Contaminated Sites Legislation

POLICY REPORT
ENVIRONMENT

Date: March 18, 1997
Dept. File No. EPB118
CC File No. 111-1

To: Vancouver City Council

From: Manager of Environmental Protection, in consultation with the
Approving Officer, Director of Planning, the City Building
Inspector, General Manager of Engineering Services, and
Director of Legal Services

Subject: Contaminated Sites Legislation

RECOMMENDATION

A. THAT Council direct staff to revise the current "interim
policy" for contaminated sites, to incorporate the Waste
Management Amendment Act (the "Act") and accompanying
Contaminated Sites Regulations, including a process for
reviewing of site profiles.

B. THAT the Mayor, on Council's behalf, write to the Minister of
Environment requesting: (a) that the review of the municipal
fee allowed by the Regulations for site profile assessment be
carried out immediately, and not await the three years as
proposed by the Minister; and (b) that the Act and Regulations
be amended at the earliest opportunity to adopt the
recommendations of the independent Canadian Bar Association
panel whose Report, dated June 5, 1995, advocated better
liability protection for local governments and approving
officers than currently provided in the legislation.

GENERAL MANAGER'S COMMENTS

The General Manager of Community Services RECOMMENDS approval of A
and B.

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COUNCIL POLICY

Council established the City's interim policy for contaminated sites
in January of 1990, with amendments in March of 1991. The policy is
based on recognition that the Ministry of Environment, Lands and Parks
(MOE) is, and should continue to be, the lead agency concerned with
contaminated sites in British Columbia. Under the "interim policy", the
City refers sites with possible contamination problems to the MOE when
applications for rezoning, subdivision and development permits are
received. The City withholds approvals until favourable commentary is
received from the MOE on the site assessment and remediation plans
prepared by the site owners or developers.

PURPOSE

The Waste Management Amendment Act and accompanying Contaminated Sites
Regulations become effective April 1, 1997. As Council is aware, this
legislation puts into effect the "polluter pay principle" and
establishes a wide class of parties as "responsible persons" for
contaminated sites.

The legislation also puts in place a number of new administrative
processes. The most significant is the requirement that municipalities
and approving officers review site profiles when the City receives
applications for zoning, subdivisions, development permits and
demolition permits at sites which have, or have had, a selective type of
commercial or industrial use (Schedule 2 of the Regulations). Pursuant
to the Act and the amendments to the Municipal Act and Vancouver
Charter, approvals must be held on applications for zoning,
subdivisions, development permits and demolition permits at contaminated
sites until the Ministry of Environment has issued an
Approval-in-Principle or a Certificate of Compliance or a Conditional
Certificate of Compliance.

The new legislation will require the City to make changes in our current
processes (mainly at application stages) and this report seeks Council's
approval to effect those changes.

The Regulations contain a fee schedule that allows municipalities to
charge up to $50 for the site profile reviews. Staff feel this is
inadequate to recoup the costs associated with this function and request
that a fee review be implemented immediately and not await the three
years as proposed by the MOE.

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BACKGROUND

Amendments to the Act and Regulations recommended by an independent
panel of Canadian Bar Association lawyers have yet to be enacted. These
amendments will improve the liability protection for municipalities and
approving officers and should be put in place as soon as possible.
Contaminated sites legislation, under the Waste Management Amendment
Act, was passed in June of 1993. Regulations to accompany the Act went
through four drafts culminating in an Order-in-Council on December 17,
1996, bringing the Act and Regulations into effect as of April 1, 1997.

The Regulations have gone through a very extensive review and redraft
process involving City staff, the UBCM, other municipalities, numerous
industry sectors and property owners/developers. The City's concerns
have included the potential for liability associated with approving
developments of contaminated sites, the need to address contamination
existing on City streets and property, and the migration of
contamination from and to City property.

The City, on its own initiative and also in conjunction with the UBCM,
brought to the attention of the Ministry during the drafting of the Act
and Regulations a number of deficiencies in the immunity provided to
local governments and approving officers in acting under the new
legislation. In early 1995, the Ministry submitted our concerns to an
independent panel of lawyers (members of the Canadian Bar Association)
for evaluation. The Panel's Report, dated June 5, 1995, has
substantiated our concerns. While the Ministry has indicated that it
will seek appropriate amendments to the Act and Regulations, this has
not yet been done.

DISCUSSION

Until the enactment of amendments to the immunity provisions occurs, the
liability issues will remain a concern. The legislation does provide
some immunity in regard to the approving processes, but this immunity is
only provided if the municipality and approving officer participate in
the site profile review process. It is also legally preferable to move
the protection from the Regulations, where it is now largely contained,
to the Act itself. Further, immunity must be afforded to municipalities
and approving officers acting pursuant to consequential amendments which
have been made to the Vancouver Charter, the Municipal Act and the Land
Title Act. At the moment, there is no liability protection given with
respect to actions under these amendments, which prohibit the granting
of subdivision, rezoning, and development approvals until various steps
have been undertaken. The recommendations of the Canadian Bar
Association panel address these and other concerns.

