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| 2003 Issue No. 1 |
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| Inside: |
• Construction Related Nosocomial Infections
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Changes to the Contaminated Sites Regulation
by Lori C. Larsen, B.Sc., P.Ag.With the entry of the Liberal government in BC a wave of "Core Reforms" has swept through the various provincial ministries and the Ministry of Water, Land and Air Protection (MWLAP) is not exempt. In its Service Plan Summary 2002/03 to 2004/05, MWLAP has stated that it will have some strategic shifts in the provision of its services. The main changes are shown in the Table 2 below, taken from the BC MWLAP Service Plan Summary.
Specifically, the ministry will put more emphasis on planning functions such as developing clear environmental standards and performance expectations, and expanding partnerships and on checking functions such as ensuring compliance through monitoring, auditing and public reporting, and using enforcement where necessary. The approach to 'doing' functions or activities will change; for example, site-specific waste permits or authorizations will be replaced by performance-based regulations or guidelines where appropriate.
Advisory Panel on Contaminated Sites
In order to begin to implement this strategic service shift, MWLAP struck the "Advisory Panel on Contaminated Sites" to review Part 4 of the Waste Management Act (WMA) and the Contaminated Sites Regulation (CSR). Submissions to a four person panel occurred over the summer and fall of 2002 and resulted in an interim report in September 2002. The recommendations in the report will be used to support the development of a new policy framework for the regulation of contaminated sites and will eventually be used to support legislation changes, originally planned for Spring 2003 but will likely be written and effected in 2004. The full interim report of the Advisory Panel can be reached by going through the BC MWLAP web site: http://wlapwww.gov.bc.ca/epd/epdpa/contam_sites/ministers_panel/ministerspanelreport.html
The report gives twelve recommended changes which are designed to help the strategic shift in service delivery of MWLAP, help produce a financial self supporting ministry and to encourage protection of the environment, rather than fear of liability. Three of the recommendations are discussed below.
Focusing Remediation Only on "High Risk" Sites: One of the basic assumptions of the interim report is that much time is being wasted remediating sites that do not have a significant potential or actual risk of health, safety and the environment. The goal is to only have rigorous review and ministry involvement with those sites that are posing serious concerns, also known as "high risk". The less risky sites ("limited risk" and "no risk") will be able to go through a stream lined process that will be much faster, with less regulatory red tape.
Creation of the Licensed Environmental Professional: In order to free up MWLAP to deal with the high risk sites, the panel recommends the introduction of the Licensed Environmental Professional (LEP). Wider in scope than the current Roster of Professionals, this stand-alone, independent system will complete site assessment, risk identification, remedial plan design and remediation. This will effectively split the workload between the ministry and the professional consulting arena. While splitting the workload helps streamline MWLAP by reducing the number the sites they need to attend to, the other goal is to reduce the bureaucracy required to obtain closure to sites that are contaminated. The LEP will have the authority to "sign off" on the "no" and "limited" risk sites. If this recommendation is implemented it will greatly reduce any waiting on MWLAP for review and issuance of the needed "no further action" letter, currently now known as the "certificate of compliance" and the "conditional certificate of compliance".
An important concept for buyers and sellers of property that has been remediated is the proposal of not allowing the reopening of a "no further action letter" unless there was deceit, misrepresentation, failure to maintain required risk management systems, emergencies related to the presence of an unrecognized imminent risk and common law actions related to off-site contamination. This means the standards that will govern a remediation are those that were in effect at the time of remediation. If the standards get stricter in the future, there is no risk of re-opening investigation into a site once it has been issued the "no further action" letter.
Limiting Liability
Other concepts that are discussed for limiting liability include: "prospective purchaser exemptions", "broader plume exemptions" and "contractual agreements".
The panel also recommends revisiting the "joint, several and retroactive liability clause" in the current legislation and replace it with more finite and certain liability.
The Controversy of the Proposed Recommendations
The current legislation had its roots back in the late 1980's when the provincial government became involved with contaminated sites policy during the sale of the former Expo '86 site. MWLAP, then known as BC Environment, developed the required standards in 1988. In 1989, they were used as the basis for the standards policy for all contaminated sites in BC, and in 1991, they were adopted nationally as a basis for guidance for the rest of Canada. The current CSR legislation, brought into law in April 1997, had three to five years of community consultation prior to implementation.
The current schedule for the major revamp of the legislation was originally scheduled for nine months to a year. Given the controversy over the proposed changes back in 1997, it will be interesting to see how the stakeholders react to such a quick change. One of the public watchdogs of the government is the West Coast Law Society. They published a response to the Advisory Panel Report that can be found at: http://www.wcel.org/wcelpub/2002/13887.pdf. The West Coast Law Society states that the interim report does not justify their need for change and that the current legislation provides most of the recommended actions.
Business As Usual
As the proposed changes are still in debate, it is business as usual for the environmental industry and all environmental consultants will continue to use the current CSR and existing system until the changes are enacted.
PHH is willing to help any of our clients understand the current environmental law changes and if you have any questions about this article please contact Lori C. Larsen. P.Ag. at our Richmond Office, llarsen@phhenv.com or 604-244-8101 ext. 224.
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Lori C. Larsen, P.Ag. Senior Project Manager Lori Larsen is the Senior Environmental Manager in our Richmond Office. Lori has a Bachelor of Science (Agriculture) with a specialization in Soil Science from the University of British Columbia. Lori has thirteen years of prior experience as an environmental and agricultural consultant. Lori co-ordinates and conducts environmental site assessments, contaminated site investigations and site remediations. |
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