On February 1, 2021, amendments to B.C.'s Environmental Management Act and the Contaminated Sites Regulation (the Stage 13 Amendments) will come into effect which will affect the application process for redevelopment of lands formerly used for specified industrial or commercial uses. These amendments will affect most subdivision, zoning, development permit and building permit applications for such lands, automatically requiring the applicant to undertake site investigations before the applications are approved. The amendments could also see a proliferation of litigation as developers/owners may seek to recover the increased costs of development from historical owners and operators responsible for any contamination on the lands.
Site Disclosure Statements
Under the Stage 13 Amendments, 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 lands that knows or reasonably should know that the lands have been used for any of the specified industrial or commercial uses - listed in the amended Schedule 2 of the Contaminated Sites Regulation (Schedule 2 Activities) - will be required to submit a Site Disclosure Statement with prospective and historical information about the use of the lands before the owner or operator can redevelop those lands.
The Ministry has 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 for building or development permits for any activity that will likely disturb soil on the land, you must submit a Site Disclosure Statement to the local government or approving officer (as applicable) unless you fit into one of the exemptions (more on these below). The Site Disclosure Statement is due at the time of your application.
In the Site Disclosure Statement, you will need to identify which Schedule 2 Activities have occurred on the site historically, provide a brief summary of the planned activity and proposed use at the site, and provide a list of any past or present government orders, permits, approvals, or other instruments pertaining to the environmental condition of the site.
Local Government Approvals and Subdivision Approvals
If a Site Disclosure Statement is required, approving officers and local governments will not be able to approve some subdivision or zoning applications, or issue development permits or building permits, until a Director of Waste Management has issued a Certificate of Compliance, an 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 condition of the site, as we discuss below.
A Director of Waste Management can provide a Release if the Director determines that the lands will not present a significant threat or risk, or if the Director has received a remediation plan supporting independent remediation of the lands. There are no timelines for when the Director must process an application for such a Release. Furthermore, the Ministry has indicated that it will not provide Releases for multi-phase, complex redevelopment of lands. Instead, the Ministry has recommended that developers should obtain an Approval in Principle for those developments.
The Stage 13 Amendments do provide some interim relief while you seek one of the four Director instruments. The approving officer can approve a subdivision application if there are still specified zoning, development and/or building permit applications underway for the same development at the same site, and the local government has assessed the Site Disclosure Statement and forwarded it to the site registry. Similarly, local governments can approve zoning applications if there are still specified development and/or building permit applications underway for the same development at the same site, and the local government has assessed the Site Disclosure Statement and forwarded it to the site registry.
In most circumstances, the submission of a Site Disclosure Statement in connection with specified subdivision, zoning, development permit or building permit applications will trigger an automatic requirement for an environmental investigation and associated reporting. To obtain the Director's instrument that will allow for final approval of the specified applications, you will be required to submit, at a minimum, a Preliminary Site Investigation that meets the requirements of section 58 of the Contaminated Sites Regulation. If that Preliminary Site Investigation indicates that the site is contaminated, you will also be required 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. Furthermore, if the investigations indicate the land is contaminated, you may be required to remediate the property before you re-develop it. The costs of such remediation can be significant. While the Environmental Management Act does entitle you to recover the reasonably incurred costs of that remediation from historical owners and operators, that cost recovery often requires litigation - which is itself expensive and time-consuming.
The Stage 13 Amendments provide certain exemptions from the requirement to submit a Site Disclosure Statement (and therefore exemption from the requirement to conduct environmental investigations).
You may be exempt if your site has already undergone certain processes under the existing Environmental Management Act. For instance, if you have a valid and subsisting Certificate of Compliance or Approval in Principle for a site, and you are not aware of any further contamination that occurred after that instrument was issued, you may be exempt. Similarly, if the site falls within an environmental management area for which a Director has approved a wide area remediation plan, you may be exempt. You may also be exempt if a Director has already made a determination that the site is not contaminated and you have no reason to believe any contamination occurred at the site after the Director made the determination.
Some development and building permit applications are exempt from Site Disclosure Statement Requirements. These include applications in relation to demolition, the installation or replacement of fencing, signage, or underground utilities, paving, and landscaping.
Some subdivision applications will not require Site Disclosure Statements. These include applications for the subdivision of land in relation to a statutory right of way, minor lot boundary adjustments, or the consolidation of two or more parcels into a single parcel.
Other Situations where Site Disclosure Statements are Required
The Stage 13 Amendments also impose requirements for decommissioning or ceasing operations at Schedule 2 Activity Sites, as described in our blog post here.
In addition, the following people must file a Site Disclosure Statement with the site registry if they know or reasonably should know that the land involved has been used for a specified industrial or commercial use:
- Trustees, receivers, liquidators, or others who commence foreclosure proceedings, and who take possession or control of real property for the benefit of creditors;
- A land owner or operator who files for protection under, or becomes subject to, the Companies' Creditors Arrangement Act; and
- A land owner or operator who files a proposal, or a notice of intention to make a proposal, under Part III of the Bankruptcy and Insolvency Act (Canada).
For a discussion of these requirements, see our blog post here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.