If you own real property and you would like to sell it, or you are contemplating a rezoning application or re-development, you should be aware of your responsibilities under the Environmental Management Act (“EMA”), which regulates contaminated sites in British Columbia. You may be required to prepare and submit a site profile and if necessary, carry out environmental investigations on your property.
This brief article will lead you through the necessary steps.
When is a Site Profile necessary?
The site profile form summarizes information about potentially contaminated sites – including a basic description of the site and an overview of its past and present uses. Typically a site profile is created during a screening and is completed by a site owner or qualified consultant. The Contaminated Sites Regulation (“CSR”) contains a prescribed form for a Site Profile under Schedule I.
Site profiles are a screening tool used to identify potentially contaminated sites. Section 40(1) of the EMA requires that Site profiles be provided in situations where a person is seeking: an approval for a subdivision of land, a zoning application, a development permit or demolition permit, where the person knows or reasonably should know that the site was used for the industrial or commercial activity. Generally, they are completed and submitted to approving authority when potentially contaminated sites are:
- Being decommissioned
- In foreclosure proceedings
- Subject to local government applications and/or permits
- Being sold
Site Investigations
A site investigation is a primary method used for gathering detailed information about potentially contaminated sites. Landowners can have an investigation done without government involvement, but it should be carried out by experienced environmental consultants. Under the legislation, the Director of Waste Management at the Ministry of Environment (the “Ministry”) can order a site investigation when prompted by a site profile or other information.
Site investigations can be done in two stages – sometimes they are combined:
- Preliminary investigation: Searching existing records for information about a site, interviewing people who are or have been involved with the site, and determining the general location and degree of any contamination.
Preliminary investigations begin with what is either called a Phase I or Stage I investigation and are usually completed by an environmental consultant. The consultant conducts a site visit and looks at the current use of the property and also conducts various historical searches, all to determine if the site was used for an industrial or commercial purpose outlined in the Site Profile form listed as Schedule 1 CSR or prescribed activity outlined in Schedule 2 of the CSR. These searches include historical land title searches, municipal business records and phone directories, and historical aerial photographs. The goal is to determine whether the site has been used for a purpose of potential environmental concern.
- Detailed investigation: If the Phase I investigation reveal areas of potential environmental concern, more intrusive investigations may be required to determine if the site has actual areas of environmental concern and to what extent. These Detailed Site Investigations are usually called a Phase II or Stage II Preliminary Site Investigation.
These detailed investigations include intrusive investigations where shallow soil samples are taken, or boreholes are drilled on the site to obtain soil and groundwater data samples for analysis, to determine if there are actually any contaminants that exceed the CSR standards for soil and water. By carrying out these detailed site investigations, an environmental consultant works to determine the location, extent, and impact of contamination, including whether the contamination has migrated off the site.
If you or your environmental consultant determine that contamination has likely migrated onto to a neighboring property, under section 60.1 of the CSR you are obligated to notify that affected neighbor and the Ministry of Environment using a form prescribed by the CSR.
Environmental Standard Comparison
After a site is investigated, the findings are analyzed and compared with the environmental quality standards set out in the CSR.
The legislation categorizes standards using:
- Numerical standards: Acceptable concentrations of substances in soil, surface water, groundwater, vapor and sediments
- Risk-based standards: Acceptable risk levels from exposure to substances at sites
These standards are used to:
- Determine if a site is contaminated
- Determine when a site has been adequately cleaned up
- Determine when soil relocation may occur
- Identify potential safety hazards
The information gathered from this phase is usually sufficient to develop a remediation plan, or a human health / environmental risk assessment.
Remediation and Certificates of Compliance
If a site is contaminated and a person wants to remediate it, this is called independent remediation.
Independent remediation is permitted under the EMA as long as notification is given at the start and at the completion of remediation – about half of the sites being cleaned up in B.C. are handled this way.
With the assistance of qualified environmental consultants:
- Low-risk sites may only require routine remediation treatment methods that are readily available
- Remediation can be carried out with very little involvement from the government, which helps avoid unnecessary delays or paying fees
The Ministry must be notified of all independent remediation activities. It’s not enough to just submit a site profile at the start of the remediation process or a Certificate of Compliance application after remediation is completed. Official notification must be given within three days of starting any independent remediation activity and 90 days of completing independent remediation.
Certificate of Compliance
Once remediation is completed, a person may apply for a Certificate of Compliance (“CofC”).
After remediation is completed, a CofC may be issued when a site demonstrates compliance with remediation standards.
The Ministry may issue a risk-based or numerical CofC. A risk-based CofC means that contaminants of concern remain at the property but an environmental consultant has provided an opinion, to the satisfaction of the Ministry that this remaining contamination is not moving and is not harmful to human health or safety. Notwithstanding the risk-based CofC, the site is still considered a contaminated site by the Ministry.
A numerical CofC means that the site has been remediated to numerical standards and no contamination above certain standards remains at the site. The site is no longer considered a contaminated site under the EMA and CSR.
Conclusion
If your property has been used for an industrial or commercial purpose or is located adjacent or near a property used for an industrial purpose, the chances are that it may be contaminated. Following the steps outlined in this article will assist the property owner in navigating the owner’s responsibilities under the EMA and the CSR.
This easy to use flowchart outlines the steps a property owner may have to take:
WHAT WE DO: Lesperance Mendes has been advising and representing owners in all matters relating to contaminated sites. To find out more about how you can benefit from our advice and expertise contact Robert J. Lesperance at 604-685-8737 or rjl@lmlaw.ca.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.
Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567