On February 1, 2021, important changes to the BC Environmental Management Act (EMA), Contaminated Sites Regulation (CSR) and Local Government Act (LGA) came into effect. These changes are part of an ongoing process by the BC Government to address outdated and inadequate legislation, regulation and policy, as well as systemic problems with the BC Professional Reliance regime. Our Executive Director, Suzanne Senger, was fortunate to have been able to work with BC NGOs and government to have input into the review process and bring a local issue to the forefront of the reviews.
Some of the changes to the EMA and CSR that came into effect on February 1 relate directly to the remediation of the High Risk Contaminated Site of the former Hyak Marine Ways, the site of the proposed The George project in Gibsons. Contentious issues with the site revolved around a Site Profile submission, local government approvals process, and technical oversight of remediation.
A Site Profile is (was) an administrative form which an applicant must fill out when they submit a development application for a contaminated site. Previously, local governments could choose to receive and forward this Site Profile form to the BC Ministry of Environment (MoE) at the time an application was submitted. They could alternatively ‘opt out’ of receiving the form and forwarding it to the province. If they opted out, the applicant simply had to submit to the province themselves.
When The George applicant submitted spot-zoning and development permit applications on February 1, 2013, the application materials indicated that a Site Profile had been submitted with the application package. But the Site Profile was not actually submitted. Under the EMA, CSR and LGA, the submission of a Site Profile with a development application, triggers a “freeze” on local government zoning and permitting approvals until the site is properly remediated. By omitting to file the Site Profile, the applicant avoided the freeze and oversight by the BC MoE for many years.
From 2014-2016, local citizens identified and pointed out missing and inaccurate information provided to the Town of Gibsons and BC MoE by the applicant. In 2016, MoE finally forced the applicant to submit the Site Profile. But by that point, spot-zoning had been achieved. By mid-2017, development permits were also issued for Environmentally Sensitive, Geo-technically Hazardous and Aquifer Protection, even though experts had determined the project was high-risk, likely to blow out the aquifer and/or contaminate the drinking water supply and violated the Water Sustainability Act.
A local non-profit organization, the Gibsons Alliance of Business and Community, challenged the development permits in the BC Supreme Court in 2017 but lost the case. The court concluded that the petition must fail on its merits because the CSR "exempted the Local Government from a statutorily mandated role" in site profiling through the “opt out" option. Because of this exemption, the court said, “the prohibition against issuing development permits in the LGA does not arise”. In his view, “the permits could lawfully issue in the absence of the Director’s confirmation of receipt and acceptance of a Site Profile or a notice of independent remediation.” This decision gave rise to problems that could simply not be reconciled under the intent of the law. In 2018, the Province amended the EMA to remove the “opt out” provision in the Act. In early 2019, the Town of Gibsons chose to opt back in to the Site Profile process, as changes to the legislation, regulation and policy made their way through the system
On February 1, 2020, the new laws came into effect. The Site Profile was been replaced with a Site Disclosure Statement and the "opt out" provision was finally removed. Now, every person in BC who is required to provide a Site Disclosure Statement for a contaminated site must automatically complete a site investigation and submit an investigation report.
‘Freeze’ of Local Government Approvals
The EMA, CSR and LGA and various MoE policies and protocols have now been clarified to ensure that approving officers and local governments understand they must not approve subdivision or zoning applications, or issue development permits or building permits for a contaminated site until an MoE Director has issued a Certificate of Compliance, an Approval in Principle (AIP), a Determination that the site is not contaminated, or a Release.
‘Release’ of a Freeze
A Director can only provide a Release (of a Freeze on approvals) if they determine that the lands in question will not present a significant environmental threat or risk, or if the Director has received a Remediation Plan supporting independent remediation of the lands and is no longer able to provide a Release for multi-phase, complex redevelopment of lands. Instead, developers will need to obtain an Approval in Principle for those developments.
In the case of The George, which is a multi-phase project that presents a significant threat, the applicant is no longer eligible for a Release. At this stage, the technical development permits issued for The George project in 2017 have expired or must be amended. If an applicant wishes to move forward to develop the high risk contaminated site, they will have re-do the permitting process. Permitting will remain frozen until an AIP is approved by the MoE, or a Certificate of Compliance (that the site has already been remediated and remediation approved by MoE) has been achieved.
Further changes to various protocols and polices will be rolled out over the next couple of months which will also improve how contaminated sites remediation in BC is handled. More information can be found on the BC Government website here.