1 O. Reg. 153/04 (as amended) & Ontario Building Code Ontario Building Officials Association - 58 th Annual Meeting & Training Sessions, Niagara Falls.

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O. Reg. 153/04 (as amended) & Ontario Building Code

Ontario Building Officials Association - 58th Annual Meeting & Training Sessions, Niagara Falls

September 29, 2014

Jennifer Volpato P.Geo., P.Eng.Guelph District Office, Ontario Ministry of the Environment & Climate Change

These slides provide summary of information about to O. Reg. 153/04 (as amended) and complementary statutory provisions. The slides are provided for educational use, and are not complete or exact reproductions of the legislation. They are not intended, or to be used, as advice, legal or otherwise. Such advice should be obtained from competent experts, including lawyers. Where there is a discrepancy between anything in these slides and a legislative provision the legislation prevails. Ontario legislation may be found at http://www.e-laws.gov.on.ca/index.html.

Agenda

• Introduction:– Proponent vs Compliance Driven– District Engineer Involvement

• Record of Site Condition & the Building Code Act

• Certificates of Property Use

• Case Studies – Streamlined Tier 3– Tier 3

• Questions

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Proponent\Compliance Driven Sites

• For the Ministry, two broad categories:– Proponent driven – Compliance driven

• Proponent driven sites generally have contamination limited to on-site and are going through the Record of Site Condition process under Ontario Regulation 153/04, as amended (O.Reg. 153).

• Compliance driven sites generally have contamination on and off-site and have the potential to cause or are causing an adverse effect.

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Proponent Driven Sites• Protection for property owners from certain orders under the EPA that is contingent upon a record of site condition (RSC) being filed in the Environmental Site Registry:

• http://www.ontario.ca/environment-and-energy/brownfields-redevelopment

• In order to file an RSC, the property must have been properly assessed and shown to meet the soil, sediment and groundwater standards appropriate for the intended/future use of the property (Generic or Property Specific Standards)

• Signed off by a Qualified Person (Engineer or Geoscientist) including certification that the work followed the requirements of O.Reg. 153.

• An RSC is mandatory for land use changes to more sensitive use (i.e. industrial to residential).

• An RSC is optional in other cases although some municipalities and financial institutions require them for their own purposes (non-mandatory filings).

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Compliance Driven Sites• Administered using general provisions under Environmental

Protection Act

– Protection and preservation of human health and the natural environment.– Prohibition for the discharge of a contaminant that causes or may cause an

adverse effect. (s.14)

• O. Reg. 153 sets out soil, groundwater and sediment standards (the generic standards) which apply for sites which are filing a Record Of Site Condition (RSC).

• The extent (i.e. on or off-site), proximity to receptors and the magnitude of the exceedances of the generic standard, among other factors, are used to determine degree of ministry involvement for compliance driven sites.

District Engineer Involvement – Proponent Driven Sites

• Generally only involved with sites that are proceeding to obtain an RSC through a Risk Assessment (RA).

• Pre-consultation: – When asked– Sites considering streamlined Tier 3 RAs

• Review and accept the Risk Management Plans (RMPs)/ associated Risk Management Measures (RMMs).

• Recommend RA acceptance to Director for properties with RMPs/RMMs

• Draft Certificates of Property Use (CPU) and recommend issuance to Director.

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District Engineer Involvement – Compliance Driven Sites

• Are Provincial Officers.

• Manage the more complex sites.

• Assist and provide engineering/applied science advice to the Area Environmental Officers.

• Review/comment on remedial action plans and mitigation measures.

• Help write and/or draft orders.

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What is a Record of Site Condition?

• A Record of Site Condition is a document that provides a summary of the environmental condition of a property as certified by a Qualified Person at a point in time.

• Under XV.1 of the EPA, a Record of Site Condition must be completed and filed in the Brownfields Environmental Site Registry (BESR).

