Supports Item No. 6

P&E Committee Agenda
July 12, 2001

POLICY REPORT
ENVIRONMENT

Date: July 4, 2001
Author/Local: B.MacGregor 7627

RTS No. 1580

CC File No.3759

P&E: July 12, 2001

TO:	Standing Committee on Planning & Environment
FROM:	City Manager, in consultation with the General Manager of Engineering Services, the Director of Legal Services and the Manager of Environmental Protection
SUBJECT:	Soils Remediation on City Streets

RECOMMENDATION

A. THAT City streets be remediated to the residential standard for the top 3.0m and to the commercial standard below 3.0m, and at the discretion of the City Manager, the City may require the residential standard throughout.

B. THAT at the discretion of the City Manager, the City may accept cash payment to offset future transportation and disposal costs of soils in City streets that meet the commercial standard below 3.0m, but only if the following conditions are met:

(1) the Ministry of Environment has consented to the contaminants remaining in situ and has issued a Certificate of Compliance for those soils to the commercial standard or better;
(2) the Manager of Environmental Protection, having received and being satisfied with a written opinion from the developer's professional soils consultant to that effect, is satisfied that the contaminants have low or no mobility; and

(3) in the opinion of the General Manager of Engineering Services, the contaminants do not impact on existing underground utilities and there is little likelihood that such utilities will need to be placed within the commercial grade soils in the future.

C. THAT at the discretion of the City Manager, the City may accept contamination on City streets that are risk assessed rather than remediated, provided the Risk Assessment/Management Plan has been approved by the Ministry of Environment and an Off-Site Soils Agreement remains on title. This agreement is to be to the satisfaction of the Director of Legal Services, the General Manager of Engineering Services and the City Manager.

COUNCIL POLICY

In January 1990, Council adopted an interim policy for dealing with soils contamination issues pending the development of Provincial legislation and regulations.

In April 1997, after enactment of the Waste Management Amendment Act and its accompanying Contaminated Sites Regulations, and corresponding changes to the Vancouver Charter, Council directed staff to review its policies for contaminated sites for compliance with the legislation.

PURPOSE

This report provides information on City practice for the remediation of contaminated soil on City streets confirming its compliance with the legislative changes of 1997, and seeks Council approval for changes to City policy on this issue.

BACKGROUND

In January 1990, Council adopted an interim policy for dealing with soils contamination issues pending the development of Provincial legislation and regulations. As part of this interim policy, Council endorsed the concept that suspected contaminated sites were to be referred to the Ministry of Environment (MOE) for appropriate advice and that the City should not accept the transfer or dedication of contaminated lands from developers.

In April 1997, the provincial government enacted the Waste Management Amendment Act and its supporting Contaminated Sites Regulations. Together they defined the process and technical requirements for identifying and managing contaminated sites and established remediation standards for various contaminants based on the proposed land use. Consequential amendments to the Vancouver Charter (attached as Appendix A), gave the City the responsibility for ensuring adherence to the Waste Management Act in approving applications for development permits, rezoning, and subdivisions.

In response, the City's policies and practices developed as follows:
· Applicants for rezoning, subdivision, demolition, or development permit are required to fill out a site profile if their site has had past industrial or commercial uses.

· Site profiles indicating potential contamination are forwarded by the City to the MOE and City approvals are withheld until the MOE advises that either no further action is necessary or that further assessment/remediation is required.

· If remediation is required, City approvals are withheld until the MOE issues an Approval in Principle for the remediation plan. The City then requires the applicant to complete remediation before occupancy, securing this obligation either as a condition of development approval or with a legal agreement.

· Where contamination extends onto City street, the City requires the applicant to enter into an Off-Site Soils Agreement to secure the applicant's obligations to remediate and to indemnify the City.

DISCUSSION

Staff now have considerable experience in administering the existing policies on soil contamination and acknowledge that the City has two distinct roles that can, at times, suggest different approaches. This apparent conflict has not been easy to reconcile and staff have attempted to balance these roles in recommending the policy changes in this report.

The City as Regulator and Property Owner

As regulator, the City, under the authority of the Vancouver Charter, is responsible for adhering to the Waste Management Act in approving applications for development permits, rezoning, and subdivisions. Under that process, the standards of remediation are set by the Contaminated Sites Regulations and protection of the City as regulator from future liabilities.

The City, however, differs from most other municipalities in that, pursuant to the Vancouver Charter, streets in Vancouver are owned by the City, not the Crown. The City, as property owner, is consequently exposed to liabilities associated with contamination migrating from its property onto another party's. Normal City uses and activities on street have not led to or added to any soil contamination. The only exception is where soils have been imported which met the standards of the day but may not meet current standards. As a prudent property owner, potential future liabilities are to be avoided where possible and a higher test than that set by the legislation is suggested.

