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B.C. Reg. 375/96
O.C. 1480/96
Deposited December 16, 1996
effective April 1, 1997

Environmental Management Act

Contaminated Sites Regulation

Note: Check the Cumulative Regulation Bulletin 2015 and 2016
for any non-consolidated amendments to this regulation that may be in effect.

[includes amendments up to B.C. Reg. 184/2016, July 19, 2016]

Link to Point in Time

Part 1 — Interpretation

Definitions

1  In this regulation:

"agricultural land use" means the use of land for the primary purpose of producing agricultural products for human or animal consumption including, without limitation, livestock raising operations, croplands, orchards, pastures, greenhouses, plant nurseries and farms;

"aquatic life water use" means the use of water as habitat for any component of the freshwater or marine aquatic ecosystem, including phytoplankton, zooplankton, benthos, macrophytes and fish;

"background concentration" means the concentration of a substance in an environmental medium in a geographic area, but does not include any contribution from local human-made point sources, determined by following director's protocols;

"cancer risk" means the probability of the occurrence of cancer from exposure to a carcinogenic substance;

"carcinogenic substance" means any chemical classified by

(a) the International Agency for Research on Cancer as a group 1 or group 2A carcinogen, or

(b) the United States Environmental Protection Agency as a group A or group B1 carcinogen;

"commercial land use" means the use of land for the primary purpose of buying, selling or trading of merchandise or services including, without limitation, shopping malls, office complexes, restaurants, hotels, motels, grocery stores, automobile service stations, petroleum distribution operations, dry cleaning operations, municipal yards, warehouses, law courts, museums, churches, golf courses, government offices, air and sea terminals, bus and railway stations, and storage associated with these uses;

"confirmation of remediation report" means a report under section 49 (2) (b);

"decommission a site" means the removal, destruction or treatment of soil, process equipment or buildings, including the removal of storage tanks, in a manner designed to stop or reduce a significant portion of the operations at a site or to significantly change the use of the site;

"director's interim standards" means the substances and risk based or numerical criteria, standards and conditions prescribed by the director under section 63.1 of the Act;

"director's protocol" means a protocol established by a director under section 64 of the Act;

"drinking water use" means the use of water for the purpose of consumption by humans;

"environmental media" means soil, sediments, surface water, groundwater, air, vapour, animals and plants;

"environmental risk assessment report" means a report under section 18 (6) or 18.1 (5);

"external contract reviewer" means a person with whom a director has entered into a contract under section 10 (1);

"generic numerical sediment criterion" means the concentration of a substance specified in Schedule 9 for a particular sediment use;

"generic numerical soil standard" means the concentration of a substance in soil specified for a particular land use in Schedule 4 or Schedule 10;

"generic numerical vapour standards" means the concentration in vapour of a substance specified for a particular land use in Schedule 11;

"generic numerical water standard" means the concentration of a substance in water specified for a particular water use in Schedule 6 or Schedule 10;

"guidelines" includes criteria and objectives;

"hazard index" means the sum of hazard quotients for any substance over all exposure pathways;

"hazard quotient" or "HQ" means the quotient determined from the equation

HQ = EDI

RfD

where

"EDI" is the estimated daily intake (in milligrams per kilogram of body weight per day) for any substance having non-carcinogenic deleterious effects, and

"RfD" is the reference dose which is an estimate of the maximum daily exposure level (in milligrams per kilogram of body weight per day) to a substance that is unlikely to produce an appreciable risk of non-carcinogenic deleterious effects during a lifetime of exposure to that substance;

"industrial land use" means the use of land for the primary purpose of conducting industrial manufacturing and assembling processes and their ancillary uses including, without limitation, factories, metal foundries, wood treatment facilities, mines, refineries, hydroelectric dams, metal smelters, automotive assembly plants, rail car or locomotive maintenance facilities, railyards, non-retail breweries and bakeries, roads and highways, wastewater and sewage treatment plants, electrical transformer stations and salvage yards;

"irrigation water use" means the use of water for the purpose of producing hay, forage crops, pasture, cereal crops, vegetables and fruit;

"livestock water use" means the use of water for the purpose of consumption by livestock;

"matrix numerical soil standard" means the concentration of a substance in soil specified for a particular land use and a particular site-specific factor in Schedule 5;

"medical health officer" means a medical health officer as defined in the Health Act ;

"numerical standards" means generic numerical soil standards, generic numerical vapour standards, generic numerical water standards, matrix numerical soil standards, generic numerical sediment criteria, director's interim standards and site-specific numerical standards;

"ownership interest", when used in Part 2, means

(a) a fee simple interest,

(b) a lease or similar form of tenure respecting real property having a term, including any option to renew, equal to or exceeding 30 years, or

(c) a licence of occupation under section 39 of the Land Act having a term, including any option to renew, equal to or exceeding 30 years,

but does not include an interest in the nature of

(d) a mortgage,

(e) a right of way,

(f) a tenure under the Forest Act ,

(g) a lien,

(h) a judgment,

(i) an interest in real property which deals exclusively with subsurface rights including a tenure under the Geothermal Resources Act , the Mineral Tenure Act or the Petroleum and Natural Gas Act ,

(j) an option to purchase,

(k) an equitable charge,

(l) a restrictive covenant,

(m) a covenant under section 219 of the Land Title Act , or

(n) a right to purchase an ownership interest;

"Provincial health officer" means the Provincial health officer appointed under the Health Act ;

"remediation plan" means a written document which may include, but is not necessarily limited to, plans and other information respecting

(a) overall site location and delineated horizontal and vertical locations of contamination presented in maps, cross-sections and other graphic representations,

(b) remediation alternatives which were considered for managing contamination from or at a site, and evaluation methods used to assess the factors under section 56 of the Act,

(c) remediation methods selected to ensure compliance with the numerical standards, or the risk based standards prescribed in this regulation, and the conditions imposed by a director under section 53 of the Act or in a remediation order,

(d) identification and classification in accordance with the numerical standards of the substances in any soil, surface water, groundwater, sediment or vapour to remain in place,

(d.1) identification and classification in accordance with the numerical standards of the substances in any soil or sediment to be relocated,

(e) risk assessment calculations and methodology to demonstrate compliance with risk-based remediation standards if remediation is assessed relative to the risk-based remediation standards,

(f) a schedule with estimated dates for implementing remediation,

(g) identification and discussion of the effects of known regulatory requirements on remediation, including any authorizations which will be required to implement remediation,

(h) proposed confirmatory sampling, analysis, testing or monitoring during and after treatment, management or removal of contamination,

(i) proposed measures and controls to ensure security, including covenants under section 219 of the Land Title Act , restrictive covenants and financial security in accordance with section 48 of this regulation, for ongoing management of any contamination if it will be managed at the site, and

(j) any public consultation or review of remediation which has occurred or which is proposed during remediation;

"residential land use" means the use of land for the primary purpose of

(a) a residence by persons on a permanent, temporary or seasonal basis, including, without limitation, single family dwellings, cabins, apartments, condominiums or townhouses, or

(b) institutional facilities, including, without limitation, schools, hospitals, daycare operations, prisons, correctional centres and community centres;

