On July 1, 2011, significant amendments to O. Reg. 153/04, Records of Site Condition will come into force, including changes to the filing and acknowledgment of records of site condition (RSCs).
If a qualified person and owner of property wish to have a RSC filed and acknowledged before the changes come into effect, and have not yet done so, the Ontario Ministry of the Environment (MOE) strongly encourages them to submit the RSC with all required documentation well before June 30, 2011 in order for MOE to ensure the RSC meets the current regulatory requirements. RSCs which are incomplete (e.g. missing supporting documentation) cannot be filed and acknowledged.
The requirements for the RSC submission process change on July 1, 2011 when the amendments to O.Reg 153/04 come into force. If you do not have an acknowledged RSC filed on the registry by June 30, 2011, a qualified person and owner of a property may have to re-submit a RSC for filing, which meets the requirements that come into force on July 1, 2011.
If you have already submitted a RSC and problems were identified by MOE, please contact MOE with any questions before re-submitting the RSC to minimize delays.
If you would like a RSC to be filed and acknowledged before July 1, 2011, you should ensure that your RSC contains no errors and the submission includes all relevant and required supporting documents.
Janet Bobechko, chair of the Ontario Environment Industry Association's Brownfields Committee, said that if companies have the appropriate information to file their RSCs, they should do so now as they will have to "spend a lot of time and money" to correctly file RSCs after the amendments come into effect.
Set out below are some common errors found in RSC submissions, and a list of the supporting documents required for filing a RSC.
Common errors in RSC submissions
The most common types of errors found in RSC submissions are as follows:
The legal description of the RSC property supplied in supporting documents does not match what has been entered in the RSC.
The documentation you provide with the legal description of the RSC property must match the legal description that is entered on the RSC unless the RSC property is part of the property described in the supporting documents. Please call MOE before you submit the RSC if you have any questions.
The RSC is being filed for a property that is part of a larger property that is the subject of a deed or transfer; however, no plan of survey is provided with the RSC and the legal description bears no likeness to any documentation provided.
If the RSC property applies to a portion of an entire legal property, there are a few things that need to be identified in the RSC.
First, when you see the question, "Does the RSC apply to the entire legal property"? Answer with "No".
Second, ensure that the survey provided identifies the RSC property boundaries, and that it has been prepared by an Ontario Land Surveyor.
Finally, MOE recommends that you include a letter that describes the legal description of the property prepared by a lawyer. Inclusion of this letter in this situation will help prevent delays. Please note that the RSC property provided in the letter must match the legal description of the RSC property entered in the RSC.
Required supporting documents are missing.
If you're not sure what documents you need to include with the RSC submission, please check the list below. If you still are unsure, please contact MOE for clarification.
The dates on Page 3 of the RSC do not match (Owner's Certifications).
Please note that the owner is required to insert two dates on Page 3 of the RSC -- these must be the same, as required by Schedule A of O.Reg. 153/04. The owner is required to certify, among others, the following statement: "To my knowledge, the statements made in this part of the RSC are true as of [insert date on which the owner or the owner's agent signs the RSC]". If you have any questions about this, please contact MOE before submitting the RSC.
The survey provided has not been prepared by an Ontario Land Surveyor.
If a survey is required, the regulation requires that it be prepared by an Ontario Land Surveyor. This requires that the survey be signed and dated. The survey does not have to have been deposited with the Land Registry office in order to be used in a record of site condition.
Required supporting documents
1. Certificate of Status or Equivalent (Qualified Person's corporate employer) -- If the qualified person is an employee of a corporation, please provide a certificate of status (if a corporation incorporated under the Business Corporations Act) or equivalent document. If the corporation is not incorporated under the Business Corporations Act, please provide official documentation that demonstrates that the company or corporate employer still exists. If you are unsure what is needed, please contact MOE for clarification.
2. Business Names Report (Qualified Person's partnership employer) -- If the qualified person is an employee of a partnership or a member of a partnership, please provide a copy of the Business Names Report, if one exists.
3. Certificate of Status or Equivalent (owner) -- If the owner is a corporation, please provide a certificate of status (if a corporation incorporated under the Business Corporations Act) or equivalent document. If the company or corporate employer is not incorporated under the Business Corporations Act, please provide official documentation that demonstrates that the company or corporate employer still exists. If you are unsure what is needed, please contact MOE for clarification.
4. Business Names Report (owner) -- If the owner is a partnership, please provide a Business Names Report, if one exists.
5. Deed or Transfer -- A copy of the deed or transfer by which the RSC property was acquired by the owner (even if the deed or transfer includes other property in addition to the RSC property). If you are not sure what document is required, please contact MOE for clarification.
6. Letter Authorizing Person to Sign on Behalf of Owner -- If the person filing the RSC is not the owner of the property, include a letter that demonstrates that the person is authorized to file the RSC on the owner's behalf. For example, if the owner is "ABC Company" and you work for "ABC Company", you will need to provide a letter from "ABC Company" authorizing you to file the RSC on "ABC Company's" behalf. If you are not sure what document is required, please contact MOE for clarification.
7. Survey -- If the RSC property is part of a larger property that is the subject of the deed or transfer, attach a copy of a survey of the RSC property prepared by an Ontario Land Surveyor (that identifies the surveyed bounds of the RSC property). The survey must be signed and dated.
8. Letter Authorizing an Agent -- If you are an agent for the owner, include a letter that demonstrates that you, the agent, are authorized by the owner to "make the statements required under subsection 6(1) of Schedule A and to sign the RSC on behalf of the owner". What is identified in quotes needs to appear in the letter. If you are not sure what document is required, please contact MOE for clarification.
9. Proof of Appointment as Receiver -- If the person filing the RSC as owner is a receiver, include proof of appointment as receiver, including any order, or proof that the receiver has taken possession or control of the property.
10. Survey showing Where the Phase Two Environmental Site Assessment Was Conducted -- if the QP certifies that no phase two environmental site assessment is required by the regulation for a particular part of the RSC property, include a survey identifying the surveyed boundaries of the phase two environmental site assessment prepared by an Ontario Land Surveyor. The survey must be signed and dated.
For more information, visit MOE's website at http://www.ene.gov.on.ca/environment/en/subject/brownfields/STDPROD_086257.html