Impending changes to British Columbia’s ‎contaminated sites regime: New obligations to ‎take effect February 1, 2021‎

The Environmental Management Amendment Act, 2019 (“EMAA”), which became law in May of 2019, seeks to address a number of purported weaknesses in the current contaminated site regime and streamline the contaminated site identification process by simplifying the trigger conditions and the submission procedures. Both the Environmental Management Act (“EMA”) and Contaminated Sites Regulation (“CSR”) have been modified by the EMAA and a complimentary Order in Council made by the provincial cabinet. These changes take effect on February 1, 2021.

The current site identification process

Since 1997, a “site profile” process has been used to identify potentially contaminated sites in B.C. Where required by the EMA or CSR, a person must fill out a site profile form that contains a basic description of the site together with present and historical uses. Several identified gaps have resulted in the Ministry of the Environment and Climate Change Strategy replacing the site profile with a new screening process. Some of the weaknesses noted by commentators include:

• The multi-step site profile process is confusing, inefficient, and can be burdensome.
• Local governments can “opt-out”.
• The triggers for initiating the process are sometimes over-inclusive (e.g., minor zoning changes).
• The Director of Waste Management is required to review site profile forms and make a determination of whether a site inspection is necessary, which may cause undue delay.
• The site profile form can be completed by any person, making the declaration less accurate or reliable.
• Some exemptions are unclear or outdated, leading to inconsistencies in the process.
• Enforcement options are limited.

Amendments to the EMA

A significant change to the EMA brought about by the new law is the replacement of the term “site profile” with “site disclosure statement”.  This reflects the shift to a new site identification process based on the submission of a less detailed site disclosure statement followed by a mandatory preliminary site investigation in nearly all instances.‎¹‎ A preliminary investigation is a desktop historical study aimed at determining the likelihood that past or present activities on the site have caused contamination.

The following changes accompany the introduction of the site disclosure statement to address the recognized shortfalls in the current process:

• Clarifying the process and responsibilities by introducing new terms such as “operator of the property” and “specified industrial or commercial use”.
• Site disclosure statements are to be submitted to the Site Registrar instead of the Director of Waste Management.
• Specifying that every person who is required to provide a site disclosure statement to a government authority must complete a site investigation or submit certain other prescribed information about the environmental condition of the land.
• Simplifying when a site disclosure statement is required to be submitted for specified industrial or commercial use. These triggering conditions include an application for subdivision, change of use, development or building permits that involve soil disturbance or site closure.
• Repealing exceptions that could lead to situations where a contaminated site could be redeveloped without being remediated.

Amendments to the Contaminated Sites Regulation

The followings are some key changes to the CSR:

• The owner or operator of the site or their designated agent will be required to complete the site disclosure statement rather than “any person”.
• Automatic trigger: A submission of the site disclosure statement to the Site Registrar will automatically trigger a site investigation.
• Site closure definitions and triggers: The amendments add or revise definitions to clarify when site closure will require filing of a site disclosure statement and a site inspection.
  • For example, “decommissioning a site” or “ceasing operations” for 12 months or more will require the submission of a site disclosure statement within 6 months.
• Bankruptcy trigger: A company that owns, or operates on, a potentially contaminated site and has made an application for protection under the Companies’ Creditors Arrangement Act or files a proposal under the Bankruptcy and Insolvency Act, would be required to complete a site disclosure statement for all applicable land parcels within 90 days.
• Exemptions List updated and clarified: Revision to the exemptions list to improve clarity, consistency and scope with respect to site disclosure statements. Some notable changes include:
  • “Opt-out” exemption to be removed;
  • Oil and gas exemption to be added as it will be captured by the Oil and Gas Activities Act and relevant regulations;
  • Rezoning without change to the activity, subdivision in order to effect minor boundary adjustment, or lot consolidation will be exempted; and
  • Demolition, installing or replacing underground utilities, fencing or signage, paving, and landscaping will be exempted.
• The Schedule 2 Specified Industrial or Commercial Use List, which itemizes the activities or purposes that trigger the site disclosure processes, has been updated and clarified.
• Introduction of administrative penalties that can be imposed for failure to submit a site disclosure statement or complete a site investigation.

Forthcoming protocols

As part of implementing the new amendments that will come into effect on February 1, 2021, ten draft protocols for implementation of the amendments have been developed and posted for comment. Stakeholders who wish to have input into the final protocols may wish to review and comment on these draft documents. The deadline for public comments is Monday, January 11, 2021.