"right of way" includes

(a) an easement,

(b) a statutory right of way, and

(c) a limited interest in the land or a licence or a permit that grants the right to construct, operate or maintain works of a lineal nature on, over or under land;

"risk assessment" means the systematic process of identifying and evaluating substances, persons potentially affected, and exposures to the substances in order to estimate cancer risks or hazard indices in accordance with a director's protocol;

"risk management" means actions, including monitoring, designed to prevent or mitigate risks to human health or the environment caused by contamination at a site;

"screening level risk assessment" means a screening level risk assessment and report described in a director's protocol;

"sediment" means particulate material that usually lies below water;

"sensitive sediment use" means the use as habitat for sensitive components of freshwater, marine or estuarine aquatic ecosystems of a site containing sediment, which sensitive components include, but are not limited to,

(a) phytoplankton, zooplankton, benthos, macrophytes and fish,

(b) habitats used by endangered or threatened species or species of special concern under the Species at Risk Act (Canada),

(c) watercourses, wetlands, forested riparian areas, mudflats and intertidal zones that are important to the preservation of fish or wildlife,

(d) reaches of aquatic habitats that are important to fish spawning or serve as important rearing habitat for fish,

(e) reaches of aquatic environments that encompass or border habitat compensation or restoration sites or other areas that are intended or designed to create, restore or enhance biological or habitat features, and

(f) areas and aquatic habitat included in wild life management areas designated under the Wildlife Act ;

"site profile form" means the form prescribed in Schedule 1;

"site-specific numerical standard" means the concentration of a substance in soil, water, sediment or vapour

(a) determined for a particular land, water, sediment or vapour use at a specific site by applying the applicable director's protocol, and

(b) approved by the director;

"soil" includes

(a) unconsolidated mineral or organic material,

(b) rock,

(c) fill, and

(d) sediment deposited on land,

but does not include the following, which are applied to land for a beneficial purpose in compliance with the Organic Matter Recycling Regulation or an authorization given under the Act:

(e) sewage sludge;

(f) composted organic materials;

(g) products derived from the materials described in paragraph (e) or (f);

"summary of site condition form" means the form set out as Schedule 1.1;

"typical sediment use" means the use of a site containing sediment for a use that is not a sensitive sediment use;

"urban park land use" means the use of urban land for the primary purpose of outdoor recreation including, without limitation, municipal parks, fairgrounds, sports fields, rifle ranges, captive wildlife parks, biking and hiking areas, community beaches and picnic areas, but does not mean wildlands such as ecological reserves, national or provincial parks, protected wetlands or woodlands, native forests, tundra and alpine meadows;

"vapour" means gaseous emissions from soil, sediment or water;

"wide area remediation plan" means a remediation plan for a wide area site for one or more specific substances which have originated from one or more sources specified in the plan;

"wide area site" means a site which is designated by a director under section 14;

"wildlands land use" means the use of land for the primary purpose of supporting natural ecosystems, including the use of land for ecological reserves, national or provincial parks, protected wetlands or woodlands, native forests, tundra and alpine meadows, but does not include uses defined as urban park land use.

[am. B.C. Regs. 244/99, s. 1; 17/2002, s. 1; 109/2002, s. 7 (a); 419/2003, s. 1; 322/2004 and 324/2004, s. 1; 201/2007, s. 1; 343/2008, s. 1.]

Part 2 — Site Profiles

Scope of "industrial or commercial" purpose or activity

2  (1) A person is exempt from the duty to provide a site profile under section 40 (1), (2), (3), (6) and (7) of the Act with respect to industrial or commercial purposes and industrial or commercial activities which are not described in Schedule 2.

(2) Despite subsection (1), a municipality or approving officer may request a person who makes any type of application described in section 40 (1) of the Act to complete sections I to III and XI of the site profile form and provide it to the municipality or approving officer.

[am. B.C. Regs. 244/99, s. 2; 17/2002, s. 2; 322/2004 and 324/2004, s. 2.]

When site profiles must be provided

3  (1) Subject to section 4, a person described in section 40 (1) of the Act must provide a site profile at the time of presenting, in writing, an application or request for approval described in that section of the Act.

(2) Subject to section 4, a municipality undertaking to zone or rezone land in which it has an ownership interest described in section 40 (1) (b) (i) of the Act must provide a site profile to a director not later than 15 days after giving first reading to the applicable bylaw.

(3) Subject to section 4, an owner of real property described in section 40 (2) (b) of the Act must provide a site profile not less than 10 days before the time the owner dismantles a building or structure, or otherwise decommissions a site which was used for an industrial or commercial purpose or activity listed in Schedule 2.

(4) Subject to section 4, a permit holder under the Oil and Gas Activities Act who is described in section 40 (3) of this Act must provide a site profile at the time the permit holder presents, in writing, an application for a certificate of restoration respecting a well or facility under the Oil and Gas Activities Act .

(5) and (6) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 3 (c).]

(7) Subject to section 4, a vendor of real property described in section 40 (6) of the Act must provide a site profile to a prospective purchaser at least 30 days before the actual transfer of the real property, but if the time between the written agreement for the transfer and the actual transfer is less than 30 days, the vendor must provide the site profile before the date of the agreement for the transfer.

(8) A person described in section 40 (7) of the Act must provide a site profile to a director no later than 10 days after the person takes possession or control of the real property.

[am. B.C. Regs. 244/99, s. 3; 322/2004 and 324/2004, s. 3; 286/2010, s. (a).]

Exemptions respecting the providing of site profiles

4  (1) Subject to subsection (3), a person is exempt from the duty to provide a site profile under section 40 of the Act if any of the following apply:

(a) a site profile has been filed on the site registry and the information in sections II to X of the site profile form accurately reflects the person's current knowledge about the site;

(b) the site is the subject of an approval in principle or certificate of compliance relevant to the current use of the site and any use proposed by the person, but only if the person has no reason to believe that there has been any additional or new contamination at the site after issuance of the approval in principle or certificate of compliance;

(c) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 4 (d).]

(d) the site is the subject of a certificate of restoration issued under the Oil and Gas Activities Act or the Petroleum and Natural Gas Act , but only if the person has no reason to believe that there is contamination at the site that is not otherwise addressed in the certificate of restoration;

(e) the site is located within a wide area site for which

(i) a director has approved a wide area remediation plan or the scope of a proposed wide area remediation plan, and

(ii) the site profile would only be provided due to uses or activities that caused contamination which is dealt with in the approved wide area remediation plan or the approved scope of a proposed wide area remediation plan;

(f) the site is the subject of a determination under section 44 of the Act, but only if the person has no reason to believe that, since the determination,

(i) in the case of a site determined not to be contaminated, there has been any contamination at the site, and

(ii) in the case of a site determined to be contaminated, there has been any new or additional contamination at the site.

(2) Subject to subsection (3), for a site remediated before April 1, 1997, a person is exempt from the duty to provide a site profile under section 40 of the Act if

(a) the site was the subject of correspondence from an official at the Ministry of Water, Land and Air Protection or any predecessor ministry indicating that remediation of the site was carried out in a manner that substantially satisfies the remediation standards of this regulation respecting the current use and any use proposed by the person,

(b) there has not been a change in the primary land use or water use at the site after the remediation described in paragraph (a), and

(c) the person has no reason to believe that there could have been any new contamination of the site after the date of the correspondence referred to in paragraph (a).

