On February 1, 2021, new reporting requirements in British Columbia will apply to owners and operators of lands that have been used for specified commercial and industrial uses. These reporting requirements will also trigger environmental investigation requirements to determine whether or not the lands are contaminated.
While the B.C. government believes this will streamline the site identification process, the changes will also increase the regulatory burden and costs for owners and operators of lands used for specified commercial and industrial uses. We also expect that the amendments could lead to a proliferation of litigation – as more owners and operators are required to conduct environmental investigations of their properties, they may seek to recover those costs from historical owners and operators through a cost recovery action under the Environmental Management Act.
Site Disclosure Statements
The pending changes to the Environmental Management Act and the Contaminated Sites Regulation, known as the Stage 13 Amendments, will replace the old “Site Profile” regime with a new “Site Disclosure Statement” regime. After February 1, 2021, owners and operators must submit Site Disclosure Statements to the Site Registrar if they undertake certain actions on lands that they know, or reasonably ought to know, have been used for any of the specified industrial or commercial uses set out in the revised Schedule 2 of the Contaminated Sites Regulation (Schedule 2 Activities). Virtually all of the Stage 13 Amendments flow from the move from Site Profiles to Site Disclosure Statements.
There are a number of situations that would trigger the Site Disclosure Statement requirements, including:
- subdivision and municipal applications for zoning, building permits, or development permits;
- insolvency proceedings; and
- decommissioning a site or ceasing operations on the lands in question.
Decommissioning and Ceasing Operations
The Stage 13 Amendments change the reporting requirements in relation to decommissioning sites used for Schedule 2 Activities. Previously, owners and operators were required to provide Site Profiles when treating or removing soil or undertaking certain deconstruction activities that would significantly reduce or change the use of the site. Now, owners and operators must submit a Site Disclosure Statement if they engage in certain works, including treating or removing soil, or removing, destroying, or treating buildings or process equipment (including storage tanks), in a manner designed to stop all Schedule 2 Activities at the site.
The Stage 13 Amendments also introduce new requirements for ceasing operations at a site. Owners and operators of lands used for Schedule 2 Activities will now be required to submit Site Disclosure Statements if they cease a Schedule 2 Activity at a site, and no other Schedule 2 Activity takes place on the site for 12 months. The introduction of this requirement is notable because it does not require the owner or operator to take active steps to do anything with the site – instead, it is the absence of activity that will lead to reporting requirements.
The owner or operator must submit the Site Disclosure Statement to the Site Registry within six months of decommissioning a site, or within six months of all Schedule 2 Activities having ceased at the site for 12 months.
Site Disclosure Statements will typically trigger automatic requirements for environmental investigations. When decommissioning or ceasing operations at a site, an owner or operator will be required to submit, at minimum, a Preliminary Site Investigation. If the Preliminary Site Investigation indicates the site is contaminated, a Detailed Site Investigation will also be required. Under the old regime, a Director of Waste Management had discretion as to whether environmental investigations were required – now, the requirement for environmental investigation is automatic. These investigations must be complete within one year of submitting the Site Disclosure Statement, unless a Director orders otherwise.
There are several exemptions from the requirement to submit a Site Disclosure Statement and conduct site investigations. These exemptions include situations where:
- An owner or operator has already obtained some form of clearance from a Director – such as a Certificate of Compliance, an Approval in Principle, or a determination that the site is not contaminated – so long as the owner or operator has no reason to believe there would be additional contamination at the site since the Director issued that clearance.
- In the context of decommissioning or ceasing operations at a site, if there is more than one owner or operator of the site where the Schedule 2 Activities took place, one Site Disclosure Statement is sufficient for all of the owners or operators.
- The municipal application is for a development or building permit related to:
- Installing or replacing fencing, signage, or underground utilities
Despite these exemptions, a Director of Waste Management or a municipality or approving officer – in the context of a municipal or subdivision application – can require the owner or operator to submit a Site Disclosure Statement. A Director may also impose investigation requirements.
Oil and Gas Lands
The Stage 13 Amendments include consequential amendments to the Oil and Gas Activities Act. The Oil and Gas Commission will no longer play a role in assessing or forwarding Site Disclosure Statements to a Director of Waste Management. However, the Stage 13 Amendments recognize that the Oil and Gas Commission has its own standards for remediation. As a result, oil and gas activity permit holders no longer need to meet the requirements of the Environmental Management Act in order to obtain a Certificate of Restoration – instead, they will need to meet the requirements of the Oil and Gas Activities Act and any additional requirements imposed by the Oil and Gas Commission.
Will practices civil litigation and dispute resolution, with a focus on environmental, public utility, and regulatory law. He has worked on due diligence with respect to potential environmental liabilities in major corporate ...
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