Take Note – Changes Coming to BC’s Site Profile System

Back in January 2020, we posted about the proposed changes to BC’s site profile system to address the perceived gaps and weaknesses in the current site identification process. Well the time has come – those changes are about to become reality.

The amendments to the Environmental Management Act (“EMA”) and the Contaminated Sites Regulation (“CSR”) come into effect on February 1, 2021.

What is Site Identification?

Site identification is the process that brings sites to the attention of the Ministry of Environment (“MOE”) to ensure investigation and remediation of contaminated sites occurs before any redevelopment. The goal is to ensure both human health and the environment are being protected when sites are being redeveloped. This process applies to sites where specific industrial or commercial activities have occurred.

The New (and Improved) Site ID System

The new site identification system replaces the site profile form with the Site Disclosure Statement (“SDS”). Unlike the old system, which required “any person” to complete a site profile form, only the owner or operator of the site (or their designated agent) is permitted to complete the SDS under the updated legislation.

The SDS must be submitted to the Site Registrar and is based on the findings of a Preliminary Site Investigation, which includes a summary of the planned activity at the site, a list of any past or present permits, approvals, or certificates pertaining to the environmental condition of the site, and a list of any record searches completed in order to fill out the form (e.g., Land Title Searches, maps, directories, etc.). This helps determine whether there is a possibility that any activities (past or present) caused contamination on the site and whether further site investigation is required.

When is an SDS Required?

The changes to the EMA and CSR add clarity to the situations that require an SDS to be submitted. If an SDS is required it automatically triggers a site investigation and the filing of an investigation report with the MOE, that must be completed within one year of submitting the SDS and before any permits can be issued.

An SDS is required where:

• there has been an application for subdivision, change of use, development or building permits that involve soil disturbance on a site;
• a company who owns or operates a potentially contaminated site has made an application for protection under the Companies’ Creditors Arrangement Act or files a proposal under the Bankruptcy and Insolvency Act (SDS must be submitted in 90 days);
• an owner or operator ceases operations or decommissions a site (SDS must be submitted within 6 months);
• there has been a reportable spill of a substance as required by the Spill Reporting Regulation; or
• there has been a Schedule 2 use on a site.

Exemptions

Division 3 of the CSR will clarify and update the list of exemptions, which include exemptions for:

• a person who has submitted a site profile, under the old system, before February 1, 2021;
• owners and operators of sites that are an operating area within the meaning of the Oil and Gas Activities Act;
• sites that are already the subject of an approval in principle or certificate of compliance relevant to the current use of the site and have no reason to believe any further contamination has occurred after the approval or certificate was issued; and
• a person who only seeks a development or building permit for demolition, installing or replacing underground utilities, fencing or signage, paving and landscaping.

The most notable change is there will no longer be an “opt-out” provision for local governments, so municipalities will all be subjected to this process.

Schedule 2 Uses

As noted above, an SDS is required where a site has a Schedule 2 use. Schedule 2 of the CSR has been modified to update the activities listed under Specified Industrial or Commercial Use that are captured under the new system.

A submission of an SDS that indicates a Schedule 2 use automatically triggers a prohibition where approving authorities cannot approve any permits until the site obtains either: a certificate of compliance, approval in principle of a remediation plan, determination the site is not contaminated or a release notice. In order to obtain any of these documents, the site investigation must be completed.

Penalties

Of course, legislative changes are never complete without corresponding penalties for enforcement purposes. The impending changes include administrative penalties for failure to submit an SDS or complete a site investigation when required by the legislation, these fines can reach a maximum of $75,000.

The new administrative penalties are indicative of the MOE intention to ensure compliance and increase enforcement of the incoming rules.

Significance of New System

The new Site ID System attempts to address the criticisms that the old “site profile” system attracted and bring more certainty for owners, operators, and municipalities about when they need to engage with the Site ID System and what is required under the legislation. Broadly speaking, the new system is intended to become more consistent, reliable, and efficient.

However, these changes will significantly increase the number of sites that will have to go through this process and increase the time and cost for those owners/operators that are captured by the new system. Overall, these changes will bring more responsibility for owners and operators of contaminated sites.

If you own or operate on contaminated land, you may need to plan for additional time and cost of compliance with the new process. If you have any questions or comments about the new system and how to navigate these imminent changes, please contact Richard Bereti at rbereti@harpergrey.com or anyone else from our team listed on the Authors page.

This article was co-authored by Richard Bereti and Nicola Virk.

To stay current with new case law and emerging issues, consider subscribing to our Environmental Law Update and we’ll send helpful information straight to your inbox. Subscribe here.