(3) Subsections (1) and (2) do not apply to a person to whom section 40 (7) or (8) of the Act applies.

(4) A person is exempt from the duty to provide a site profile to a municipality or approving officer under section 40 (1) of the Act with respect to any site within a municipality if the municipality or approving officer has filed written notice with the minister that the municipality or approving officer does not wish to receive site profiles under section 40 (1) of the Act.

(5) An applicant for a subdivision under section 114 of the Land Title Act is exempt from the duty to provide a site profile under section 40 (1) (a) of the Act.

(6) A municipality undertaking to zone or rezone land is exempt from the duty to provide a site profile under section 40 (1) (b) (i) of the Act if

(a) the municipality does not have an ownership interest in the land, or

(b) the municipality

(i) does not intend to develop the parcel or parcels of land that it owns within the area being zoned or rezoned, and

(ii) at the time it is undertaking to zone or rezone the land it commits in writing to a director to submit a site profile when development of the land begins, unless it is exempted when development of the land begins from the requirement to submit a site profile under other provisions of the Act and this regulation.

(7) An applicant for a development permit or a development variance permit is exempt from the duty to provide a site profile under section 40 (1) (b) (ii) of the Act if the activity which the permit allows does not involve any disturbance or excavation of soil.

(8) If a person is required to provide a site profile under both section 40 (1) (b) (iv) and 40 (2) (b) of the Act, the person is exempt from the requirement to provide a site profile under section 40 (2) (b) of the Act.

(9) A person is exempt from the duty to provide a site profile under section 40 (1) (b) (iv) and (2) (b) of the Act if

(a) the demolition or dismantling is of a temporary camp or a temporary facility if the camp or facility is associated with the construction of rights of way for exploration for or development of any of the following resources:

(i) petroleum;

(ii) natural gas;

(iii) mineral;

(iv) geothermal energy,

(b) the buildings or structures to be demolished or dismantled are not associated with decommissioning a site, or

(c) the demolition does not involve any disturbance or excavation of soil other than that which is incidental to the demolition.

(10) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 4 (d).]

(11) A vendor of real property is exempt from the duty to provide a site profile under section 40 (6) of the Act in respect of real property which is not an ownership interest as defined in section 1.

(12) A vendor of real property is exempt from the duty to provide a site profile to a director under section 40 (6) of the Act.

(13) A vendor of real property is exempt from the duty to provide a site profile to a prospective purchaser under section 40 (6) of the Act if

(a) the prospective purchaser waives, in writing, the right to be provided with a site profile,

(b) at the time of contract for purchase and sale, the subject property of the sale is used primarily for residential purposes, or

(c) at the time of the contract for purchase and sale, the subject property has never been zoned for any use other than primarily for residential purposes.

[am. B.C. Regs. 244/99, s. 4; 17/2002, s. 3; 109/2002, s. 1; 322/2004 and 324/2004, s. 4; 343/2008, s. 2; 286/2010, s. (b).]

Duty to provide a satisfactorily completed site profile

5  The obligation of a person to provide a site profile under section 40 (1), (2), (6), (7) and (8) of the Act and under this regulation is not satisfied until the person provides all the site profile information required by the site profile form.

[am. B.C. Regs. 322/2004 and 324/2004, s. 5.]

Assessing and forwarding site profiles

6  (1) For the purposes of section 40 (4) of the Act, a municipality that, or approving officer who, receives a site profile must, within 15 days after receiving it,

(a) assess whether the site profile in Schedule 1 is satisfactorily completed in accordance with the instructions provided by the director,

(b) notify the person who provided the site profile if the site profile is not satisfactorily completed,

(c) forward a satisfactorily completed site profile to

(i) a director if any question is answered in sections IV to IX of the site profile with a "yes" response, or

(ii) the registrar if subparagraph (i) does not apply, and

(d) notify the person from whom the site profile was received whether or not it has been forwarded to a director under paragraph (c) (i).

(2) For the purposes of section 40 (4) of the Act, on receipt of a site profile the commission must, within 15 days after receiving it,

(a) assess if the site profile is satisfactorily completed,

(b) notify the person who provided the site profile if the site profile is not satisfactorily completed, and

(c) forward a copy of the satisfactorily completed site profile to the registrar.

(3) A municipality, an approving officer and the commission do not have a duty arising under the Act or this regulation

(a) to store, file or otherwise manage a site profile provided to the municipality, approving officer or commission after discharging the duties set out in subsections (1) and (2), or

(b) to disclose to any person

(i) whether the municipality, approving officer or commission possesses a particular site profile, or

(ii) the contents of a particular site profile,

unless the disclosure is requested by the person who provided the site profile.

(4) A municipality or approving officer, on receipt of an application specified in section 40 (1) of the Act without a site profile, may submit information to a director indicating that the municipality or approving officer believes the subject lands of the application have been used for a use specified in Schedule 2.

(5) Subsection (4) applies only if the municipality or approving officer

(a) provides an opportunity for the applicant to review and comment on the information which the municipality or approving officer intends to submit to the director, and

(b) submits the information and the applicant's review and commentary to the director.

(6) A municipality that, or approving officer who, receives a site profile that does not need to be forwarded to a director under subsection (1) of this section and section 40 (4) of the Act may, despite those provisions, submit the site profile to the director if

(a) any response in the site profile conflicts with or is inconsistent with the knowledge or information possessed by the municipality or approving officer,

(b) the person who provided the site profile has been provided an opportunity to review and comment to the municipality or approving officer on knowledge or information referred to in paragraph (a), and

(c) the knowledge or information referred to in paragraph (a) and the commentary referred to in paragraph (b) is sent to the director at the time of submitting the site profile.

(7) For the purposes of exercising the power under this section, a municipality, an approving officer and the commission do not have a duty to conduct a search of the records or archives maintained by the municipality, approving officer or commission.

(8) A municipality that, or approving officer who, submits to a director the information under subsection (4) or a site profile under subsection (6) is deemed to not forward the site profile under section 40 (4) (b) of the Act, but is deemed to carry out a power, duty or function under Part 4 of the Act.

[am. B.C. Regs. 244/99, s. 5; 322/2004 and 324/2004, s. 6; 239/2007, s. 1.]

Duties of a director and the commission after receiving a site profile

7  (1) Subject to subsection (2), a director must, within 15 days after receiving a site profile, notify

(a) the municipality that, or approving officer who, forwarded the site profile, and

(b) the person who provided the site profile

whether or not the director intends to require or order a preliminary site investigation or a detailed site investigation under section 41 of the Act.

(2) The director may extend the time for notification under subsection (1) to a maximum of 30 days if the extension is necessary to obtain information to determine whether or not a preliminary site investigation or a detailed site investigation will be required or ordered, and in doing so the director must inform the persons described in subsection (1) of

(a) the duration of the extension, and

(b) the nature of the information required.

(3) Subject to subsection (4), the commission, within 15 days after receiving a site profile under section 40 (3) of the Act, must notify the person who provided the site profile whether the commission intends to require or order a preliminary site investigation under section 41 of the Act.

