Several recent changes to the British Columbia contaminated sites process affect property assessment requirements and the processing of permit applications. These changes include amendments to the site profile process, changes to the remediation and assessment of groundwater procedures, and clarifications to the determination of high risk sites. In this newsletter we will discuss:
- Changes to groundwater testing and classification;
- The site profile release process; and
- Protocol 12: high risk and non-high risk sites.
THE NEW APPROACH TO GROUNDWATER
Effective February 1, 2011, the Ministry of the Environment (the Ministry) is taking a new approach to the assessment and remediation of groundwater process by looking at groundwater in respect of both its current and future possible uses. These changes have potentially far reaching implications, increasing both cost and time, with respect to the remediation of all contaminated sites, and not just groundwater remediation.
Technical Guidance 8 (TG8) published under the British Columbia Contaminated Sites Regulation prescribes more detailed groundwater testing and allows less room for different approaches to be taken by consultants when completing a Detailed Site Investigation. For instance, the location and the number of wells will be further specified and the number of wells will be increased resulting in both increased time and expense for the landowners.
Also, there is an increased likelihood that groundwater resources will be assessed on the basis of drinking water standards as opposed to commercial, industrial or agricultural standards because of TG8. These changes are intended to align the Contaminated Sites Regulation with the British Columbia Groundwater Act. Drinking water standards have much lower allowable concentrations of contaminants, which means that, if there is an exposure pathway present, it is more likely that a contaminated site will be classified as high risk.
Significantly, TG8 considers not only current use but also potential use of the water resource to determine if drinking water standards apply. Drinking water standards will apply if:
- the water is currently used for drinking water or if there is a well within 500 metres of the outer extent of the groundwater contamination source. This radius can be reduced if groundwater flow has been accurately determined; or
- groundwater is suitable for drinking or commercially available technology can be reasonably employed to treat the water so that it is suitable for drinking. The Ministry has not provided any guidance on what might be considered "reasonably employed".
Yield and hydraulic conductivity will also be considered; however, the baseline requirements for yield and conductivity are low enough that these additional requirements will not likely prevent the application of drinking water standards for yield or hydraulic conductivity reasons only.
If the groundwater is naturally confined to a geological formation protecting the groundwater from leaking or leaching then it will be excluded from the application of TG8. Certain seasonal or shallow aquifers may also be excluded.
As these new standards come into effect February 1, 2011, applications received prior to the effective date will be reviewed in light of practices and policies currently in effect; however, compliance with the new standard is still encouraged where possible.
Because of the increased stringency concerning groundwater evaluation, and the increasingly prescribed testing processes, we recommend that any clients who may be subject to TG8 ensure Ministry applications pertaining to groundwater remediation are submitted prior to February 1, 2011. The availability of alternative sources of drinking water does not exempt a landowner from application of TG8. For instance, in areas where groundwater is close to the surface, drinking water standards will likely apply even where there is little or no likelihood that a well will actually be used, or a municipal water system is already in use.
These new processes will take more time and be more expensive. Some estimates suggest site remediation costs will increase by approximately 50%, but obviously the increase may be more or less depending on the project.
THE SITE PROFILE RELEASE PROCESS
Technical guidance documents recently published by the Ministry have implemented changes to the site profile process. The changes now refer to five different scenarios, and the scenario of the project will determine which site profile process applies.
Site profiles review the environmental condition of a property and assist in identifying potentially contaminated sites. The requirement to complete a site profile is triggered by several events stipulated by the Contaminated Sites Regulation such as rezoning, subdivision, notification of independent remediation, decommissioning sites used for certain regulated industrial uses, or notification of off-site migration. The most common trigger is the decision of a landowner to undertake independent remediation. Because most triggers to site profile requirements are municipal approvals, site profiles are submitted directly to the applicable city or municipality, and then forwarded to the Ministry.
Prior to June 1, 2010, applicants were required to submit site profiles to the relevant municipal body and secure contaminated site instruments prior to occupancy. Under the current rules, changes to the 'release request' process result in approved professionals making decisions to release permits at different stages of the process, rather than relying on the municipal body to withhold permits prior to occupancy.
The five new scenarios triggering site profile requirements or exceptions are:
- demolition: site profiles will only be required at the next stage of development, rather than at the demolition stage;
- soil removal zoning or subdivision: the Ministry will require a site profile be completed at the time of subsequent approvals rather than at the soil removal, zoning or subdivision stage. Information on subsequent approvals may need to be provided to the Ministry;
- subdivision: if site activity remains the same and the applicant retains ownership of the contaminated area, then no approvals are required provided the area sold is clean and the existing use of the property is not changing. The applicant must give a written commitment that site activity will not change. If the site is a high risk site this exemption will not apply;
- site upgrades: the applicant must submit detailed remediation plans to the Ministry for the building footprint area including dates and whether or not the property is classified as high risk. If the property is sold prior to the remediation being completed then the Ministry may require that a restrictive covenant be registered on title to the land notifying any potential purchaser of the remediation underway and the requirement that the remediation be completed before the enhanced use of the property is allowed. The Ministry may also require the applicant provide the Ministry with a commitment letter to complete the remediation plan; and
- development permit application: remediation must be completed prior to obtaining the building permit, as opposed to prior to the release of the occupancy permit as was previously the case. The owner must also commit in writing to follow the remediation plan.
The requirement that remediation be completed earlier in the development process (at the building permit stage as opposed to the occupancy permit stage) is the biggest change in this process. This change moves the timeline of remediation significantly forward and has the potential of extending the timeline required for a property owner to complete the development and construction process. This change also makes it challenging for remediation to be completed concurrently with construction activities.
PROTOCOL 12: THE DEFINITION OF A HIGH RISK SITE
Released in 2010, Protocol 12 sets out: (a) conditions that classify a site as high risk; (b) notification and reporting requirements; and (c) reclassification requirements.
Two factors are necessary for a site to be considered high risk:
- the presence of mobile non-aqueous phase liquids such as gasoline or drycleaning fluid; and
- the potential for high risk exposure.
Both a complete exposure pathway and high concentration of the substance must be present for the site to be considered high risk. Concentration is typically considered to be high risk if the amount of contaminant is found at approximately 10 times the upper cap permitted under the Contaminated Sites Regulation. New registration of the property as a high risk site in the Site Registry maintained by the Ministry can be avoided if the landowner conducting independent remediation completes sufficient remediation within 90 days of the notice of independent remediation being submitted to the Ministry such that a "non-high risk" site risk classification report can be completed and submitted to the Ministry. Not all remediation must be completed within the 90 day time frame, only sufficient remediation so that the site is no longer considered "high risk".
Classification of sites as high risk or non-high risk is generally completed by the consultant on site. The Ministry audits approximately 1 in 20 site classifications to ensure the classification is completed properly.