The B.C. Ministry of the Environment (the "ministry") plans to update some aspects of B.C.'s contaminated sites legal regime under the Environmental Management Act (the "Act") and its Regulations. The ministry has issued two intentions papers, outlining the ministry's new approach to the identification of contaminated sites1 and the prevention of contamination from soil relocation.2 This alert highlights the proposed changes in those papers and outlines the process by which interested stakeholders can provide feedback.
Identification of Contaminated Sites
Issues with current regime
The paper outlined three major weaknesses with the current site profile regime.
First, the existing regime is overly conservative. Land parcels will often be brought into the site profile process when proponents undertake activities that will not change land use. The existing triggers, therefore, are too broad.
Second, in order to offset these unnecessary triggers, the ministry has had to add additional release mechanisms to the Act. This complicates the site profile process and makes application confusing. It also requires significant ministry resources to administer.
Finally, there are currently other mechanisms in place which make 100% coverage by the Act unnecessary. For example, the ministry may find out about contaminated sites through Notification of Independent Remediation (NIR), Notification of Likely or Actual Offsite Migration (NOM), complaints, spill reports, emergency response, and service applications.
Objectives of proposed regime
The new regime seeks to create a single process for identifying contaminated sites that is consistent across the province. The regime will eliminate statutory decision-making by the Director in order to facilitate predictability and efficiency. The regime will accomplish this by writing all requirements into the legislation. There are four major changes in the new regime.
Change #1: Removal and addition of triggers for submission of a site identification form
The submission of a site identification form initiates site investigation and remediation requirements. The regime will add or remove certain triggers from the existing list.
First, while site decommissioning and foreclosure will still be triggers for site identification, an application for protection under the Companies' Creditors' Arrangement Act ("CCAA") will also trigger a submission. In other words, if a company makes a CCAA application, site identification forms will need to be submitted for all of that company's properties within the province of British Columbia where industrial or commercial activities listed in Schedule 2 of the Regulation have occurred. Application under the CCAA would also trigger a requirement to submit any and all existing site investigation reports and a Site Risk Classification Report to the Director within 30 days of filing the application.
Second, there will be changes among the triggers for applications at the local government level. Applications for demolition, soil removal, and subdivision will no longer be triggers, since these activities are often not related to site redevelopment. However, an application for a building permit will be added as a trigger because a building permit is the most common local government approval required to redevelop a site. The addition of this trigger justifies the removal of the triggers listed above.
Finally, the requirements for disclosure when selling a property that has had a Schedule 2 activity will remain unchanged. A vendor will still need to provide a site identification form to a prospective purchaser if the property has had a Schedule 2 activity.
Change #2: Removal and addition of exemptions
Presently, there are many exemptions to the requirement to submit a site profile form. The proposed regime would remove many of these exemptions in order to ensure that all sites undergoing decommissioning, foreclosure, or redevelopment are captured.
The municipal opt-out exemption would be removed. Municipalities will have to engage in the site identification process in order to ensure consistency across the province.
The exemption from submitting a site profile if one has already been filed on the Site Registry will be removed. Even where the site profile accurately reflects current knowledge about the site, submission of a site identification form will be required every time a triggering action occurs.
The intention paper suggests that new exemptions will be added, but only lists a few possible future exemptions. These include: (a) minor changes to zoning language where land use stays the same, or (b) where a development permit is for the purpose of upgrading an existing facility currently used for an activity listed in Schedule 2.
Change #3: Local government approvals will no longer be frozen pending receipt of a release letter
Under the current regime, if a site investigation is required, local governments are prevented from approving and authorizing projects. The proposed regime instead shifts focus to the end point of the building process and allows local governments to approve projects so long as the property is satisfactorily investigated and remediated before final building inspection or occupancy occurs.
Change #4: Director discretion will be removed from the initial decision to require a site investigation
The proposed site identification process will no longer require the Director to decide whether or not a site investigation is necessary. Currently, the Director must determine whether a preliminary site investigation (PSI) or a detailed site investigation (DSI) is required based on the site profile submission. The Director then monitors the contamination and issues a requirement for annual progress reporting at his or her discretion.
Under the proposed regime, if a Schedule 2 activity has occurred, a site investigation will automatically be required by the Regulation. The Regulation will state when a PSI is needed and when a subsequent DSI should be administered. If contamination is present, remediation will automatically be required. Annual progress reporting will also be required.
These changes add predictability to the site investigation process. However, they also curtail the Director's ability to waive the site investigation form requirement where appropriate.
Prevention of Contamination from Soil Relocation
Issues with Current Regime
The current provincial soil relocation provisions have been in place since 1993. The number of Soil Relocation Agreements ("SRAs") issued by the ministry has decreased dramatically since the enactment of relevant legislation. This is due in part to the considerable volume of soil being relocated without an agreement, either through ignorance of the law or avoidance of regulatory obligations.
The ministry identifies two main issues with the current soil relocation regime which may be to blame for the decline in SRAs. First, the provisions are complicated and onerous. The criteria for triggering an SRA requirement in particular are awkward and overly conservative. Given these confusing requirements, obtaining an SRA takes too long and costs too much money.
Second, the provisions are not applied consistently across the province. Federal lands, including First Nations on federal lands, are exempt from provincial soil relocation provisions. The relationship between local governments' soil deposit bylaws and provincial soil relocation requirements is unclear. An efficient and comprehensive soil relocation regime requires uniform application.
Proposed soil relocation provisions
The first significant change to the soil relocation process will be in the criteria for triggering an SRA. Any source site where a schedule 2 activity has been present will trigger an SRA where either of the following two criteria are met: the volume of soil is greater than a specified minimum, or the soil has originated from a high risk site. This trigger does not depend on the numeric land use standards of the receiving site. Schedule 2 of the Contaminated Sites Regulation will be revised as stated in the site identification intentions paper described above.
Second, the proposed process will be less onerous. SRAs may no longer be required for soil that meets the numeric land use standards of the receiving site. Instead, a proponent will complete a notification and certification form and submit it to the ministry for inclusion on the Site Registry. These materials would need to be submitted at least two weeks prior to relocation. No statutory or director decision would be required. For soil that does not meet the numeric land use standards for the receiving site, an application for ministry approval using risk-based standards is being considered.
Finally, the new process will be more transparent. The soil relocation forms and supporting documents/reports will be uploaded to the ministry website, allowing access for interested parties well before the date of relocation. This information will be available to the public, local governments, and First Nations communities. As it stands, notice is often only received by local government and First Nations 96 hours before removal.
The practice of characterizing the chemical composition of soil prior to its relocation will still be mandatory. Compliance and enforcement will be monitored primarily through audits of soil relocation notification materials. Complaints and referrals will be tracked, and the proposed notification period changes will allow more time for local governments and First Nations to follow up on potential bylaw compliance issues.
Invitation to Comment
Comments on both intention papers can be provided to the ministry by email attachment sent to Margaret Shaw. Alternatively, comments can be mailed to 703 Macintosh Street, Coquitlam, BC, V3J 4Y4.
All comments received will be reviewed and considered by the ministry prior to proposing future legislative and regulatory amendments, which are expected to occur in 2017 or later. Comments should be made on or before July 31 st 2016 for the contaminated site proposal and August 31 st 2016 for the soil relocation proposal.