(4) The commission may extend the time for notification under subsection (3) to a maximum of 30 days if the extension is necessary to obtain information to determine whether or not a preliminary site investigation will be required or ordered, and in doing so the commission must inform the persons described in subsection (3) of

(a) the duration of the extension, and

(b) the nature of the information required.

[am. B.C. Regs. 322/2004 and 324/2004, s. 7.]

Part 2.1 — Summaries of Site Condition

Duty to provide director with summary of site condition

7.1  (1) A person applying for, requesting or seeking approval, consideration, review or a determination of any of the following in relation to a site must provide a summary of site condition, together with a recommendation by an approved professional in respect of the matter, to the director:

(a) a determination under section 44 of the Act [determination of contaminated sites];

(b) a determination under section 50 of the Act [minor contributors];

(c) a voluntary remediation agreement under section 51 of the Act;

(d) an approval in principle under section 53 (1.1) of the Act;

(e) a certificate of compliance under section 53 (3) of the Act;

(f) a contaminated soil relocation agreement under section 55 of the Act;

(g) if the site is one to which Part 5 of the Act applies, a transfer agreement referred to in section 67 (1) (a) [advanced exploration sites] or 68 (1) (a) [producing or past producing mine sites] of that Part;

(h) if the site is one to which Part 5 of the Act applies, indemnification for the site under the Financial Administration Act ;

(i) a covenant to be registered under section 48 (1) of this regulation;

(j) a preliminary site investigation report;

(k) a human health risk assessment or environmental risk assessment report;

(l) a detailed site investigation report;

(m) a remediation plan;

(n) a confirmation of remediation report;

(o) a report respecting local background concentrations of substances.

(2) A summary of site condition must set out the information necessary to complete the summary of site condition form.

[en. B.C. Reg. 239/2007, s. 2; am. B.C. Reg. 343/2008, s. 3.]

Part 3 — Site Registry

Site registry

8  (1) For the purposes of section 43 (2) (f) of the Act, a director must provide the registrar with information respecting each of the following that the director enters into, makes, receives, issues or has knowledge of, as applicable:

(a) a contaminated soil relocation agreement entered into under section 55 of the Act;

(b) a decision under section 41 of the Act respecting whether a preliminary site investigation and detailed site investigation will be ordered;

(c) a remediation plan prepared and submitted under sections 48, 51 and 53 of the Act;

(d) an approval in principle and a certificate of compliance issued under section 53 of the Act;

(e) a covenant required to be registered under section 53 (3) (e) of the Act;

(f) a determination that a site is an orphan site or a high risk orphan site made under section 58 (1) of the Act;

(g) a designation under section 14 of this regulation of a wide area site;

(h) an approval of the scope of a proposed wide area remediation plan;

(i) an opinion from an allocation panel under section 49 (2) of the Act;

(j) information related to the monitoring, verification or confirmation of compliance with a remediation plan;

(k) information about decisions being appealed;

(l) an agreement pertaining to responsibility for remediation of a contaminated site but only if all parties to the agreement jointly request that a notation about the agreement be entered on the site registry;

(m) a notification of substance migration or likely migration, described in section 57 (1.1) or 60.1 (2) of this regulation;

(n) a summary of site condition;

(o) information respecting the classification of a site, including its reclassification or de-classification, as the case may be.

(2) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 8.]

(3) Repealed. [B.C. Reg. 419/2003, s. 2.]

(4) The registrar may enter into the site registry historical information on discharges to land and such other historical information that the director may require.

[am. B.C. Regs. 419/2003, s. 2; 322/2004 and 324/2004, s. 8; 201/2007, s. 2.]

Part 4 — Fees

Fees

9  (1) Subject to this section, a person who undertakes an action described in Column I of Table 1 of Schedule 3 must pay the fee set out opposite the action in Column II.

(2) Subject to this section, a person who

(a) undertakes an activity requiring an action or activity,

(b) is ordered or required by a director to undertake an activity requiring an action or activity, or

(c) requests an action or activity

described in Column I of Table 2 of Schedule 3 must pay the fees set out opposite the action or activity in Column II.

(3) Repealed. [B.C. Reg. 201/2007, s. 3 (b).]

(4) The federal goods and services tax, if payable, must be added to the fees payable.

(5) Fees payable under this regulation are payable to the government except that

(a) fees established for computer-based site registry inquiries are payable to the electronic data distributor, and

(b) fees imposed by an approving officer or a municipality for assessing a site profile are payable to the approving officer or municipality.

(6) Fees imposed by an approving officer or municipality under section 40 (5) of the Act may not exceed the amount of the fees established under this regulation for providing a site profile to an approving officer or a municipality.

(7) A fee referred to in subsection (6) is payable at the time the person provides the site profile to the approving officer or municipality.

(8) The fees listed in Schedule 3 are exclusive of one another and of fees associated with any other action or activity under this regulation.

(9) Subject to subsection 19, a person who pays a fee set out in Column II of Table 2 of Schedule 3 must be provided with a credit toward any fee payable under subsection (15) (a) of this section in respect of the item for which the fee is paid, equal to 1 hour for each $200 of the fee set out opposite the item.

(10) If a director considers that an application or a report submitted in relation to an action or activity listed in Column I of Table 2 of Schedule 3 is incomplete or contains errors, the director must return the application or report to the person for completion or correction and the person may resubmit a completed or corrected report or plan for another review.

(11) The fee for a subsequent review of an application or report under subsection (10) is 50% of the fee paid.

(12) The fee for a review requested under section 10 (2) is equal to the sum of

(a) the amount of the fee payable by the government to the external contract reviewer under a contract referred to in section 10 (1), and

(b) 50% of the fee set out in Column II of Table 2 of Schedule 3, as applicable, opposite the type of review set out under item 2 (a) to (e) and (g) in Column I.

(13) If an external contract reviewer considers, and advises the ministry, that a report or plan the reviewer has been asked to review is incomplete or contains an error, the person who requested the assignment of the reviewer may resubmit a completed or corrected report or plan for another review by the external contract reviewer.

(14) The fee for a subsequent review under subsection (13) is equal to the sum of

(a) the amount of the fee payable by the government to the external contract reviewer for the subsequent review, and

(b) if a director considers it justified on the basis of additional time it takes a person to review the completed or corrected plan or report on behalf of the ministry, 50% of the fee paid under subsection (12) (b) on the first submission.

(15) In addition to any other fees under this section, a person who requests an action or activity under

(a) Table 2 of Schedule 3 must pay a fee of $165 per hour that a person is engaged in performing the action or activity on behalf of the ministry,

(b) Table 3 of Schedule 3 must pay a fee of $165 per hour that a person is engaged in performing the action or activity on behalf of the ministry after the first hour, and

(c) Table 3 of Schedule 3 must pay a fee equal to the amount of the reasonable traveling and out of pocket expenses necessarily incurred by a person in performing the action or activity on behalf of the ministry.

(16) If a director is satisfied, on application, that a risk assessment reviewed under item 2 (d) or (g) of Table 2 of Schedule 3 is a screening risk level assessment, the director may,

(a) in the case of a risk assessment under item 2 (d), reduce the fee by up to 20%, and

(b) in the case of a risk assessment under item 2 (g), reduce the fee by up to 50%.

