protect you from liability in the present and in the future.