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The following is a brief review of some of the key provisions of the new
legislation:

A. Site Profile Review

A site profile is a form (Schedule 1 of the Regulations) that asks
questions about the past and present uses of a site. A site
profile is required if the site was used for an
industrial/commercial use as indicated in a list provided in
Schedule 2 of the Regulations and must be provided by an owner or
agent when an application is made for zoning, subdivision,
development and demolition permits. The City must review the site
profile to determine whether it has been filled out properly and if
any of the questions have been answered "yes". The City must send
the "yes" site profiles to the MOE's Regional Manager within 15
days. The City and the Approving Officer cannot grant approvals
until the Regional Manager either informs us that no further action
is required or that further assessment is needed. In the latter
case, the City would need to receive an Approval-in-Principle, or a
Certificate of Compliance, or a Conditional Certificate of
Compliance, before the City grants approval on the application.
Site profiles which do not need to be sent to the Regional Manager
are sent to the Provincial Site Registry.

B. Opting Out

The Ministry has incorporated into the Regulations an option for
municipalities to opt out of the site profile review process. A
municipality that chooses to opt out must file written notice
with the Minister that it does not wish to receive site profiles.
Although this would relieve liability concerns around site profile
administration by local governments, it would not address or solve
the liability concerns which would still exist in respect to the
development of contaminated sites. The City would be compelled,
nonetheless, to continue to develop and maintain its own screening
process and approval procedures for contaminated sites. There is
immunity now afforded within the Regulations for administration of
site profiles. This immunity is of some value and will be improved
if and when the amendments noted earlier are enacted. Staff are of
the view that opting out of site profile administration would not
remove the City s or the Approving Officer's obligation to hold
approvals pending receiving the clearances from the MOE as required
by the Act. If the City does not administer site profiles, then
information may not get onto the Site Registry, and the City,
instead, will be required to keep and provide this information to
the public and other interested sectors such as developers,
realtors, financial and legal institutions. There is also a
greater risk that sites could be missed if site profiles are not
reviewed.

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C. Site Registry

The Site Registry will be a database where information about sites
will be made available to the general public. Staff feel this will
provide a notice mechanism for persons who are contemplating some
involvement with a contaminated site and reduce the City s use of
covenants under Section 215 of the Land Title Act for this purpose.
Covenants may still be required, however, for such matters as
determining when remediation would take place in conjunction with a
subdivision, road or park dedication, for example. Occupancy
permits would continue to be issued only after a Certificate of
Compliance or a Conditional Certificate of Compliance has been
provided.

D. Process Change

The City's interim process for contaminated sites is very similar
to the requirements contained in the Act and Regulations. One
difference is that the City carried out the initial screening by
reviewing present and archival information on uses of a site when
an application was made for rezoning, subdivision, and development
permits; this will now be done by the applicant when completing the
site profile.

Staff have questioned whether we should continue to do such reviews
to verify and confirm information found on the site profiles. The
Act and Regulations do not require a municipality to "look behind"
information provided by the site profile, but the municipality may
forward conflicting or additional information to the Regional
Manager and, if so, must also inform the applicant with the
relevant information. The City feels the continuation of our
present policy provides the best protection that sites will not be
missed. Such sites always have a potential to have contaminants
which could contaminate City property (streets, lanes, sidewalks,
etc.). The City is unique in that the roads are owned by the
City, not the Crown, as is the case in most other municipalities.

The City has taken, and should continue to take, a direct role with
respect to contamination on City property or property which will be
dedicated to it. The liabilities associated with ownership of
contaminated soil is onerous from a number of views, such as costs
and options for treatment and/or removal and disposal, effects of
contaminants on utilities, (for example, the City's water and sewer
lines) and on private utilities, (gas and telephone lines) and the
possible migration of contaminants from City property back to the
originating site or to an adjacent site. The City will continue to
address these concerns through contractual agreements with the
responsible parties.

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The first area needing to be addressed for the April 1st
implementation is the training of all staff who are affected,
particularly those in the zoning, subdivision, development and
demolition permit areas. This will include providing overviews of
the legislation, the requirements imposed by the Regulations and
the method for tracking of applications. Staff from the City,
other municipalities and MOE have met to discuss the
municipalities' needs from an administration perspective. The MOE
will provide forms and standard letters which will be used to
direct applicants in the process.

The City will continue to funnel applications through one
co-ordinating point, presently the Environmental Protection Branch
in the Permits & Licenses Department. This area will be
responsible for tracking and providing clearances for applications.

E. Fees

The fee schedule in the Regulations allows municipalities to charge
up to $50 for assessing site profiles; the MOE has stated that this
would be reviewed in three years. Staff, through the experience
gained in the last seven years of dealing with soil contamination
issues, feel that $50 is inadequate to cover the costs for time
spent answering applicants questions, giving direction on how to
find the information necessary to fill out the site profile,
sending the document to the appropriate bodies within the required
time frames and in the tracking to assure that approvals are not
given until clearance has been received from the Regional Manager.

CONCLUSION

The Waste Management Amendment Act and its accompanying Regulations
concerning contaminated sites in British Columbia will come into effect on April 1, 1997. The new process for approving of zoning, subdivision,
development and demolition permits is not unlike the interim process
that Council approved in 1990. Staff recommend that site profile
reviews should be carried out by staff and that the Minister be asked to
review the fee for doing so. The Minister should also be requested to
ensure the timely passage of amendments to the immunity provisions of
the Act. Update reports will be provided to Council once staff have
experience with the effects of the new legislation.

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