• Provides limited protection from environmental Clean-up Orders

• New regulation amendments came into force July 1, 2011. – NOTE: all RSCs filed before July 1, 2011 are still valid.

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What is Mandatory Filing?

• EPA contains provisions that prohibit certain changes in property use unless an RSC is filed; (s.168.3.1);

• Change in Use - Section 14. of O.Reg.153;

• This prohibition makes it mandatory for a property owner to file an RSC before changing the use of a property to a more sensitive use;

• This prohibition is commonly referred to as the “Mandatory Filing” provision;

• It is Applicable Law under the “Building Code Act, 1992”.

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Building Code ActApplicable Law:

• Section 8 (1) of the Building Code Act requires that a building permit be issued before the construction of a building can commence.

• Section 8 (2) of the Building Code Act requires that the proposed building or construction complies with the list of “applicable law”.

Definition of Applicable Law - Building Code (section 1.4.1.3)

• Section 168.3.1 of the Environmental Protection Act with respect to the construction of a building to be used in connection with a change of use of a property, and,

• Paragraph 2 of subsection 168.6 (1) of the Environmental Protection Act if a certificate of property use has been issued in respect of the property under subsection 168.6 (1) of that Act.

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Property Use Changes Triggering RSC

• Site condition standards are the same for each property use within a category

• A change from a use in category 1 to a sensitive use requires an RSC• Property use changes within these categories do not trigger the

mandatory filing requirements with exception of section 14(10)

Standards Category 1 RSC Required to Cross

to Sensit

ive Property Use

Standards Category 2

Standards Category 3

Industrial Residential Agricultural

Commercial Parkland Other

Community - except section 14(10)

Institutional

RSC Required to Cross to Community uses with youth focus

Community section 14(10):Indoor pools, arenas, enclosed stadium, indoor sports field or gymnasium

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Determining Property Use

• If a property is “unused” and/or vacant:– The property use is considered as the most recent use (an abandoned industrial

property is still an industrial property).

• If a property is going to a Mixed Use (i.e. Commercial to Commercial & Residential):– the most sensitive use needs to be considered.

• Land use in zoning bylaws are NOT used in determining Property Use– It’s the actual current/most recent physical use of the property.

• Property Use definitions under O.Reg. 153 apply• NOTE: zoning by-law definitions for land use may differ

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Non-Mandatory RSCs

• Brownfield redevelopment incentive programs offered often require an RSC.

• Other Municipal requirements may trigger need for RSCs.– i.e. - Change in zoning or a property severance

• Real-estate transactions– Conditions of sale

• Financial Institutions– Mortgages/Refinancing

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Exemptions – Construction

• Building permit can be issued if construction is limited to excavation and shoring (Section 12 - O.Reg. 153)

– Removal of soil, rock or fill for purpose of making an excavation;

– The installation of a retaining structure or other structure:• To support the sides of the excavation;• To assist an investigation in relation to the property; and,• Other activities necessary for purpose of filing an RSC.

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Exemptions – Change in Land Use

1. Person may change property use from railway line to a trail for recreational purposes (Section 13 - O.Reg. 153);

2. Property use from a land filling site approved under Part V. of the EPA to any property use (Section 13 - O.Reg. 153);

3. Where current use is a mixed use building and expanding the existing sensitive use that is restricted to that building (Section 15 - O.Reg. 153);

• Note: this does not apply if mixed uses are found across the property.

Conditional Building Permits

• Section 8 (3) Ontario Building Code Act:

– A conditional permit for any stage of construction may be issued by the chief building official (CBO) under certain conditions.

• Discretion of the Municipality/CBO

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Conditional Building Permits• Involves a written agreement between applicant and municipality and others as

may be required (i.e. upper tier municipalities etc.)