(17) A person or organization is exempt from all or part of a fee under item 2 or 3 of Table 1 of Schedule 3, in the amount specified by a director, if

(a) the person or organization satisfies the director that paying the fee or the part would be an unmanageable financial burden on the person or organization required to pay it, or

(b) in the case of a government ministry or a person acting on behalf of a government ministry, the fee does not exceed $500 and the director is satisfied that granting the exemption is in the public interest.

(18) A director may

(a) invoice a person for a fee,

(b) agree in writing in a particular case to accept the payment of fees in installments, and

(c) require in a particular case that a person provide fees in advance of any services being provided.

(19) If a person withdraws a request referred to in subsection (2) (c), the person is not required to pay the fee referred to in that subsection for that action or activity, however the hourly fees described in subsection (15) (a) and (b) and the travelling and other expenses described in subsection (15) (c) continue to apply and are payable in respect of action or activity done before the person withdraws the request.

(20) In addition to any other fees under this section, a person who requests an amendment to any of the following must pay a fee of $165 per hour that a person is engaged in performing an action or activity on behalf of the ministry in relation to the amendment:

(a) a determination under section 44 of the Act [determination of contaminated sites];

(b) a determination undersection 50 of the Act [minor contributors];

(c) a voluntary remediation agreement under section 51 of the Act;

(d) an approval in principle under section 53 (1.1) of the Act;

(e) a certificate of compliance under section 53 (3) of the Act;

(f) a contaminated soil relocation agreement under section 55 of the Act;

(g) if the site is one to which Part 5 of the Act applies, a transfer agreement referred to in section 67 (1) (a) [advanced exploration sites] or 68 (1) (a) [producing or past producing mine sites] of that Part;

(h) if the site is one to which Part 5 of the Act applies, indemnification for the site under the Financial Administration Act .

[en. B.C. Reg. 419/2003, s. 3; am. B.C. Regs. 322/2004 and 324/2004, s. 9; 464/2004, s. 1 (a); 201/2007, s. 3; 343/2008, s. 4.]

Review of report or plan by external contract reviewer

10  (1) A director may enter into a contract with an approved professional to assist in the review of reports or plans, listed under items 2 (a) to (e) and (g) of Column I of Table 2 of Schedule 3, by making a report to the director containing the external contract reviewer's professional opinion in respect of

(a) the adequacy of the report or plan,

(b) the need for remediation of the site in respect of which the report or plan is submitted, and

(c) whether the report or plan complies with Provincial laws and ministry policy.

(2) A person may request a director to assign an external contract reviewer to assist with a review listed under item 2 (a) to (e) or (g) in Column I of Table 2 of Schedule 3.

[en. B.C. Reg. 419/2003, s. 3; am. B.C. Regs. 322/2004 and 324/2004, s. 10.]

Part 5 — Contaminated Site Definition and Determination

Definition of contaminated site

11  (1) Subject to section 12 and subsections (2), (3) and (4) of this section, the following substances, standards and conditions are prescribed for the purposes of the definition of "contaminated site" in section 39 of the Act:

(a) the land use of the site is agricultural, commercial, industrial, urban park, wildlands or residential and the concentration of any substance in the soil is greater than

(i) the applicable generic numerical soil standard, or

(ii) the lowest value of the applicable matrix numerical soil standards;

(a.1) the land use of the site is wildlands land use and

(i) the concentration of any substance in the soil at a depth of less than 3 metres is greater than the numerical standards for soil that would apply if the land use of the site were urban park land use, or

(ii) the concentration of any substance in the soil at a depth of 3 metres or more is greater than the numerical standards for soil that would apply if the land use of the site were commercial land use;

(b) the surface or groundwater located on or flowing from the site is used or has a reasonable probability of being used for aquatic life, irrigation, livestock or drinking water and the concentration of any substance in the surface water or groundwater is greater than the applicable generic numerical water standard;

(c) the concentration of any substance in sediment at the site is greater than the applicable generic numerical sediment criterion;

(c.1) the concentration of any substance in vapour at the site is greater than the applicable generic numerical vapour standard;

(c.2) despite paragraph (a), for land less than 15 metres from a natural gas or petroleum well head and the land use of the site is agricultural land use,

(i) the concentration of any substance in the soil at a depth of less than 2 metres is greater than the applicable agricultural land use standards for soil, or

(ii) the concentration of any substance in the soil at a depth of 2 metres or more is greater than the standards for soil that would apply if the land use of the site were commercial land use;

(c.3) despite paragraph (a.1), for Crown land less than 15 metres from a natural gas or petroleum well head and the land use of the site is wildlands land use,

(i) the concentration of any substance in the soil at a depth of less than 2 metres is greater than the standards for soil that would apply if the land use of the site were urban park land use, or

(ii) the concentration of any substance in the soil at a depth of 2 metres or more is greater than the standards for soil that would apply if the land use of the site were commercial land use;

(d) the concentration of any substance at the site, not specified in Schedule 4, 5, 6, 7, 9, 10 or 11, is greater than,

(i) if the substance is specified without a particular use, the concentration specified for that substance in a director's interim standard, and

(ii) if the substance is specified with a particular use, the concentration specified for that substance and use in a director's interim standard.

(2) Subsection (1) does not apply to a site in relation to a substance if the concentration of the substance in soil, surface water, groundwater, sediment or vapour at the site is not greater than the applicable site-specific numerical standard.

(3) Subsection (1) does not apply to a site in relation to a substance in the soil, surface water, groundwater, sediment or vapour if the concentration of the substance in the soil, surface water, groundwater, sediment or vapour is not greater than the local background concentration of that substance in the soil, surface water, groundwater, sediment or vapour respectively.

(4) Subsection (1) does not apply to a site in relation to a substance in the soil if

(a) the site has been used for the application of

(i) managed organic matter, as defined in the Organic Matter Recycling Regulation, B.C. Reg. 18/2002,

(ii) retail-grade organic matter, as defined in the Organic Matter Recycling Regulation, or

(iii) products derived from the materials described in subparagraphs (i) or (ii)

in a manner consistent with the Organic Matter Recycling Regulation or an authorization given under the Act, and

(b) the site has not been used for a commercial or industrial activity listed in Schedule 2.

[en. B.C. Regs. 322/2004 and 324/2004, s. 11; am. B.C. Reg. 343/2008, s. 5.]

Specification of applicable land, water, sediment and vapour uses and site-specific factors

12  (1) For the purpose of using the standards in this regulation,

(a) if a protocol provides for more than one land use at a particular site, the land uses that apply, at any given time, to the site or a part of the site are the land uses that apply in accordance with the protocol, and

(b) otherwise, the land use that applies, at any given time, to a particular site or a part of a site is the primary land use at the surface of the site.

(2) For the purpose of using the standards in this regulation, the surface water uses or groundwater uses which apply, at any given time, to a particular site or part of a site are based on

(a) the uses of the surface water or groundwater at the site or on neighbouring sites, and

(b) the potential for the groundwater or surface water to cause pollution.

(2.1) For the purpose of using the standards in this regulation, the sediment use that applies, at any given time, to a particular site or a part of a site is based on

(a) the use of sediment at the site or at neighbouring sites, and

(b) the potential for the sediment to cause pollution.

