1. Land Remediation Section – Environmental Management Branch Update on Contaminated Sites Changing Legislation John E.H. Ward Land Remediation Section Ministry of Environment February 25, 2011

2. Land Remediation Section – Environmental Management Branch 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 2

3. Land Remediation Section – Environmental Management Branch 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. 3

4. Land Remediation Section – Environmental Management Branch4 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 5

6. Land Remediation Section – Environmental Management Branch 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 6

7. Land Remediation Section – Environmental Management Branch 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. 7

8. Land Remediation Section – Environmental Management Branch 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 8

9. Land Remediation Section – Environmental Management Branch 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 9

10. Land Remediation Section – Environmental Management Branch 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 10

11. Land Remediation Section – Environmental Management Branch 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 11

12. Land Remediation Section – Environmental Management Branch 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 12

13. Land Remediation Section – Environmental Management Branch 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 13

14. Land Remediation Section – Environmental Management Branch Current protocols Protocols addressing offsite migration 14

15. Land Remediation Section – Environmental Management Branch 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 15

16. Land Remediation Section – Environmental Management Branch 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 16

17. Land Remediation Section – Environmental Management Branch 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 17

18. Land Remediation Section – Environmental Management Branch Current protocols Protocol 17 Contains forms For Notifications of Likely or Actual Offsite Migration (NOMs) For Notifications of Independent Remediation (NIRs) 18

19. Land Remediation Section – Environmental Management Branch19 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. Land Remediation Section – Environmental Management Branch20 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. Land Remediation Section – Environmental Management Branch21 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. Land Remediation Section – Environmental Management Branch 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 22

23. Land Remediation Section – Environmental Management Branch 2006 offsite migration review 23

24. Land Remediation Section – Environmental Management Branch 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 24

25. Land Remediation Section – Environmental Management Branch 2011 legislative amendment proposals General Amendments to the Environmental Management Acts 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 25

26. Land Remediation Section – Environmental Management Branch 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 26

27. Land Remediation Section – Environmental Management Branch 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 27

28. Land Remediation Section – Environmental Management Branch Information on offsite migration 28

29. Land Remediation Section – Environmental Management Branch Thank you! John.Ward@gov.bc.ca http://www.env.gov.bc.ca/epd/remediation/ 29