Proposed changes to B.C.’s soil relocation regulations — New testing and notification obligations
The Government of British Columbia is in the process of overhauling the legal regime regulating soil relocation in the province, with the stated objective of improving the soil relocation process, enhancing waste soil management, and limiting the amount of soil that ends up in landfills. These proposed changes, which we are told will come before cabinet for approval by the end of 2021, are likely to impact the construction industry, property developers, environmental consultants, operators of soil management sites, and those who intend to remediate their properties.
The overhaul of the soil relocation regime will be accomplished through two sets of amendments. The first set of amendments modify the soil relocation provisions of the Environmental Management Act (“EMA”). These were passed in March 2020 but are not in effect yet. The EMA amendments make two significant changes:
- First, the amendments eliminate the use of contaminated soil relocation agreements, currently the primary means by which the Ministry of Environment and Climate Change Strategy (the “Ministry”) regulates the relocation of “contaminated” soil (i.e., soil that is contaminated with a substance in excess of the numerical soil or vapour standards applicable to the site that will receive the soil).1
- Second, the amendments establish a framework for a new soil analysis and notification process for soil from sites where a specified industrial or commercial activity has taken place.2
A second set of amendments have yet to be approved. These were recently published by the Ministry in an Intentions Paper released on January 14, 2021 and will amend the Contaminated Sites Regulation (“CSR”) and Waste Discharge Regulation, under the EMA. These regulatory amendments, if they become law, will provide important details on the new soil relocation process and specify when this process will apply.
The current soil relocation process
Currently, the principal way in which a person can obtain authorization to relocate “contaminated” soil to another property (other than a landfill) is by entering into a contaminated soil relocation agreement with the Ministry, as well as the owner or operator of the receiving site. If, however, the soil is so contaminated (i.e., in excess of allowable limits for an industrial land-use), it is treated as “waste” and must be disposed of at an authorized waste management facility (unless special approval is obtained). At the present time, there is no ministerial oversight of relocation of “uncontaminated” soil, i.e. soil that meets the CSR’s contamination limits for the receiving site.
Significant regulatory amendments
To address the excessive complexity of existing soil relocation rules, reduce the burdens and delays associated with compliance with the relocation process, and reduce the amount of clean soil going to landfill, the Ministry drafted Bill 3 – the Environmental Management Amendment Act, 2020, which was passed into law in March 2020, and prepared an intentions paper outlining a series of changes to the soil relocation provisions of the CSR and Waste Discharge Regulation.
To facilitate the implementation of the new soil relocation process, the Ministry proposes a number of amendments to the CSR. Most notably these amendments specify when soil analysis and notification requirements apply to soil relocation activities and provide for exemptions. A person wishing to relocate soil is required to conduct a soil analysis and submit a notification of soil removal if
(i) the soil originates at a site where specified industrial or commercial activities have occurred, and
(ii) the soil to be relocated is greater or equal to 10 m3 (approximately one truckload) in volume.
The proposed amendments contemplate three circumstances in which notification will not be required:
- relocation of uncontaminated soil to a site located outside of B.C.;
- relocation of less than 10 m3 of uncontaminated soil from a single source site during a two year period; and
- relocation of “preload” (i.e., soil applied to the surface of a site to compress subsurface soils) from a site at which no specified industrial or commercial activity or use has taken place.
In addition, the Ministry proposes to exempt all federal lands from soil analysis and notification requirements, with the exception of federal Indian Reserve lands, as defined by the Indian Act.
The proposed amendments also prescribe soil testing and notification requirements. If applicable, prior to relocating soil, one must conduct soil quality testing in accordance with the Ministry’s Technical Guidance #1 document.
If a site is subject to the notification requirements, the person responsible for soil relocation, the owner or operator of the source site, or the owner or operator of the receiving site must submit a Soil Relocation Notification Certificate Form to the Ministry’s site registry. This form set outs information identifying the source site and receiving site, indicates whether a specified activity has taken place at the source site, and describes the amount and quality of the soil to be moved.
The person responsible for submitting the Ministry notification must also, two weeks prior to the soil relocation, notify municipal governments with jurisdiction over the source site or receiving site and any Indigenous Nations with land within a 1,000 m radius of a source or receiving site.
The proposed regulatory changes also:
- remove the requirement to conduct a soil vapour assessment prior to soil movement in certain situations where vapour contamination is unlikely to negatively impact people at the receiving site;
- set additional requirements for high-volume receiving sites if “uncontaminated” soil originates from a site where a specified use has taken place; and
- create administrative penalties for non-compliance.
Finally, the Ministry proposes to amend the Waste Disposal Regulation to close what it perceives as a gap in the regulation of waste soil. At present, soil relocation rules only address the movement of soil away from the source site. The Ministry proposes to introduce an amendment that clarifies when a waste discharge authorization will be required to move or dispose of waste soil on the site of origin.
Stakeholder consultation ongoing
These proposed regulatory amendments are still subject to revision and may change before a draft regulation is put before the provincial Cabinet for approval. Stakeholders wishing to provide feedback about the proposed changes have until March 15, 2021 to submit comments to the Ministry using a specific comment form available on the Ministry’s website.
