The BC government has released the Regulating Soil Relocation Final Policy Direction Paper (the Policy Paper), which outlines proposed changes to the Contaminated Sites Regulation under the province’s Environmental Management Act. The amendments follow consultation around the province’s intentions paper in early 2021 and may have significant impacts on property developers and the construction industry.
Bill 3 (the Environmental Management Amendment Act, 2020) was passed in March 2020 but is not yet in effect. Once it comes into force (which the Policy Paper indicates is anticipated to be later in 2022), it will amend the Environmental Management Act to enable a new process for relocating soil that, amongst other things, will extend regulatory requirements to uncontaminated soil.
Current regulatory regime
Currently, persons relocating “contaminated” soil (i.e., soil from a source site that exceeds the Contaminated Sites Regulation land use standards of a receiving site) must enter into a Contaminated Soil Relocation Agreement (CSRA) with the owner or operator of the receiving site as well as the BC Ministry of Environment and Climate Change Strategy (ministry). However, there is currently no ministry oversight of the relocation of uncontaminated soil.
The proposed new soil relocation regime both imposes requirements for relocating uncontaminated soil and makes changes to the regulatory regime governing relocation of contaminated soils.
New Notification Requirements
The proposed changes include eliminating CSRAs, which will be replaced with a Soil Relocation Notification Form (SRNF).
Generally speaking, persons who relocate more than 30 cubic metres of soil from a site on which “specified commercial or industrial uses” have occurred will need to complete a soil analysis to determine if the soils are contaminated or uncontaminated. For relocating uncontaminated soils, a person will need to submit an SRNF to the ministry. Contaminated soils will be managed under other existing ministry requirements, as discussed below. “Specified commercial or industrial uses” are set out in Schedule 2 of the Contaminated Sites Regulation, and include, for instance, certain chemical and electrical equipment industries, metal smelting and processing, mining, petroleum and gas processing and retailing, and wood and pulp and paper facilities.
Existing CSRAs or those submitted to the ministry before the new rules come into effect will not be subject to the new regime.
Soils that exceed the applicable land use standards of the receiving site will not be regulated under the new soil relocation process. Due to the elimination of the CSRA process, these materials will now be regulated under other existing ministry requirements, including authorizations under Part 2 of the Environmental Management Act and the Waste Discharge Regulation, independent remediation requirements, and Certificates of Compliance and Approvals in Principle.
Individuals who wish to relocate contaminated soils may be required to seek approval through one of these methods.
The Policy Paper sets out a number of proposed exemptions from soil relocation notification requirements in certain circumstances, including:
- Where soil will be relocated outside of the province;
- When the volume of uncontaminated soil is less than 30 cubic metres per job and involves relocations to a single receiving site during a project for a period of up to two years;
- When the soils constitute quarried material;
- When the soils constitute sand or related materials used in winter roadway maintenance; and
- Where the soil is used as preload (soil used temporarily on the surface of a site to compress the underlying soil for geotechnical purposes) that originates from a site without a Schedule 2 activity or use.
High Volume Receiving Sites
The Policy Paper also describes the ministry’s proposal to establish requirements for “high volume” receiving sites (proposed to be defined as sites receiving greater than 20,000 cubic metres of soil over the lifetime of the receiving site).
Ministry requirements propose to direct qualified professionals and approved professionals to develop soil management plans (SMPs) for high volume sites and to use their professional judgement to determine necessary protections. SMPs will require approval from an approved professional, and high volume sites are proposed to be subject to seasonal groundwater monitoring and soil containment requirements.
With the proposed changes to the soil relocation regulatory regime, project proponents, developers and landowners will need to know the applicable land use standards for their own sites, whether as potential receiving sites, or as sites from which soil will be relocated, and ensure compliance with the ministry’s new requirements.
The authors wish to thank Mackenzie Hayden, articling student, for his contributions to this legal update.