The BC Ministry of Environment is seeking input on two aspects of the contaminated sites regime, both involving local governments. In particular, the Ministry is reviewing the legislative scheme governing identification of contaminated sites and governing relocation of contaminated soil.
The details of any future legislative changes are sparse at this time. However, in discussion papers recently published on its website, the Ministry raises (among other things) questions about the ability of local governments to opt out of the contaminated sites regime, the authority to "freeze" development of contaminated sites, and the involvement of local governments in regulating the disposal of contaminated soil.
The discussion papers can be found at: http://www.env.gov.bc.ca/epd/remediation/requests_for_comments/index.htm.
Comments to the discussion papers are due December 10, 2014.
As mentioned above, the Ministry is reviewing certain aspects of the regulatory regime governing identification of potentially contaminated sites, and the disposal of contaminated soil. The following aspects of the review would be of particular interest to local governments.
(a) Development "freeze"
Under the current legislative scheme, local governments form part of the mechanism whereby the Province identifies contaminated sites.
In a nut-shell, a development applicant submits a site profile to a local government (this requirement may be triggered by zoning, demolition, development permit, soil removal or subdivision). The local government assesses the site profile and, in some instances, submits the site profile to the Province. If the site is contaminated, the development cannot proceed until the Province has issued a "release" (for example, an approval in principle or a certificate of compliance) in respect of the site. Local governments have the ability to opt out of this system, which some local governments have done.
In the discussion paper entitled "Identification of Potentially Contaminated Sites", the Ministry calls the current site profile process "confusing and inefficient, with significant administrative burden for all involved". It specifically criticizes the inconsistencies in the process resulting from local governments opting out of the system.
The Ministry suggests the following options for amending the local government process for site profiles:
- remove all or some triggers of local government involvement (zoning, soil removal, demolition, development permit and subdivision); or
- keep all the triggers as they are, but narrow instances in which these triggers will apply – for instance, only in case of redevelopment to a new use.
It is likely that the Province will also consider repealing (or narrowing) the ability of local governments to opt out of the site profile process.
(b) Soil relocation
The Environmental Management Act establishes a mechanism whereby the Province can track and regulate the deposit of soil from contaminated sites. In this regard, a soil relocation agreement between an owner of a source site, an owner of a receiving site and the Province is sometimes required.
In the discussion paper entitled "Prevention of Site Contamination from Soil Relocation", the Ministry observes that while there has been an increase in site remediation since the 1990s, there has been a decrease in the number of soil relocation agreements, possibly due to the "ignorance of the law or avoidance of regulatory obligations."
As part of the current review process, the Province is considering when a responsible party should give notice of contaminated soil relocation. One of the options is for the responsible party to notify a local government, rather than the Province, possibly as part of the local government's regulation of soil removal and deposit. No further details are available at this time.
We will be monitoring this development closely.
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