(2.2) For the purpose of using the standards in this regulation, the vapour use that applies, at any given time, to a particular site or a part of a site is based on

(a) the uses of the land at the surface of the site, and

(b) the potential of the vapour to cause pollution.

(2.3) A director may specify the applicable land use under subsection (2.2) from the following:

(a) agricultural land use;

(b) commercial land use;

(c) industrial and use;

(d) urban park land use;

(e) residential land use;

(f) wildlands land use.

(3) Subject to subsection (6), a director may specify the applicable land use or uses, as the case may be, under subsection (1) from the following:

(a) agricultural land use;

(b) commercial land use;

(c) industrial land use;

(d) urban park land use;

(e) residential land use;

(f) wildlands land use.

(4) A director may specify the applicable water uses under subsection (2) from the following:

(a) aquatic life water use;

(b) irrigation water use;

(c) livestock water use;

(d) drinking water use.

(4.1) A director may specify the applicable sediment use under subsection (2.1) from the following:

(a) typical sediment use;

(b) sensitive sediment use.

(5) In specifying the primary land use, water use or sediment use under subsections (3), (4) and (4.1), a director must take into account current and reasonable potential future land, water and sediment uses based on the following factors:

(a) current and proposed zoning for the site;

(b) land use and planning policies of the government or the municipality or municipalities in which the site and neighbouring sites are situated;

(c) current site activities;

(d) proposed site activities;

(e) current and proposed uses for surface water and groundwater on the site;

(f) current and proposed land use, and surface water and groundwater uses of neighbouring sites;

(g) current nearby uses of other surface water and groundwater;

(h) the potential for surface water and groundwater to cause pollution;

(h.1) current and proposed uses for sediment at neighbouring sites;

(h.2) potential for surface water, groundwater and sediment to cause pollution on neighbouring sites;

(i) other factors that a director considers appropriate in the circumstances.

(6) If the current or anticipated future use of a site is not encompassed within any of the land uses specified in subsection (3), the land use that applies to the site must be chosen from the land uses in subsection (3) based on the historical activities at the site.

(7) For the purpose of using matrix numerical soil standards and site-specific numerical standards, a director may specify the applicable site-specific factors for a site after consideration of the land and water use factors in subsection (5).

(8) For the purpose of using matrix numerical soil standards and site-specific numerical soil standards, the site-specific factors for

(a) human intake of contaminated soil, and

(b) toxicity to soil invertebrates and plants

are mandatory and must be applied at every site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 12; 343/2008, s. 6.]

Repealed

13  Repealed. [B.C. Reg. 343/2008, s. 7.]

Wide area site

14  A director may designate a site as a wide area site with respect to specified substances and specified sources if

(a) the site covers an extensive geographic area and comprises many individual properties, and

(b) many of the individual properties located within the bounds of the wide area site would, on an individual basis, likely be determined by the director to be contaminated with one or more of the specified substances in the designation.

[am. B.C. Regs. 322/2004 and 324/2004, s. 14; 239/2007, s. 3.]

Procedures for determination of contaminated site

15  (1) The numerical standards must be applied in determining whether a site is a contaminated site.

(2) A director who makes a preliminary determination under section 44 (2) (a) of the Act must provide written reasons for the preliminary determination with the notice required by section 44 (2) (b) of the Act.

(3) After making a preliminary determination under section 44 (2) (a) of the Act, the director must allow a period for comment under section 44 (2) (c) of the Act of not less than 30 days and not more than 60 days after delivery of the notice of preliminary determination.

(4) Within 15 days after making a final determination under section 44 (2) (d) or (3) of the Act, the director must send the notice required by section 44 (2) (e) accompanied by written reasons for the final determination.

(5) A director may require that an application for a determination under section 44 of the Act include a report and the recommendation of an approved professional in respect of whether the site is a contaminated site.

(6) If the director does not impose a requirement under subsection (5), an application for a determination under section 44 of the Act may include a report and the recommendation of an approved professional in respect of whether the site is a contaminated site and, if so, section 49.1 applies.

(7) If a director rejects the recommendation of an approved professional provided under subsection (5) or (6), the director, within 15 days of the rejection, must provide written reasons to

(a) the applicant, and

(b) the professional association, in the Province, of which the approved professional is a member.

[en. B.C. Regs. 322/2004 and 324/2004, s. 15; am. B.C. Reg. 201/2007, s. 4.]

Part 6 — Remediation Standards

Remediation options

16  The numerical standards, or the risk based standards prescribed in section 18 or 18.1, may be used in relation to the remediation of a contaminated site.

[en. B.C. Regs. 322/2004 and 324/2004, s. 16.]

Application of numerical standards for remediation

17  (1) Subject to subsection (2), a contaminated site has been remediated in accordance with the numerical standards if

(a) the site is used for agricultural, commercial, industrial, urban park or residential land use and the soil at the site does not contain any substance with a concentration greater than or equal to

(i) the applicable generic numerical soil standard, or

(ii) the lowest value of the applicable matrix numerical soil standards,

(a.1) the use of the site is wildlands land use and

(i) the soil at a depth of less than 3 metres does not contain any substance with a concentration greater than the numerical standards for soil that would apply if the land use of the site were urban park land use, and

(ii) the soil at a depth equal to or greater than 3 metres does not contain any substance with a concentration greater than the numerical standards for soil that would apply if the land use of the site were commercial land use,

(b) surface water or groundwater used for, or which has a reasonable probability of being used for, aquatic life, irrigation, livestock or drinking water use does not contain any substance with a concentration greater than the generic numerical water standard for that substance and use,

(b.1) the sediment at the site does not contain any substance with a concentration greater than the generic numerical sediment criterion for that substance for the applicable sediment use of the site,

(b.2) the vapour at the site does not contain any substance with a concentration greater than the generic numerical vapour standard for that substance for the applicable land use of the site,

(c) the soil, surface water, groundwater, sediment or vapour at the site does not contain any substance with a concentration greater than the concentration specified for that substance and use in a director's interim standard.

(d) despite paragraph (a), for land less than 15 metres from a natural gas or petroleum well head and the use of the site is agricultural land use,

(i) the soil at a depth of less than 2 metres does not contain any substance with a concentration greater than

(A) the generic numerical soil standard, or

(B) the lowest value of the applicable matrix numerical soil standard

that would apply if the land use of the site were agricultural land use, and

(ii) the soil at a depth of 2 metres or more does not contain any substance with a concentration greater than

(A) the generic numerical soil standard, or

(B) the lowest value of the applicable matrix numerical soil standard

that would apply if the land use of the site were commercial land use, and

(e) despite paragraph (a.1), for Crown land less than 15 metres from a natural gas or petroleum well head and the use of the site is wildlands land use,

(i) the soil at a depth of less than 2 metres does not contain any substance with a concentration greater than

(A) the generic numerical soil standard, or

(B) the lowest value of the applicable matrix numerical soil standard

that would apply if the land use of the site were urban park land use, and

(ii) the soil at a depth of 2 metres or more does not contain any substance with a concentration greater than

(A) the generic numerical soil standard, or

(B) the lowest value of the applicable matrix numerical soil standard

that would apply if the land use of the site were commercial land use.

