On February 1, 2021, several significant amendments to the Environmental Management Act, SBC 2003, c 53 (the “Act”) will come into force and which will result in a substantial overhaul of the Contaminated Sites Regulation, BC Reg 375/96 (the “CSR”). These changes reflect the efforts of the Province to streamline and clarify the process for addressing contaminated sites while addressing purported weaknesses within the previous regime through a mandatory investigation process for contaminated sites. With these amendments come a number of changes to the Act and applicable regulations that will impact local government responsibilities in the regulation of contaminated sites.
Site Disclosure Statements
The amendments to the Act repeal the definition of “site profile” and replace it with a “site disclosure statement”. The site disclosure statement is intended to provide a simplified process for identifying potential contaminated sites and will include, in most circumstances, a mandatory site investigation process. The investigation procedure is intended to assess whether past or ongoing uses on the subject property caused contamination to the site.
As it impacts local governments, section 40(1) of the amended Act requires that a person who knows or reasonably should know that a subject property has been used for a specified industrial or commercial use provide the approving officer or the local government, as applicable, a site disclosure statement when making an application for subdivision, zoning, or a development or building permit (if the development or building activity is likely to disturb the property’s soil). One of the most significant changes, from a local government perspective, is that the new regime imposes requirements on building permit applicants, and affects the authority of local governments to issue building permits, which until now has not been the case. Another significant change is that local governments will not have the ability to “opt out” of the receipt of site disclosure statements where they are required – until now the Contaminated Sites Regulation has allowed local governments to provide the Minister with written notice that they do not wish to receive site profiles under section 40(1).
As a result, local governments can expect to begin receiving site disclosure statements following the implementation of the new regime in February.
Responsibilities of a Local Government in Receipt of a Site Disclosure Statement
Once in receipt of a site disclosure statement, municipalities or approving officers are required to take a number of actions within 15 days of receiving the statement. This includes assessing whether the site disclosure statement is satisfactorily completed, notifying the person who provided the site disclosure statement whether or not it has been assessed as satisfactorily completed, and forwarding the satisfactory site disclosure statement to the Registrar of the site registry established under the Act.
In assessing a site disclosure statement, it is not necessary for the municipality or approving officer to conduct a search of records or archives maintained by the municipality or approving officer. Further, municipalities and approving officers are not required to keep a record of a site disclosure statement once they have fulfilled their obligations set out in the Act.
Consequential amendments to section 557 of the Local Government Act also require that, after submitting the site disclosure statement to the Registrar, the local government must wait before approving the land-use application until the local government has been advised by a director under the Act that the site is not contaminated or that remediation or other compliance measures have been approved in accordance with the Act. The new provisions are similar to the current provisions of section 557. One significant change, however, is that under section 557(3) and (4) a local government will be able to proceed with a rezoning application before receiving notice from a director, if the land is subject to a concurrent application for a development permit or building permit, and the site disclosure statement required in respect of the development permit or building permit has been assessed and forwarded to the registrar.
Local governments should also note that the enacting legislation contains transitional provisions under which the provisions of section 557, as they read before the amendments, will continue to apply to applications made before the date the new provisions come into effect.
Applicable Fees for Assessment of a Site Disclosure Statement
The amendments to the Act do permit municipalities and approving officers to charge a fee for an assessment of a site disclosure statement pursuant to section 40 (5) of the amended Act. It will be to the discretion of local governments to determine whether to charge such a fee and how much they will charge for the assessment of a site disclosure statement.
Exemptions from Submitting Site Disclosure Statement to Municipality
The amendments also introduce new provisions within the CSR which provide certain exceptions to the general requirement that a site disclosure statement must be provided when making a land-use application related to a property which has been used for specified industrial or commercial uses.
For example, a person seeking re-zoning is exempted from submitting a site disclosure statement if the property is being used for a specified industrial or commercial use and that use would continue to be authorized if the zoning were approved.
Another example exempts a person applying for a development or building permit, even if it will disturb the property’s soil, from having to submit a site disclosure statement if the permit being sought is solely for one or more of the following purposes:
- installing or replacing underground utilities;
- installing or replacing fencing or signage;
- paving; or
Despite these exemptions, a municipality or an approving officer is not barred from otherwise requesting as part of the permit approval application the information which would normally be provided in a site disclosure statement even though the person is not required under the Act to provide a site disclosure statement.
Municipalities Required to Provide Site Disclosure Statements when Zoning or Rezoning own Land
The amendments to the Act also require a municipality undertaking to zone or rezone land in which it has an ownership interest to provide a site disclosure statement to the registrar within 15 days of the first reading of the applicable zoning bylaw that will impact the zoning of the subject property.
However, if the municipality does not intend to develop any of its land that is located within the area being zoned or rezoned, the municipality is exempt from having to provide a site disclosure statement.
The amendments to the Act and the applicable regulations are intended to create a more stringent process for identifying and remediating contaminated sites throughout British Columbia. In doing so these amendments place a greater responsibility on local governments in their duty to receive and assess site disclosure statements. Local governments should be mindful to familiarize themselves with these changes and their expanded role in the new site disclosure statement regime.