The Province of British Columbia has issued an intentions paper on identifying contaminated sites. Among other things, the Province proposes to substantially change the role of local governments in the contaminated site identification process. Comment period on the intentions paper expires on July 31, 2016. Local governments should take note of the proposed changes and consider providing input to the Province.

The intentions paper can be viewed at the following link: http://www2.gov.bc.ca/gov/content/environment/air-land-water/site-remediation/contaminated-sites/cs-e-link-recent-messages

Currently, if a site has been used for a certain commercial or industrial activity (listed in Schedule 2 to the Contaminated Sites Regulation), a site profile form must be submitted to a local government upon subdivision, development or development variance permit, zoning, demolition or soil removal. If the site may be contaminated, the local government approval is "frozen" until one of the specified triggers occurs (for example, the Province authorizes the approval). The Regulation lists various exemptions to the site profile regime and allows local governments to opt out of the process (in other words, to not collect site profiles).

The Province proposes to modify (and – in the Ministry of Environment's view – simplify and clarify) the site profile process generally. Local governments, in particuar, should consider the following changes:

  • Site identification form will be simplified to remove questions about historical site use (Sections IV to IX on the current site profile form). However, to improve the accuracey about Schedule 2 activities (Section III on the current site profile form), proponents will be required to carry out specified information searches about historical use of the site (including historic and current land titles, local government records, city street directories, information by current and former owners, environmental and geotechnical reports and spill records);
  • Local governments will no longer be able to opt out of the site identification process;
  • Soil removal, subdivision and demolition will no longer trigger site identification process. Zoning and development permits will continue to trigger site identification, and building permit will be added as a new trigger for site identification. In the Ministry's view, the building permit is the most common local government approval required to redevelop a site. Adding it as a trigger justifies removing the triggers described above;
  • Unless an exemption applies, if a Schedule 2 activity has occurred, a site investigation will automatically be required. If contamination is present, remediation will automatically be required. Annual progress reports must be submitted for the duration of the project;
  • Local government approvals will not be "frozen". A determination that the site is not contaminated or a certificate of compliance must be obtained prior to the final building inspection or issuance of an occupancy permit. In the Ministry's view, the changes will minimize local government responsibilities and shift them from the planning to the building stage of development; and
  • A vendor of real property which has had a Schedule 2 activity will still be required to provide a site identification report to the purchaser. However, this site identification report will be for the purchaser only and will not need to be submitted to the Ministry. It will also not trigger a requirement for a site investigation.

The proposed regime will result in significant changes for local governments. For one, local governments who had opted out of the contaminated sites regime will be re-involved and will likely require additional staff (and administrative changes) to oversee the process. Also, the proposed shift of the remediation from planning to occupancy may require local governments to be involved (or at least kept appraised of) the remediation progress throughout the course of development. Enabling local government legislation would likely need to be amended to reflect local governments' revised role and risks of liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.