• As per Section 8 (3) (c) the agreement requires that the applicant:– assume all risk in commencing the construction,– obtain all necessary approvals in the time set out in the agreement or, if none, as

soon as practicable,– file plans and specifications of the complete building in the time set out in the

agreement,– at the applicant’s own expense, remove the building and restore the site in the

manner specified in the agreement if approvals are not obtained or plans filed in the time set out in the agreement, and

– comply with such other conditions as the chief building official considers necessary, including the provision of security for compliance with subclause (iv). 1992, c. 23, s. 8 (3); 1997, c. 30, Sched. B, s. 7 (2); 1999, c. 12, Sched. M, s. 5 (1); 2002, c. 17, Sched. F, Table.

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Record of Site Condition Process

• Process includes four main components:

– Environmental Site Assessment(s);– Meeting the Standards OR Generating Property Specific

Standards;– Submit a Record of Site Condition to Ministry; and,– Record of Site Condition filed to the Registry.

Records of Site Condition: A Guide on Site Assessment, the Cleanup of Brownfield Sites and the Filing of Records of Site Condition (October 2004)

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Owner determines need to file

RSC

Owner retains Qualified Person (QP) to conduct a

Phase I ESA

Is a Phase II ESA

needed?

The RSC is filed on the Brownfield

Environmental Site Registry

Does property

meet standards?

Will a RA approach be used?

Owner retains a QP and a Pre-Submission Form is

submitted to MOE

QP completes a Risk Assessment

and submits to MOE

MOE responds to RA and if appropriate

issues a Certificate of Property Use (CPU)

Property is remediated and confirmatory sampling done

Is site remediation necessary?

Owner retains a QP to conduct a Phase II ESA

Filing a Record of Site Condition (RSC)

YES

YES

YES

YES

NO

NO

NO

NO

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Site Condition Standards

“Soil, Ground Water and Sediment Standards for Use under Part XV.1 of the Environmental Protection Act”

• Organized by property use and potability of ground water;

• Application is limited by site specific conditions:• Potable/Non Potable• Shallow soils• Distance to Surface Water body

• Created using the best available science;• Risk Based Model – Rational Document (April 15, 2011)

Site Condition Standards Continued:

• Table 1 – Full Depth Background (Environmentally Sensitive Areas)

• Table 2 & 3 – Full Depth Generic (Potable and Non-Potable Groundwater)

• Table 4 & 5 – Stratified (Potable and Non Potable Groundwater)

• Table 6 & 7 – Shallow Soil (Potable and Non Potable)• Which 1/3 or more of the area consists of soil equal to or less than 2.0 m of soil above

bedrock

• Table 8 & 9 – Within 30 m of a Surface Water Body (Potable and Non-Potable)

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Exceedance of an Applicable Standard

• If an exceedance of an applicable standard is identified as a result of the Phase 2 ESA:– Remediation:

• May be undertaken by the owner to meet the applicable standards in order to file the RSC• Confirmatory Sampling and Analysis must be undertaken in accordance with Schedule E - Section 39

and 40 of O. Regulation 153/04 (as amended)

– Risk Assessment:• Is option available to property owners under O. Regulation 153/04 (as amended)• Very prescriptive process detailed in Schedule C of O. Regulation 153/04 (as amended)• Property Specific Standards (PSS) are generated

– Combination Remediation and Risk Assessment:• Remediation is completed to the extent practice/feasible and then an Risk Assessment is then

completed to generate PSS and obtain RSC.

– Confirmatory Sampling must show that either the applicable Generic Standards OR the PSS are met at the time of filing the RSC.

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Property Specific Standards/Risk Assessment

• scientifically examines the potential risk posed to humans, plants, wildlife and the natural environment from exposure to a contaminant;

• through this process an owner/developer has the ability to generate property specific standards that are protective of human health and the environment; and

• MUST assess all major pathways for each identified contaminant.

