The Changes in Summary
Under British Columbia’s Environmental Management Act, the Ministry of Environment has the authority to issue contaminated sites approvals, notably certificates of compliance and approvals in principle of remediation plans. These approvals are often essential for property sale and development purposes. Before July 1, 2008 applications for approvals were reviewed by either:
- "roster expert reviews" - "eligible" applications required a review and recommendation by an expert appointed to the Ministry’s roster and were processed by the Ministry’s Roster Steering Committee; or
- "external reviews" – for most other applications, the Ministry would rely on reviews by their own staff or private consultants retained by contract.
As of July 1, 2008, these forms of reviews will have little, if any, practical effect. The newly-created and independent Society of Contaminated Sites Approved Professionals of British Columbia now processes the vast majority of applications. Society members, acting as "approved professionals", conduct the reviews. The Ministry of Environment requires that applications be (a) supported by Society member reviews and recommendations, and (b) processed by the Society.
Two other changes to the approval system are noteworthy. The Ministry and the Society have jointly created new procedures to facilitate the use of risk-based remediation standards and have adopted new rules to govern when approved professionals must use an arm’s length review (as opposed to self-assessment) of documents in support of applications.
The Society’s Functions
The Society is a self-regulating professional body created to process contaminated sites approval applications. It assumes many functions formerly conducted by the Ministry and the Roster Steering Committee, and takes on altogether new responsibilities as well.
The key Society functions pertain to:
- admitting members (who the Ministry can rely upon as "approved professionals" under the Act);
- receiving applications and associated approved professional reviews and recommendations for regulatory approvals and then screening these documents for substantial compliance;
- conducting audits ("performance assessments") of randomly selected and targeted approved professional reviews and recommendations;
- forwarding applications and accompanying reviews and recommendations to the Ministry for issuance of the applicable instrument;
- disciplining members;
- issuing practice guidelines, notably those respecting when a member must prepare his or her review and recommendation on the basis of an arm’s-length review or a self-assessment; and
- assessing fees for processing applications.
What Role is Left for the Ministry?
The Ministry, on receipt of applications from the Society, will do a final vetting and issue the requested regulatory instrument. This is expected to take about two weeks, as the more substantive vetting (and audits in certain cases) will have been done earlier by the Society.
Going forward, the Ministry will:
- discharge the Act’s duty to give final approval of the sought instrument;
- file approved instruments on the site registry;
- give general guidance as to how reviews and recommendations for approvals should be prepared (e.g., methodologies for site investigations, format and content of draft instruments);
- review applications for the very small number of non-"eligible" sites deemed to be "high priority" sites (e.g., Brittania, Ocean Falls); and
- prescribe which sites are eligible for approved professional (i.e., Society member) reviews and recommendations via Protocol 6. (The latest version of Protocol 6 substantially increased the scope of "eligible" sites.)
Who Are Society Members?
Members must apply to the Society, pass exams, demonstrate relevant experience, and carry prescribed insurance. Members will be drawn primarily from three professions: the Association of Professional Engineers and Geoscientists of B.C., the College of Applied Biology, and the B.C. Institute of Agrologists.
In practice, many of the pre-July 1, 2008 Roster Steering Committee experts will become Society members through a rollover process (now underway).
How Will the Members Support Applications?
Society members will review investigations and remediation work and make recommendations for regulatory approvals. The reviews must apply legislative standards, Ministry guidance and protocols, and Society bylaws, rules and practice guidelines. The reviews and recommendations will be completed in a new standard form – the "Summary of Site Condition".
Must an Applicant for Ministry Approval Hire a Society Member?
Yes. The Ministry’s Protocol 6 and guidance documents state that the Ministry will not consider "eligible" applications unless supported by approved professional reviews and recommendations. At present, the Ministry does not recognize any "approved professionals" who are not members of the Society.
Who Chooses the Approved Professional?
The applicant makes this choice. Applicants will need to assure themselves that the approved professional is in good standing with the Society and is qualified to apply the particular remediation standard (numeric or risk-based). The Society website lists its members by type of remediation specialty. The retainer agreement is a private matter between the applicant and the approved professional. Neither the Ministry nor the Society has imposed a standard contract or fee schedule to govern the applicant/approved professional relationship.
How is the Application Process Started?
Applications for regulatory approvals must be submitted in accordance with the Society’s procedures and fee schedule. Submissions must be sent directly to the Society’s office, located at 613 – 744 West Hastings Street, Vancouver, or submitted online, using the Society’s Online Submission Manager. All applications must be accompanied by an approved professional review and recommendation. In practice, the members of the Society – the reviewers of the application – will commonly submit the application on behalf of their client.
Who Audits Members?
The Society will conduct "performance assessments" (i.e., audits) of member reviews and recommendations both on a random and targeted basis. This role was formerly performed by the Ministry. The Society bylaws and rules provide a detailed procedure for performance assessments.
Can the Society Discipline its Members?
Yes. To ensure its members are meeting professional and ethical standards, the Society can act on public complaints and sanction members where appropriate. Public complaints about an approved professional are referred first to a discipline committee and, on appeal, to the Society board.
Are Members Insured?
As a condition of membership in the Society, members must carry a minimum of $2 million professional errors and omissions insurance. A new feature is the Province/Approved Professional Indemnity which, for signatory members, provides protection against errors and omissions claims exceeding private insurance limits. This provincial backstop protection requires that the member maintain additional private insurance and otherwise satisfy Society membership requirements.
Does the New System Encourage Risk-Based Remediation?
The risk-based remediation standard, at least in theory, allows contaminants to remain on site, subject to risk management, and thus could be financially advantageous at many sites. This advantage, however, has often not been realized because the Ministry has traditionally not allowed non-Ministry roster experts to review risk-based remediation, which in turn has resulted in backlogs within the Ministry, creating lengthy delays.
The Ministry has long signalled its intention to encourage risk-based remediation (as opposed to numeric ‘dig and dump’ remediation) and to give timely approvals. These intentions are now being effected jointly by the Ministry and the Society as follows:
- the Ministry’s Protocol 6 allows approved professionals to make submissions for certain types of risk-based applications;
- the Society will admit members who are risk-based specialists; and
- the Society will administer practice guidelines respecting risk assessments.
Can the Approved Professional Review His or Her Own Work?
The new system has substantially more rules and guidance respecting when and how an approved professional can review his on her own work (as opposed to someone else’s work on an arm’s-length basis). These rules and this guidance are found primarily in the Province/Approved Professional Indemnity Agreement and the Society’s practice guidelines.
Can the Society Charge Fees?
The Society can charge its own fees for processing applications. The Society fees are payable on submitting an application. Anticipating that the Society would charge its own fees, the Ministry on July 1, 2007 significantly reduced fee assessments in the Contaminated Sites Regulation.
Where Can I Find More Information?
Additional information on the Society and its submissions process can be found at the Society homepage at http://www.csapsociety.bc.ca/.
Ministry information on this new system can be found at: http://www.env.gov.bc.ca/epd/remediation/updates/index.htm and