(2) A contaminated site has been remediated in accordance with the numerical standards if

(a) the soil, surface water, ground water, vapour or sediment at the site does not contain any substance with a concentration greater than or equal to the applicable site-specific numerical standard for the soil, surface water, groundwater, vapour or sediment, respectively, or

(b) the soil, surface water, ground water, vapour or sediment at the site does not contain any substance with a concentration greater than the local background concentration of that substance in the soil, surface water, groundwater, vapour or sediment, respectively.

(3) Subject to subsection (4), and regardless of the use of the land at the surface of this site, the soil beyond a depth of 3 metres below the surface of land at a contaminated site has been remediated in accordance with numerical standards prescribed for the purposes of the definition of "contaminated site" if it or the vapour in it does not contain any substance with a concentration greater than or equal to the concentration specified for that substance for commercial land use in

(a) the generic numerical soil standard or the matrix numerical soil standard,

(a.1) the generic numerical vapour standard,

(b) a director's interim standard, or

(c) the site-specific numerical standard for that site.

(4) A director may require the application of the standards for soil or vapour referred to in subsection (1) or (2) to a depth greater than 3 metres for any specific site if the nature of the contaminants, the land use or proposed land use, site-specific factors or other factors indicate such action is necessary.

(4.1) Subsections (3) and (4) do not apply in relation to land to which subsection (1) (d) or (e) applies.

(5) If surface water or groundwater is not currently being used at the contaminated site for any of the purposes specified in subsection (1) (b), a director may specify a numerical standard for the surface water or groundwater as necessary to protect the present and future surface water or groundwater uses on neighbouring sites or to prevent pollution.

[am. B.C. Regs. 322/2004 and 324/2004, s. 17; 341/2008, s. 1.]

Application of risk-based standards for remediation

18  (1) The remediation standards have been met for a specific contaminated site if a responsible person satisfies a director that

(a) for any non-threshold carcinogenic substance, the calculated human lifetime cancer risk due to exposure to that substance at the site is less than or equal to a risk value recommended by the local medical health officer for the site, and

(b) for any substance for which a hazard index is calculated, the hazard index due to exposure of a human to that substance at the site is less than a maximum hazard index recommended by the local medical health officer for that site.

(2) A responsible person who asks a director for a decision that the standards in subsection (1) have been met for a contaminated site must

(a) provide information to support and justify the basis for the request, and

(b) participate in and pay for a public community based consultation process facilitated by the local medical health officer which

(i) is for the purpose of developing a recommendation on the acceptable level of human health risk for the site,

(ii) will consider remediation options in relation to levels of resulting human health risk at the site,

(iii) will be conducted in conjunction with any requirement under section 52 of the Act and section 55 (1) of this regulation, and

(iv) is carried out over a time period not exceeding 3 months from the date of the request under subsection (1) unless the person making the request, the local medical health officer and the director agree to an alternate time period.

(3) Despite subsections (1) and (2), a director must consider a contaminated site to have been satisfactorily remediated without review and recommendation by the local medical health officer if

(a) for each non-threshold carcinogenic substance, the calculated human lifetime cancer risk due to exposure to that substance at the site is less than or equal to one in 100 000, and

(b) for each substance for which a hazard index is calculated, the hazard index due to exposure of a human to that substance at the site is less than or equal to one.

(4) A director must not decide that the standards in subsection (1) have been met before receiving written recommendations with supporting rationale from the local medical health officer respecting the matters described in subsection (1) (a) and (b).

(5) If a person demonstrates to the satisfaction of a director that the local background concentration of any substance at a particular site results in the standards required by subsection (1) or (3) being exceeded, the remediation standards for that substance must be the calculated lifetime cancer risk and calculated hazard index which results from exposure of a human to the local background concentration of that substance at the site.

(6) A person who applies the risk-based standards of this section must also prepare an environmental risk assessment report which identifies

(a) the potential onsite and offsite environmental risks of any substances causing contamination before and after remediation, and

(b) procedures, including monitoring, designed to mitigate any significant potential risks identified in paragraph (a).

(7) A director may impose requirements on a responsible person to prevent or mitigate risks identified

(a) in the environmental risk assessment report required under subsection (6), or

(b) by the director using other available data.

[am. B.C. Regs. 17/2002, s. 7; 322/2004 and 324/2004, s. 18.]

Application of risk-based standards for remediation at wide area sites

18.1  (1) The remediation standards have been met with respect to a substance from a source specified under section 14 if a director is satisfied that

(a) the risk to human health due to exposure to that substance at the site is less than or equal to a maximum value recommended by the medical health officer for the wide area site,

(b) the maximum value recommended by the medical health officer under paragraph (a) takes a form other than that of a hazard index or cancer risk, and

(c) the recommendation under paragraph (a) has been reviewed and endorsed by the Provincial health officer.

(2) A responsible person who asks a director for a decision that the standards in subsection (1) have been met for a contaminated site must

(a) provide information to support and justify the basis for the request, and

(b) participate in and pay for a public community based consultation process, acceptable to and facilitated by the medical health officer, that

(i) is for the purpose of developing a recommendation on the acceptable level of human exposure and health risk for the site,

(ii) considers remediation options in relation to levels of human exposure and health risk at the site,

(iii) is conducted in conjunction with any requirement under section 52 of the Act and section 55 (1) of this regulation, and

(iv) is carried out over a time period not exceeding 6 months from the date of the request under subsection (1), unless the person making the request, the medical health officer and the director agree to an alternate time period.

(3) A director must not decide that the standards in subsection (1) have been met before receiving written recommendations with supporting rationale from the medical health officer respecting the matters described in subsection (1) (a) and a written review and endorsement of the recommendations from the Provincial health officer under subsection (1) (c).

(4) Despite subsections (1) and (2), the director must consider a wide area site to have been satisfactorily remediated with respect to each substance from a source specified in section 14 without review and recommendation from the medical health officer if

(a) for each non-threshold carcinogenic substance, the calculated human lifetime cancer risk due to exposure to that substance at the site is less than or equal to one in 100 000, and

(b) for each substance for which a hazard index is calculated, the hazard index due to exposure of a human to that substance at the site is less than or equal to one.

(5) A person who applies the risk-based standards of this section with respect to specified substances must also prepare an environmental risk assessment report that identifies

(a) the potential onsite and offsite environmental risks of each specified substance before and after the remediation, and

(b) procedures, including monitoring, designed to mitigate any significant potential risks identified in paragraph (a).

(5.1) If a person demonstrates to the satisfaction of a director that the local background concentration of any substance at a particular wide area site results in the standards required by subsection (1) or (4) being exceeded, the remediation standards for that substance must be the calculated lifetime cancer risk and calculated hazard index that result from exposure of a human to the local background concentration of that substance at the wide area site.

(6) A director may impose requirements on a responsible person to prevent or mitigate risks identified

(a) in the environmental risk assessment report required under subsection (5), or

(b) by the director using other available data.

[en. B.C. Reg. 17/2002, s. 8; am. B.C. Regs. 322/2004 and 324/2004, s. 19.]

