Environmental Law News

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Subject: “Qualified Persons’ – Ontario Regulation 153/04 of Bill 56

“Qualified Person’ Under Ontario Brownsfield Legislation
Who is Qualified?  When Do We Need To Be A QP?

Does This Mean Nobody But A QP Can Conduct An Environmental Site Assessment (ESA)?  “NO’

Aesac has endeavoured to clarify Ontario Regulation 153/04 of Bill 56 with an article submitted by Carolyn Shaw from Willms & Shier Environmental Law Firm which she has presented at our Phase I Environmental Training Courses in Toronto.

“QUALIFIED PERSON’ UNDER ONTARIO BROWNFIELDS LEGISLATION
WHO IS QUALIFIED? WHEN DO YOU NEED TO BE A QP?

The new Ontario Brownfields regime requires that environmental site assessments and remediation work carried out under the Environmental Protection Act be conducted by or under the supervision of a “qualified person’ (QP).

Does this mean nobody but a QP can conduct an environmental site assessment (ESA)?  NO  For environmental site assessors only, the Brownfields regime requires that you be a QP to conduct or supervise Phase I and Phase II ESA´s if the purpose of the ESA is to prepare a Record of Site Condition (RSC) to be filed on the new Environmental Site Registry (ESR).

This takes on increased importance as of October 1, 2005 when mandatory clean-up provisions applied in Ontario to changes of land use from less sensitive to more sensitive.  For example, after that date, a RSC will have to be filed to change from industrial or commercial to residential use.

Ontario´s Records of Site Condition regulation prescribes the requirements for RSCs prepared under the Brownfield´s legislation, including definitions and rules for Phase I and Phase II Environmental Site Assessments (ESAs), clean-up standards and procedures.  A RSC submitted for filing on the ESR must be signed by the property owner and the QP who prepares the RSC.

MOE Regulation Proposal Notice – Qualified Persons
www.ebr.gov.on.ca
The Ministry of the Environment is proposing the following amendments to section 5:

 

    1. As of April 1, 2008 amend the qualifications to be a qualified person to permanently include:

 

    1. persons holding a limited licence under the Professional Engineers Act;

 

    1. persons holding a certificate of registration under the Professional Geoscientists Act, 2000 who are limited members of the Association of Professional Geoscientists of Ontario;

 

    1. Provisions to allow all persons who are currently recognized as qualified persons to continue to work as qualified persons until March 31, 2009;

 

    1. 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;

 

    1. Prescribe a purpose for the Registry that includes facilitating public access to information respecting qualified persons.

 

The regulation sets out the credentials required to be a QP.  There are three levels of QP.  The first level of qualifications allows the QP to sign a RSC based on a Phase I ESA only.  The second level of qualification allows a QP to sign a RSC based on a Phase I or Phase II ESA.

The third set of requirements applies to a QP who supervises or conducts Risk Assessments that are to be submitted and accepted by the MOE.

QPs for the purposes of conducting Phase I ESA´s must be members of the following “regulated’ professions: professional engineers, professional geoscientists, certified engineering technicians and technologists, architectural technologists, professional agrologists and chartered chemists.

Only professional engineers, professional geoscientists, professional agrologists and chartered chemists can be QPs for the purposes of conducting or supervising Phase II ESAs.

A RSC based on Risk Assessment can only be signed by a QP who is a professional engineer or a professional geoscientist.  The qualifications of a QP who can conduct and supervise a Risk Assessment that supports a RSC include prescribed education and risk assessment experience.

Under O. Reg. 153/04, all QPs must maintain insurance coverage under a policy that satisfies prescribed criteria.

HOW TO RECOGNIZE A QP

An environmental professional must register with the Ministry of the Environment (MOE) as a QP in order to prepare and submit a RSC capable of being filed on the ESR.

To register, the applicant must provide proof of professional qualifications by completing and submitting a Qualified Persons Registration Form from the MOE website.  The MOE that provides the applicant with a user name and password to access the special QP functions of the ESR.  All RSCs are filed electronically by the QP on the ESR.  Paper copies with the signatures of the parties must also be filed with the MOE.

NOT ALL ESAs REQUIRE A QP

Not every Phase I or Phase II in Ontario must be conducted by a QP.

A Phase I or Phase II ESA does not need to be conducted by a QP unless the purpose of obtaining the Phase I or Phase II ESA is to prepare a RSC capable of being filed on the ESR under the Brownfields legislation

Environmental site assessors who do not qualify as QPs under O Reg. 153/04 may continue to conduct Phase I and Phase II ESAs as long as no RSC is required by the property owner or by law.