• MUST assess all contaminants in, on or under the property

• Evaluates the Risk and identifies any risk management measures that may be required

• Property & Building Restrictions• Capping of on-site soils• Measures to be taken during redevelopment• Other (Pump and Treat system)

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Property Specific Standards/Risk Assessment

“Procedures for the Use of Risk Assessment under EPA Part XV.1”

• Unique Qualified Person for risk assessment (QPRA)• Multi-disciplinary teams (P.Eng., P.Geo., Human Health Toxicologists, Ecologists etc.);

• Reviewed under timelines (8-22 weeks) dependent on type of risk assessment;

• Types of RA’s –

– Tier 2 - Modified Generic Risk Assessment – Streamlined Tier 3 – Tier 3 - Full Risk Assessment

Property Specific Standards/Risk Assessment

• Tier 2 Modified Generic Risk Assessment Model (MGRA) – the “Approved Model”– purpose is to provide a streamlined alternative to meeting generic standards and

the “Tier 3” risk assessment process for lower risk sites to generate property specific standards that are protective of human health and the environment for the intended use of the property. (8 Week Review Period)

– same conservative model used to develop the generic site condition standards under O.Reg. 153/04.

– approved model allows the QPRA to:• modify up to 11 site specific parameter, such as soil type, fraction of

organic carbon, distance to closest surface water body, minimum depth below grade to the highest water table etc.

• to opt into one or more of the 6 risk management measures (currently available)

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Property Specific Standards/Risk Assessment

• MGRA RMMs currently available include:– Fill Cap, Hard Cap & Shallow Soil Cap Barriers– No Enclosed Buildings prohibition– Buildings limited to those with first floor Storage Garage or Ground Floor Non-

Residential Use.

• Tier 2 cannot be used in certain circumstances, including but not limited to:– Soil pH outside the specified ranges– The Property is within, or includes, or is adjacent to land within 30 m of an Area

of Natural Significance– Presence of free product – Presence of Contaminant of Concern (s) not listed in the model

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Property Specific Standards/Risk Assessment

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Streamlined Tier 3 (16 week review period)

- MGRA + - An option currently available, upon concurrence with the District Engineer and

SDB, for lower risk sites where:- additional RMM (s) are required that is outside the model:

- Examples:- No potable well RMM required - Soil & Groundwater Management Plans- Site Specific Health and Safety Plans

- other factors/variables that may be present that do not conform to the model

- Note: these factors/variables get reviewed by SDB independently from the model

Tier 3 – Full Risk Assessment (16 to 22 week review period)

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Certificate of Property Use

• For sites that require RMMs to be implemented in support of the RA.

• Is the legal document that is issued to enforce the RMM’s and is binding on future property owners.

• Issued by the Local District Office by the appointed Director.

• Is Applicable Law under the “Building Code Act, 1992”.

• Is a class II instrument for EBR filing purposes, required 30-45 days posting (Tier 3 & Streamlined Tier 3 only).

• Certificate of Requirement (CofR) usually registered on title of the property to provide anyone dealing with the property notification of the CPU.

• CPU inspections are completed by the District Office.

Certificate of Property Use

• CPUs can be amended, revoked and/or replaced by the Director.– Modify/Remove RMMs and/or monitoring conditions– Modify PSS (case by case basis)

• Depending on the type of amendment – additional public consultation may be required.

• NOTE: A CPU cannot be amended or replaced, without a new RA, to:

• include new RMMs not assessed in the RA; and/or• add new Contaminants of Concern not assessed in the

original RA

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Certificate of Property Use - Notice

• Section 50 (O. Reg. 153): the Director is required to give notice to:

• Chief Building Official;

• The clerk of the local and any upper-tier municipality in which the property is located; and,

• If the property is located in an area in which a board of health, planning board or conservation authority has jurisdiction under section 3.1 of the Building Code Act, 1992, in each of the following:

– the inspector appointed under that section who has the same powers and duties in relation to sewage systems as does the chief building official in respect of buildings.

– the medical officer of health of the board of health, or the secretary-treasurer of the planning board or conservation authority. O. Reg. 153/04, s. 50.

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Certificate of Property Use - Notice

• Generally written Notice is provided upon:

– Director accepting the Risk Assessment for which there will be a CPU;

– DRAFT CPU being posted to the EBR; and

– Issuance of the Final CPU.

