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According to the Ministry of the Environment, one of its key changes to Reg. 153/04 (in Reg. 511/09) are its “enhancements” to the Record of Site Condition process. These “enhancements” have three major components:

  1. A quality control / audit process for Records of Site Condition, before they are acknowledged by the Ministry of the Environment;
  2. Detailed regulatory standards for the Phase I and II Environmental Site Assessments (ESAs) that must underpin an RSC, instead of reliance on existing CSA standards; and
  3. Conflict of interest rules for the Qualified Persons who must sign each RSC.

For example, each RSC will now be reviewed by Ministry staff within 30 days (not including holidays and weekends). Some will have a desktop review; others will be reviewed in more detail. Defective RSCs will be rejected; acceptable ones will be “acknowledged”, and can then be relied upon. This should improve the minimum quality of RSCs, at the cost of adding an additional six weeks to the process of obtaining any RSC.

In my opinion, all three of these “enhancements” reflect Ministry disappointment with a minority of environmental consultants over the past five years, and the real harm that some clients have suffered as a result. Why else is it necessary to tell QPs that they must be free of conflicts of interest when they sign an RSC? Or to specify in so much detail the steps they have to take in investigating a property? Or to require that QPs rely only on documents that are relatively fresh and complete (eg Phase I ESAs must be no more than 18 months old).

The MOE tried to save staff time and regulatory delay by delegating these technical tasks to professional engineers and geoscientists, and to have the public rely primarily on their professional qualifications. Now it is backtracking, and taking back a more direct supervisory role.

On the one hand, as someone who has devoted many years to the development of multi-stakeholder environmental standards, it is a little disappointing to see the Ministry of the Environment turn away from such standards in this regulation. On the other hand,  as someone who spends far too much time in litigation caused by negligent consultants, I am pleased to see the Ministry insist on better quality, more thorough work from the engineering/ geoscientist community. If the professional regulatory bodies won’t control conflicts of interest and shoddy environmental work (and they haven’t), the Ministry of the Environment must do so. These additional specifications should better protect high quality consultants from undercutting by less careful competitors, and should better protect clients against the risk of shoddy investigations and reports.

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