The challenge for the City is to balance its needs under these two roles such that it is adequately protected from future liabilities while still allowing commerce in the city to proceed.

Remediation Standards

In implementing the 1990 policy and with the enactment of the Waste Management Amendment Act, staff have continued to require that City streets be remediated to the
residential standard regardless of the depth of contamination and, with very few exceptions, that lands transferred or dedicated to the City by developers be remediated to the residential standard.

The Ministry's Contaminated Sites Regulations consider Streets as requiring remediation to the commercial standards, however the City, as the owner of the streets within our civic boundaries, has required the higher residential standard of remediation as protection from future costs and liability.

There is an argument that the City should just follow the Provincial Regulations but this discounts the City's ongoing ownership responsibility for the street. There is both the need and the opportunity to harmonize the Provincial Regulations and City objectives to clarify standards and application of agreements for on-street contamination.

If the City simply applies Provincial requirements, there will be increased costs in the future, when the City puts utilities into commercial grade soil on street. When commercial grade soil is excavated, it needs to be disposed of in a commercial landfill with costs of $4 -$6/tonne compared to residential disposal costs of $0 - $3/tonne.

Recommendation A proposed adoption of the Provincial Residential Regulations which means the top 3.0m remediated to the residential commercial standard and below 3.0m to the commercial standard.

Recommendation A also provides the flexibility by allowing the City Manager authority to require residential soil throughout if there are significant risks such as in the case of mobile contaminants.

Recommendation B suggests a financial contribution toward the disposal of soil from future utility installations which could offset worries of increased future City costs inherent in allowing the commercial grade soil to remain..

It is not proposed to set quantitative criteria on these conditions, as staff would have to evaluate the specifics of each site on an individual basis, taking into account all of the above-noted factors as a whole.

Risk Assessment

In cases where contamination exceeds the commercial standard and where it is not practical to remove contaminants, the Ministry may approve a Risk Assessment/Management Plan. In evaluating and approving Risk Assessment/Management Plans, the Ministry considers impacts to humans, animals, plants and the environment and involves quantifying the risks associated with leaving the contaminants in place. Solutions can be designed that allow attenuation of the contaminants over time and eliminate the risks or reduce them to appropriate levels. Before the City would consider accepting risk assessed contamination under its streets, staff would also assess potential impacts on existing and future utilities.

When dealing with property owners, staff will review the type of indemnities and securities provided and the risk assessment will only be accepted by the City subject to an Off-Site Soils Agreement to the satisfaction of the Director of Legal Services, City Engineer and City Manager.

CONCLUSION

As regulator, the City is responsible under the Vancouver Charter for administering aspects of the Waste Management Act , while as property owner, the City is obligated to protect itself from future costs and other liabilities. This report proposes the following changes:

· A revised remediation standard for City streets, and
· Acceptance of cash payment to offset potential future City costs.

By evaluating the City requirements on a case by case basis, these changes afford staff the flexibility to protect the City's interests while facilitating development in the city to proceed.

Waste Management Act APPENDIX A
571B. Despite anything in this Act, the Council or its delegate shall not approve an application for
(a) zoning,
(b) development permits,
© removal of soil,
(d) demolition permits respecting structures that have been used for commercial or industrial purposes, or
(e) activities prescribed by regulation under the Waste Management Act,
if the Council or its delegate
(f) has not received a site profile where required under section 26.1 of the Waste Management Act,
(g) has received a site profile but has not sent it to the manager under section 26.1 (5) of the Waste Management Act,
(h) has sent a site profile to the manager under section 26.1 (5) of the Waste Management Act but the Council or its delegate has not received notice that a site investigation under section 26.2 of that Act will not be required, or
(I) has not received a valid and subsisting approval in principle, conditional certificate of compliance or certificate of compliance under section 27.6 of the Waste Management Act from the person making an application described in paragraphs (a) to (e) of this section.
1993-25-14; 1997-25-208; 1998-34-313.
Agreements for regulating contaminated sites
571C. The Council may by bylaw enter into and implement an agreement referred to in sections 28.1 and 28.3 of the Waste Management Act.
1993-25-14; 1998-34-314.
Approval of bylaw
571D. A provision in a bylaw that prohibits the deposit of soil or other material and that makes reference to quality of the soil or material or to contamination, has no effect until the provision is approved by the minister with the concurrence of the Minister of Environment, Lands and Parks.
1993-25-14.

(c) 1998 City of Vancouver