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Certificate of Property Use & Building Permits

• CPU – Applicable Law under the Building Code Act

Building Permit implications:

• CPU has a prohibition on construction buildings on the Property – No building permit can be issued for the construction of buildings.

• Type of buildings that can be constructed can be restricted (examples):

• if the CPU prohibits the construction of buildings with basements:– a building permit for buildings with basements cannot be issued

• if the CPU limits construction of buildings with first floor storage garage:– a building permit for any other type of building cannot be issued

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Case Study – Streamlined Tier 3

• Former industrial property to be redeveloped to residential\parkland\institutional and commercial use

• Phase One & Phase Two completed – exceedances of applicable generic standards identified

• Opted to undertake remediation to the extent practical • Completed Streamlined Tier 3 RA to generate PSS• Completed Confirmatory Monitoring

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Case Study – Streamlined Tier 3 Continued

• RMMs (Tier 2 Model):– Hard Cap, Soft Cap & Shallow Soil Cap Barriers– Buildings with First Floor Storage Garage

• RMMs (Additional):– Slab-on-Grade Building with Vapour Mitigation System (Commercial Use

Buildings only)– No Potable Wells– Monitoring and Maintenance of Existing Retaining Wall– Soil and Groundwater Management Plans– Site Specific Health and Safety Plans

• CPU issued• CofR registered on Title• RSC Filed

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Case Study – Full Tier 3

• Former industrial property

• Order on the property

• Various remedial efforts were completed over a number of years

• No soil exceedances

• Impacted groundwater moving off-site

• Tier 3 RA was completed for continued industrial/commercial use

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Case Study –Tier 3 Continued

• RMMs:– Any new buildings are restricted to slab-on-grade to be designed and constructed

with a minimum volume of 9,620 cubic meters (m3)– Confirmatory Groundwater Monitoring Program (minimum of 2 years)– Prohibition of constructed buildings with basements or below grade structures

intended for occupancy– Indoor air quality monitoring program (1 year) for any below grade structures not

intended for occupancy (i.e. meter room)– Financial Assurance for monitoring

• CPU issued• CofR registered on title• RSC filed

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Your Local District Engineers… • Northern Region:Thunder Bay Regional and District OfficesToll free from area codes 705/807: 1-800-875-7772Tel: 807-475-1205

Sudbury District OfficeToll free from area codes 705/807: 1-800-890-8516Tel: 705-564-3237

• Eastern Region:Kingston District Office (Bellville Area Office)Toll free for area codes 613/705/905: 1-800-267-0974Tel: 613-549-4000

Ottawa District Office (Cornwall Area Office)Toll free: 1-800-860-2195Tel: 613-521-3450

Peterborough District OfficeToll free from area codes 613/705/905: 1-800-558-0595Tel: 705-755-4300

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Your Local District Engineers…

• Central Region:Central Region Office Metro Toronto District Office - Toll free: 1-800-810-8048, Tel: 416-326-6700

Halton-Peel District Office - Toll free: 1-800-335-5906, Tel: 905-319-3847

York-Durham District Office - Toll free: 1-800-376-4547 , Tel: 905-427-5600 

Barrie District Office - Toll free: 1-800-890-8511, Tel: 705-739-6441

• Southwest Region:London District Office - Toll free number from area code 519: 1-800-265-7672, Tel: 519-873-5000

Owen Sound District Office - Toll free number from area code 519: 1-800-265-3783, Tel: 519-371-2901

Sarnia District Office (Windsor Area Office) - Toll free number: 1-800-387-7784, Tel: 519-336-4030

• West Central Region:

Guelph District Office - Toll free: 1-800-265-8658, Tel: 519-826-4255Hamilton District Office - Toll free: 1-800-668-4557, Tel: 905-521-7650Niagara District Office - Toll free: 1-800-263-1035, Tel: 905-704-3900

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