New B.C. Rules for Contaminated Sites May Significantly Impact Businesses

Blake, Cassels & Graydon LLP
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[co-author: David Hillier, Articling Student]

On February 1, 2021, amendments to British Columbia’s Environmental Management Act and Contaminated Sites Regulation will come into force, changing the process for identifying contaminated sites in B.C. The changes will capture more contaminated sites and will impose more requirements on those who own or operate on contaminated land, including an automatic site investigation and reporting requirement.

In this bulletin, we highlight the more significant changes and flag upcoming additional changes to the soil relocation regime that are expected later this year.

NEW SITE DISCLOSURE STATEMENT AND TRIGGERS

Contaminated sites are currently identified through site profiles that provide information about the past and present use of a site. Site profiles are required to be submitted to the Ministry of Environment and Climate Change Strategy (Ministry) based on certain triggers, including decommissioning, foreclosure, local government applications and the sale of a property. The amendments change the name of the form from site profile to site disclosure statement and add additional triggers for when site disclosure is required.

Each site profile was reviewed by the Ministry, which determined if further investigation of the site was required. As of February 1, the requirement to provide a site disclosure statement will automatically trigger a site investigation and the filing of an investigation report with the Ministry.

New triggers for requiring a site disclosure statement include:

  • An owner or operator ceasing operations or decommissioning a site (a disclosure statement must be submitted within six months)

  • Single or cumulative spills to the environment greater than the reportable quantities of substances listed in the Spill Reporting Regulation

  • Owners or operators of a site who file an application or proposal under the Companies’ Creditors Arrangement Act or Bankruptcy and Insolvency Act

  • Applications for subdivision, change of use, development or building permits that involve soil disturbance

While site profiles could be submitted by any person, the responsibility for submitting site disclosure statements will be on owners, operators or their designated agent.

The amendments also introduce new administrative penalties for failing to submit a site disclosure statement or completing a site investigation.

NEW EXEMPTIONS BUT LIMITED ABILITY TO OPT OUT

The ability for municipalities to opt out of the site disclosure statement process has been removed. The amendments clarify those activities and parties that are exempt from submitting a site disclosure statement:

  • Land used for oil and gas activities

  • Permits for demolition, paving and landscaping, as well as installing or replacing underground utilities, fencing and signage

  • Rezoning without change to the activity undertaken or subdivision to bring about a minor boundary adjustment of lot consolidation

CHANGES COMING TO CONTAMINATED SOIL RELOCATION

Changes are also coming to the contaminated soil relocation rules. These amendments remove the requirement for a contaminated soil relocation agreement when relocating contaminated soil from a property. Instead, a person relocating soil must conduct an analysis of the soil and provide notice of the relocation. Notice must include the site from which soil will be relocated, the site it will be deposited at, the maximum amount of soil to be deposited and the soil quality analysis.

There will also be additional requirements for high-volume soil-receiving sites. Administrative monetary penalties may be issued if the new requirements for relocation are not complied with.

These changes are expected in the fall of 2021 and are outlined in the Ministry’s recently published Intention Paper. The Ministry is welcoming public comments on the Intention Paper until March 15, 2021.

COMMENTARY

The changes to the contaminated sites identification and soil relocation rules are intended to streamline and clarify these processes. However, they also increase the responsibility on owners and operators of potentially contaminated sites.
The changes will have the following impact:

  • The changes to the triggers for when site disclosure is required will increase the number of sites that will be captured

  • The requirement for mandatory site investigations will increase the time, effort and cost for those who own or operate on contaminated land

  • The addition of administrative penalties signals the Ministry’s intention to increase compliance and enforcement

Those who own or operate on contaminated land should plan for the additional time and cost required to implement the new processes and ensure compliance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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