Update on Contaminated Sites Changing Legislation

1. Update on Contaminated SitesChanging Legislation John E.H. Ward Land Remediation Section Ministry of Environment February 25, 2011

2. Key offsite migration topics Ministry offsite migration initiatives • Current definitions • Development of legal provisions • 2002 regulatory amendments • Current protocols • Current procedure documents • 2006 offsite migration review • 2011 legislative amendment proposals • Future initiatives

3. Some current definitions “source site” – a parcel which has or had substances which migrated to one or more neighbouring parcels or areas. “affected site” – a parcel at which substances are present due to their migration from one or more neighbouring areas. “offsite migration” – the migration of contaminants or other substances from a source parcel to a neighbouring parcel where the source parcel and neighbouring parcel have different ownership or tenure.

4. Development of legislation Offsite migration was “not on the radar” • Not mentioned in early policy reviews Land Remediation Section – Environmental Management Branch

5. Contaminated sites legislation Waste Management Act provisions • Passed in 1993 • Came into effect April 1, 1997 • Only provisions for offsite migration deal with remediation liability • Who is responsible for paying the costs of remediation • Who is not responsible • “offsite migration” not defined

6. Contaminated sites legislation Responsible persons – Waste Management Act The following persons are responsible for remediation at a contaminated site that was contaminated by migration of a substance to the contaminated site: (a) Current owner or operator of the site from which the substance migrated (b) Previous owner or operator of the site from which the substance migrated

7. Contaminated sites legislation Responsible persons – Waste Management Act (c) A person who (i) Produced the substance, and (ii) By contract, agreement or otherwise caused the substance to be disposed of, handled or treated in a manner that, in whole or in part, caused the substance to migrate to the contaminated site. (d) A person who (i) Transported or arranged for transport of the substance, and (ii) By contract, agreement or otherwise caused the substance to be disposed of, handled or treated in a manner that, in whole or in part, caused the substance to migrate to the contaminated site.

8. Contaminated sites legislation Responsible persons – Waste Management Act 26.6 (1) The following persons are not responsible for remediation at a contaminated site: (i) A person who owns or operates a contaminated site that was contaminated only by the migration of a substance from other real property not owned or operated by the person. Note: Provisions for offsite migration were carried forward intact when the Environmental Management Act replaced the Waste Management Act in 2004

9. 2002 Regulation amendments Offsite migration notification • Vetted through the multi-stakeholder “CSIC” Contaminated Sites Implementation Committee • Stage 2 amendments to the Contaminated Sites Regulation addressed offsite migration • Section 57 (independent remediation) amended • Section 60.1 (site investigations) added

10. 2002 Regulation amendments Offsite migration notification (NOM) requirements A NOM is required • If a site investigation is underway • If independent remediation is underway • If ongoing monitoring is being carried out during site investigation or independent remediation AND One or more substances has migrated or is likely to have migrated to a neighbouring site and is likely causing contamination at the neighbouring site

11. 2002 Regulation amendments Offsite migration notification (NOM) requirements A NOM is not required • On the basis of historical information • When site investigations were completed in the past • When independent remediation was completed in the past

12. 2002 Regulation amendments Offsite migration notification (NOM) requirements • Notification information requirements specified in the regulations and Protocol 17 • Notification must be provided within 15 days of becoming aware of the situation • Notations placed on the Site Registry

13. 2002 Regulation amendments Site profiles • Site profiles screen for potential contamination before development occurs • Stage 2 amendments included new offsite migration triggers • New question about existing contamination arising from migration of substances from offsite • Sites affected by offsite migration of contaminants added to the list of commercial and industrial activities in Schedule 2 • Resulted in review of sites which previously would not be screened

14. Current protocols Protocols addressing offsite migration

15. Current protocols Protocol 6 • Specifies which applications for contaminated sites legal instruments must be made with the recommendation of an Approved Professional • In general, any application must be recommended by an Approved Professional for a • Non-high risk site • Determination of Contaminated Site • Contaminated Soil Relocation Agreement • Application for an affected site is ineligible unless written assurances are provided

16. Current protocols Protocol 6 written assurances required • For Approvals in Principle and Certificates of Compliance • By Approved Professional • Confirm works designed to prevent recontamination of the affected site will do the job if implemented • By current source site owner or operator • Confirm works recommended by Approved Professional will be implemented, operated and maintained for the source site • Current affected site owner or operator • Confirm works recommended by Approved Professional will be implemented, operated and maintained for the affected site

17. Current protocols Protocol 12 • Classifies sites as high risk or non-high risk • Sites are high risk if • Upper cap concentrations are exceeded and complete exposure pathways exist • Mobile nonaqueous phase liquids are present • Submission of Site Risk Classification Report (SRCR) required • With every Notification of Likely or Actual Offsite Migration • With every SRCR indicating potential/actual high risk conditions at a neighbouring parcel or area • 11% of SRCRs come from NOM submissions

18. Current protocols Protocol 17 • Contains forms • For Notifications of Likely or Actual Offsite Migration (NOMs) • For Notifications of Independent Remediation (NIRs)

19. Current administrative procedures Establishing the boundaries of a site Multiple parcels, one owner • Bordering parcels, one owner • Common source of contamination • Site borders derived from contamination borders or combined parcel boundaries

20. Current administrative procedures Establishing the boundaries of a site Two parcels, two owners • Bordering parcels, two owners • Generally each parcel is a separate site Site A Site B

21. Current administrative procedures Establishing the boundaries of a site Two parcels, two owners • Could be considered one site if both owners agree • Before making a decision, a Director should • Inform both owners of implications and responsibilities • Affected site owner could become responsible for source site contamination • Provide a 30 day opportunity for comment

22. 2006 offsite migration review Offsite migration RFP • Request for proposals issued in 2005 • Wanted recommendations to strengthen ministry ability to identify and address offsite migration • Sought a review based on provisions currently in use in North America

23. 2006 offsite migration review

24. 2006 offsite migration review Options and 31 recommendations • For changing the notification system (11) • For utilities issues (6) • For part-site approvals (8) • For liability (7) • Report released for public comment in late 2007 • Comments received, compiled and analyzed • Now awaiting opportunity for amendments

25. 2011 legislative amendment proposals General • Amendments to the Environmental Management Act’s contaminated sites regime proposed • Main item is to implement liability protection for vendors of sites • Commitment in past Throne Speeches • Key part of the provincial brownfields strategy • Foster redevelopment of mothballed sites • Other proposed amendments do not signal major policy shifts • Aim to clarify, streamline, correct errors

26. 2011 legislative amendment proposals Offsite migration liability issues • Lack of clear protection for affected site owners if substances flow through their sites and contaminate sites “downgradient” • New exemption as a responsible person proposed to protect affected site owners in this situation

27. Future initiatives • Environmental Management Act amendments hopefully this year • Regulation amendments would follow • Most Braul / Franz Environmental recommendations can be implemented in the Contaminated Sites Regulation • Guidance for Director under preparation • Deals with source site and affected site owner consultations when issuing contaminated sites legal instruments • Anticipate release this month or next, for public consultation and review

28. Information on offsite migration

29. Thank you! John.Ward@gov.bc.ca http://www.env.gov.bc.ca/epd/remediation/