On February 1, 2021, changes to the British Columbia Environmental Management Act and the Contaminated Sites Regulation (The Stage 13 Amendments) – Environment

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On February 1, 2021, changes to the Environmental Management Act and the Contaminated sites regulation(changes from Step 13) will come into effect, which will affect the redevelopment application process for land formerly used for specified industrial or commercial purposes. These changes will affect most subdivision, zoning, development permit and building permit applications for such lands, automatically requiring the applicant to undertake site surveys before the applications are approved. The changes could also lead to a proliferation of litigation, as developers / owners could seek to recoup increased development costs from the historic owners and operators responsible for any contamination on the land.

Site Disclosure Statements

Under the Step 13 changes, the province will replace the old “Site Profile” form with a new “Site Disclosure Statement” form as part of the site identification process. An owner or operator of land who knows or reasonably should know that the land has been used for one of the specified industrial or commercial uses – listed in the Annex 2 of the Contaminated sites regulation (Schedule 2 Activities) – will need to submit a site disclosure statement containing forward-looking and historical land use information before the owner or operator can redevelop that land.

The ministry clarified that the specified industrial or commercial uses relate to the actual use of the land, rather than the zoned use.

If you are applying for subdivision or rezoning, or building or development permits for any activity that may disturb the soil on the land, you must submit a site disclosure statement to the local government or the approving agent (the if applicable) unless you belong to one of the exemptions (more details below). The site’s disclosure statement is due at the time of your request.

In the site disclosure statement, you will need to identify which Schedule 2 activities have taken place on the site in the past, provide a brief summary of the intended activity and proposed use on the site, and provide an list of all government orders, permits, past or present. , approvals or other instruments relating to the environmental condition of the site.

Local government approvals and subdivision approvals

If a site disclosure statement is required, approval agents and local governments will not be able to approve certain subdivision or zoning applications, or issue development or building permits, until that a director of waste management has issued a certificate of compliance, approval in principle, a determination that the site is not contaminated or a Release. Each of these instruments will require some level of investigation into the environmental conditions of the site, as we will see below.

A waste management manager may provide a landfill if they determine that the lands will not present a significant threat or risk, or if they have received a remediation plan supporting independent remediation of the land. There is no time limit for when the director must process a request for such release. In addition, the ministry has indicated that it will not provide releases for the complex, phased redevelopment of the land. Instead, the ministry recommended that developers get approval in principle for these developments.

The changes in step 13 provide interim measures while you tap one of the director’s four instruments. The approving agent can approve a subdivision application if there are still zoning, development and / or construction permit applications pending for the same development on the same site, and the local government has assessed the declaration. disclosure of the site and forwarded it to the site registry. Likewise, local governments can approve zoning applications if there are still development and / or construction permit applications pending for the same development on the same site, and the local government has assessed the disclosure statement. of the site and sent it to the site registry.

Investigation requirements

In most cases, submitting a site disclosure statement as part of a specified subdivision, zoning, development permit, or building permit applications will automatically trigger the requirement for an environmental investigation and reporting. associates. To obtain the Director’s instrument that will allow final approval of the specified requests, you will need to submit, as a minimum, a preliminary site survey that meets the requirements of Section 58 of the
Contaminated sites regulation. If this preliminary site investigation indicates that the site is contaminated, you will also need to submit a detailed site investigation that meets the requirements of Section 59 of the Contaminated sites regulation.

These environmental investigations can cost tens of thousands of dollars, even for simple sites. Additionally, if surveys indicate that the land is contaminated, you may need to remediate the property before redeveloping it. The costs of such remediation can be significant. While the Environmental Management Act allows you to recover the costs reasonably incurred for this repair from the incumbent owners and operators, this cost recovery often requires litigation – which is itself costly and time consuming.

Derogations

The Step 13 changes provide certain exemptions from the requirement to submit a site disclosure statement (and therefore an exemption from the requirement to conduct environmental surveys).

You may be exempt if your site has already undergone certain processes as part of the Environmental Management Act. For example, if you have a valid and current certificate of compliance or approval in principle for a site and you are not aware of any other contamination that has occurred after issuance of this instrument, you may be exempt. Likewise, if the site is part of an environmental management area for which a manager has approved an extended remediation plan, you may be exempt. You may also be exempt if a manager has already determined that the site is not contaminated and you have no reason to believe that contamination has occurred at the site after the manager has made the decision.

Certain applications for development and construction permits are exempt from the site disclosure statement requirements. These include applications related to demolition, installation or replacement of fences, signage or underground utilities, paving and landscaping.

Some subdivision applications will not require a site disclosure statement. These include requests for subdivision of land in connection with a statutory right of way, minor adjustments to lot boundaries or the regrouping of two or more parcels into a single parcel.

Other Situations Where Site Disclosure Statements Are Required

The Stage 13 changes also impose requirements for decommissioning or ceasing operations at Schedule 2 activity sites, as described in our blog post here.

In addition, the following persons should file a site disclosure statement with the site registry if they know or reasonably should know that the relevant land has been used for a specified industrial or commercial use:

  • Trustees, receivers, liquidators or others who initiate foreclosure proceedings and who take possession or control of real estate for the benefit of creditors;
  • A landowner or operator who files an application for protection under the Companies’ Creditors Arrangement Act; and
  • A landowner or operator who files a proposal, or a notice of intention to make a proposal, under Part III of the Bankruptcy and Insolvency Law (Canada).

For a discussion of these requirements, see our blog post here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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