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Last month, amendments to British Columbia’s Environmental Management Act (“EMA”) and Contaminated Sites Regulation (“CSR”) came into force, altering how contaminated sites are identified in BC. When a site is classified as contaminated, it alerts the Ministry of Environment and Climate Change Strategy and ensures that contaminated sites are investigated and remediated. These regulatory changes seek to simplify the conditions that trigger the identification of contaminated sites as well as improve the contaminated sites regime.
Site investigation process altered
For potentially contaminated sites, the EMA and CSR previously required that individuals complete a site profile form detailing a site and its present and historical uses. The site profile process was often triggered through several actions, including spills, receipt of complaints regarding possible contamination, receipt of certain development applications, and when property-related decommissioning occurred.
The Province has replaced the “site profile” regime with a “site disclosure statement” system. This process applies to sites where certain industrial and commercial activities have occurred, as set out in the revised Schedule 2 of the CSR. A vendor of real property must provide a site disclosure statement to a prospective purchaser if the vendor knows or ought to know that the property has been used for a Schedule 2 land use.
Previously, any person could complete a site profile. Now, the owner or operator of a site (or their agent) must complete the site disclosure statement and submit it to the Site Registrar, who manages the site registry.
The amendments also include additional triggers that require the site disclosure statement process, including when an owner or operator:
- Decommissions a site;
- Ceases operations for twelve (12) months;
- Files an application for insolvency proceedings or for protection under the Companies’ Creditors Arrangement Act; and
- Applies for municipal approvals for zoning, building permits or development permits that involve any amount of soil disturbance.
If decommissioning a site or ceasing operations, the site disclosure statement must be submitted to the registrar within six (6) months. Site disclosure statements regarding creditor protection and insolvency proceedings must be provided to the registrar within 90 days after filing a proposal or filing for protection. Site disclosure statements in relation to municipal applications must be provided concurrently with an application. While municipalities could opt out of the previous site profile process, they are not exempt from the new site disclosure statement system.
Investigations & reporting
Previously, the Director of Waste Management would review site profile forms and determine whether a site inspection was warranted. The new site disclosure system now mandates automatic site investigations.[1]
When decommissioning or ceasing operations, the owner or operator of the site now must submit a Preliminary Site Investigation (“PSI”) to the Director in compliance with Section 58 of the CSR, followed by a Detailed Site Investigation (“DSI”) pursuant to Section 59 of the CSR if the PSI reveals that the site is contaminated.
Upon receiving a PSI or DSI, the Director will determine whether the investigation and related report comply with applicable regulations and, if needed, will demand additional investigation or reporting to follow applicable regulations and orders (EMA, S41(3)).
As the operator or owner is liable for all costs incurred in completing these investigations and reporting, (EMA, S41(2)), these amendments will increase costs for owners and operators of potentially contaminated sites.
Although owners and operators may have a cost recovery claim for reasonably incurred costs of remediation from previous owners and operators and others (EMA, S47), they likely have to incur litigation expenses to collect such costs.
Penalties for non-compliance
The recent amendments have also added new offences and associated penalties under subsection 120(17) of the EMA. The following omissions constitute offences under the Act:
- Failing to submit a site disclosure statement;
- Failing to undertake site investigations;
- Failing to submit reports on the site investigations; and
- Failing to provide a director with other prescribed information.
These, and other actions, are liable to a fine of up to $200,000, imprisonment for up to six months, or both. The introduction of these penalties suggests the Minister’s intent to enforce adherence to the new site disclosure system.
Commentary
Contaminants can threaten human health, the environment and safety. By automatically triggering site investigations and creating additional offences and penalties for non-compliance, these amendments will help identify potentially contaminated sites sooner. The burden of these regulatory changes, however, has landed primarily on the owners and operators of potentially contaminated sites, who will now face increased costs and responsibilities in adhering to this system.
For more information on these important changes to EMA and the CSR, please contact any of the authors noted above at 604.687.2242 or via email at cmcleod@millerthomson.com, sevans@millerthom.com, or shansen@millerthomson.com.
[1] Automatic site investigations are not required for vendors who provide a site disclosure statement to a prospective purchaser, unless contamination is identified at the site.
