The Ontario Ministry of the Environment is proposing to amend Ontario Regulation 153/04 made under the Environmental Protection Act (EPA) to change the provisions in section 5 regarding qualified persons who conduct or supervise environmental site assessments and who make certifications in records of site condition (RSCs) filed to the Brownfield Environmental Site Registry (Registry). Section 5 currently has a sunset date of April 1, 2008. Section 6, regarding qualified persons who may conduct risk assessments, would be unaffected by this proposal.
The Ministry of the Environment is proposing the following amendments to section 5:
As of April 1, 2008 amend the qualifications to be a qualified person to permanently include:
•persons holding a limited licence under the Professional Engineers Act;
•persons holding a certificate of registration under the Professional Geoscientists Act, 2000 who are limited members of the Association of Professional Geoscientists of Ontario;
Provisions to allow all persons who are currently recognized as qualified persons to continue to work as qualified persons until March 31, 2009;
Provisions to allow persons who are currently recognized as qualified persons and are licenced under the Professional Engineers Act or the Professional Geoscientists Act, 2000 to continue to be recognized as qualified persons indefinitely;
Prescribe a purpose for the Registry that includes facilitating public access to information respecting qualified persons.
Often the work undertaken to support a RSC is completed by an interdisciplinary team of experts. A qualified person is the team leader and the person accountable for the quality of work undertaken by the assessment and remediation team. In the period between October 1, 2004, when the Registry began, and October 1, 2007, eight hundred and sixty-six (866) RSCs were acknowledged and posted on the Registry. In just over ninety-eight percent (98%) of RSCs the required certification statements were made by Professional Engineers or Professional Geoscientists.
The qualified person supervises or conducts environmental site assessments, is accountable for the information contained in a RSC, and makes the required certifications that the property meets applicable site condition standards. At the core of the responsibilities of a qualified person is the application of geoscience and engineering principles. It is also important that qualified persons have professional experience and other qualifications specific to the assessment of contamination of subsurface soil and ground water conditions with the outcome of ensuring that a property meets applicable standards with respect to contamination and the intended use. The proposed regulation chooses the professions with stringent experience and education requirements that are the most directly and broadly relevant to the work of a qualified person. These professions also have active, publicly accessible and publicly regulated accountability mechanisms (set out in the Professional Engineers Act and the Professional Geoscientists Act). Under the proposed regulation, other individuals undertaking work supporting a record of site condition may continue to do so, but could not take overall responsibility for a record of site condition.
The proposed regulation also expands the types of licences recognized under the Professional Engineers Act and the Professional Geoscientists Act, 2000 to include limited licences and limited members, respectively, under those pieces of legislation. This recognizes people who, as a result of years of specialized experience, have developed competence in a certain area of professional engineering or geoscience. This experience may be considered acceptable by the association allowing the person to obtain a licence and practice as a qualified person. The draft regulation as posted does not restrict which limited licence holders would be qualified persons. The Ministry of Environment will work with the Professional Engineers of Ontario and the Association of Professional Geoscientists of Ontario to ensure limited licence holders undertaking QP responsibilities have an appropriate scope of practice.
Transition provisions are proposed for a period of one year. During this time, people with one of the currently prescribed professional designations (e.g. Chartered Chemists) can continue to make certifications in a RSC. During this time, someone with one of the currently prescribed professional designations (other than P. Eng. or P. Geo.) may continue to work as a qualified person, make certifications, and complete or make arrangements to transfer any work which is underway. They may also choose to complete requirements to become a Professional Engineer or Professional Geoscientist.
Finally the proposed amendments would introduce an additional purpose of the Registry that includes facilitating public access to information respecting qualified persons. This would enable the Registry to include, at a minimum, a list of qualified persons.
Brownfield properties are unique and provide a variety of redevelopment challenges and opportunities. This complexity necessitates a multidisciplinary approach to redevelopment. To protect the public interest it is necessary to ensure that brownfield redevelopment projects involving the filing of RSCs are conducted or supervised by professionals who are accountable and qualified. Part XV.1 of the EPA requires a qualified person to undertake certain activities related to the filing of a RSC. These activities and the filing of a RSC demonstrate that a property previously found to have contamination, or suspected of having contamination, now meets the applicable standards. A qualified person must meet the qualification requirements specified by Ontario Regulation 153/04.
To be able to file a RSC, a qualified person is required to:
- conduct or supervise a Phase one environmental site assessment;
- in some cases conduct or supervise a Phase two environmental site assessment; and
- make certain certifications in a RSC.
The person supervising or the person conducting the environmental site assessment must be a qualified person. The requirements related to qualified persons do not apply to all people involved in environmental site assessment activities provided these other persons are acting under the overall supervision of a qualified person.
The EPA requires that regulations prescribe the requirements for being a qualified person for the purpose of completing certification statements in RSCs and submitting risk assessments. The proposed amendments only affect qualified persons who conduct or supervise environmental site assessments and make certifications with respect to RSCs based on phase one and/or phase one and two environmental site assessments. This proposal does not relate to the submission of risk assessments. Currently, the provisions regarding qualified persons conducting or supervising environmental site assessment work and making certifications in a RSC are as follows: persons with one of the designations specified in Section 5 of the Regulation are qualified persons. The designations in Table 1 relate to the following qualifications in the Regulation:
- Professional Engineer – holds a licence or temporary licence issued under the Professional Engineers Act to engage in the practice of professional engineering, other than a limited licence issued under that Act;
- Professional Geoscientist – the person is a member of the Association of Professional Geoscientists of Ontario under the Professional Geoscientists Act, 2000, but not if the person is a limited member or a non-practising member;
- Chartered Chemist – the person is registered as a chartered chemist by the Association of the Chemical Profession of Ontario under the Association of the Chemical Profession of Ontario Act, 1984;
- Professional Agrologist – pursuant to the by-laws made under The Ontario Professional Agrologists Act, 1960, being chapter 158, the person is certified as a professional agrologist by the Ontario Institute of Professional Agrologist;
- Applied Science Technologist – the person is registered as an applied science technologist under the Ontario Association of Certified Engineering Technicians and Technologists Act, 1998;
- Certified Engineering Technologist – the person is registered as a certified engineering technologist under the Ontario Association of Certified Engineering Technicians and Technologists Act, 1998; and,
- Architectural Technologist – is registered as an architectural technologist by the Association of Architectural Technologists of Ontario under the Association of Architectural Technologists of Ontario Act, 1996.
These designation requirements have been an interim approach to recognizing qualified persons. These provisions include a sunset clause stating that they will be revoked on April 1, 2008. The proposed new regulations are intended to replace this interim approach.
The Registry is required to implement Part XV.1 of the EPA. The purposes of the Registry are to allow persons (property owners) to file RSCs and facilitate public access to information contained in those RSCs. Other purposes of the Registry can be prescribed. The Registry is an internet-based, electronic registry and can be accessed for purposes of filing a RSC (or transition notice) or viewing a RSC from a link on the Ministry of the Environment website www.ene.gov.on.ca.
An important purpose of the Registry is to facilitate public access to information contained in RSCs, especially information about the environmental condition and clean up, if clean up had been required, of a property. Through the Registry, the public can obtain information concerning environmental site assessments, the standards that were applied to the property and any remedial action that may have been undertaken to meet these standards. The Registry also contains information about instruments that may have been issued to the owner in relation to the RSC property such as a certificate of property use. The Registry has search capabilities to assist the public in finding RSCs which may have been filed for a particular property or filed for other properties located within a certain area.