Part 7 — Liability

Persons not responsible — transporters and arrangers

19  For the purposes of section 46 (1) (n) of the Act, a person described in section 45 (1) (c) or (d) or (2) (c) or (d) of the Act is designated not responsible for remediation of a contaminated site in relation to a substance if the person

(a) did not control the disposal, handling or treatment of the substance, or

(b) by contract, agreement or otherwise merely required

(i) adoption of standards of design, construction or operation of works at the site which were intended to prevent contamination, or

(ii) compliance with environmental laws, standards, policies or codes of practice of government which applied at the time of producing, transporting or arranging for transport of the substance.

[am. B.C. Regs. 322/2004 and 324/2004, s. 20.]

Persons not responsible — sureties

20  (1) Subject to subsection (2), a surety who issues a bid bond, performance bond or labour and materials payment bond for a contract with respect to construction activities at a site which

(a) is a contaminated site at the effective date of issuance of the bond, or

(b) became a contaminated site after the effective date of issuance of the bond

is designated for the purposes of section 46 (1) (n) of the Act not responsible for remediation of the contaminated site and is exempt from an order under section 83 (2) (f) of the Act in relation to the contaminated site, unless the surety exercised control over or imposed requirements on any person regarding the manner of treatment, disposal or handling of a substance and the control or requirements, in whole or in part, caused the site to become a contaminated site.

(2) A surety does not exercise control or impose requirements under subsection (1) if the surety acts under its rights or obligations with respect to the bond including, without limitation, any of the following:

(a) participating only in purely financial matters related to construction activities at the site;

(b) having the capacity or ability to influence any operation at the contaminated site in a way that would have the effect of causing or increasing contamination, but does not exercise that capacity or ability in such a way as to cause or increase contamination;

(c) imposing requirements on any person if the requirements do not have a reasonable probability of causing or increasing contamination of the site;

(d) appointing a person to inspect or investigate a contaminated site to determine future steps or actions that the surety might take;

(e) imposing requirements on any person to comply with environmental laws, standards, policies or codes of practice of government or industry, including requirements to perform monitoring tests, scientific studies or to remediate contaminated sites.

(3) Subject to subsections (4) and (5), the liability of the surety is limited to the cost of remediation and the cost of completion of the bonded contract in accordance with the terms and conditions of the bond.

(4) The liability of the surety under subsection (3) is limited to the penal sum of the bond.

(5) The limitation under subsections (3) and (4) does not apply to a surety who intentionally caused environmental damage or was grossly negligent or guilty of wilful misconduct with respect to

(a) the use of the environment, or

(b) the lives or safety of persons.

[am. B.C. Regs. 322/2004 and 324/2004, s. 21.]

Persons not responsible — insurers and insurance brokers

21  (1) Subject to subsection (2), an insurer or insurance broker who undertakes risk evaluation, physical inspection of hazards or loss control activities at a site which

(a) is a contaminated site at the date of such activities, or

(b) became a contaminated site after the date of such activities

is designated for the purposes of section 46 (1) (n) of the Act not responsible for remediation of the contaminated site and is exempt from an order under section 83 (2) (f) of the Act in relation to the contaminated site, unless the insurer or insurance broker exercised control over or imposed requirements on any person regarding the manner of treatment, disposal or handling of a substance and the control or requirements, in whole or in part, caused the site to become a contaminated site.

(2) An insurer or insurance broker does not exercise control or impose requirements under subsection (1) if the insurer or insurance broker acts pursuant to rights or obligations with respect to an insurance policy including, without limitation, any of the following:

(a) participating only in purely financial matters related to providing insurance at the site;

(b) having the capacity or ability to influence any operation at the contaminated site in a way that would have the effect of causing or increasing contamination, but does not exercise the capacity or ability in such a way as to cause or increase contamination;

(c) imposing requirements on any person if the requirements do not have a reasonable probability of causing or increasing contamination of the site;

(d) appointing a person to inspect or investigate a contaminated site to determine future steps or actions that the insurer or insurance broker may take;

(e) imposing requirements on any person to comply with environmental laws, standards, policies or codes of practice of government or industry, including requirements to perform monitoring tests, scientific studies or to remediate contaminated sites.

(3) Subject to subsection (4), if an insurer or insurance broker is responsible for remediation, the liability of the insurer is limited to the cost of remediation, provided that such liability does not exceed the sum of any proceeds of any insurance coverage that is provided for the subject site for the purpose of covering such environmental risks.

(4) The limitation under subsection (3) does not apply to an insurer or insurance broker who intentionally caused environmental damage or who was grossly negligent or guilty of wilful misconduct with respect to

(a) the use of the environment, or

(b) the lives or safety of persons.

(5) This section does not affect any rights or obligations under an insurance policy.

[am. B.C. Regs. 322/2004 and 324/2004, s. 22.]

Persons not responsible — certain owners

22  (1) Subject to subsection (2), for the purposes of section 46 (1) (n) of the Act, a person is designated not responsible for remediation of a contaminated site if, with respect to the contaminated site, the person is a current or previous owner of

(a) an easement,

(b) a right of way,

(c) a restrictive covenant,

(d) a covenant under section 219 of the Land Title Act ,

(e) a lien,

(f) a judgement,

(g) a reservation in a Crown grant, or

(h) an interest in real property which deals exclusively with subsurface rights including such a tenure under the Geothermal Resources Act , the Mineral Tenure Act or the Petroleum and Natural Gas Act .

(2) Subsection (1) does not apply unless the person can establish that there has been no use or exercise of any right of the interest specified in paragraphs (a) to (h) of that subsection in a manner that, in whole or in part, caused the site to become a contaminated site.

[am. B.C. Regs. 244/99, s. 9; 322/2004 and 324/2004, s. 23.]

Persons not responsible — producers arranging for transportation

23  For the purposes of section 46 (1) (n) of the Act, a person described in section 45 (1) (c) or (d) of the Act is designated not responsible for remediation of a contaminated site if

(a) the person transferred ownership of a substance and responsibility for managing the substance to a transporter who

(i) intended at the time of the transfer to transport the substance to a site where the owner or operator of the site was at that time legally entitled to accept the substance, and

(ii) spilled or otherwise discharged the substance after the transfer but before delivering the substance to the person described in subparagraph (i), and

(b) the person did not by contract, agreement or otherwise impose requirements on the transporter in a manner which caused, in whole or in part, the spill or discharge referred to in paragraph (a) (ii).

[am. B.C. Regs. 322/2004 and 324/2004, s. 24.]

Persons not responsible — construction on contaminated sites

24  For the purposes of section 46 (1) (n) of the Act, a person is designated not responsible for remediation of a contaminated site if the person provided only contracting or consulting services related to the construction of buildings and facilities at the contaminated site.

[en. B.C. Regs. 322/2004 and 324/2004, s. 25.]

Persons not responsible — secured creditors

25  (1) For the purposes of section 46 (1) (n) of the Act, a secured creditor described in section 45 (3) (a) of the Act is designated not responsible for remediation of a contaminated site if the secured creditor does any of the following:

(a) imposes requirements on any person to comply with environmental laws, standards, policies or codes of practice of government or industry, including requirements to perform monitoring tests, scientific studies or to remediate contaminated sites;

(b) participates in loan work out actions, including the giving of financial or other advice to a financially distressed borrower, restructuring or renegotiating the terms of a security interest, requiring additional payments or consideration, or exercising forbearance;

(c) takes steps, whether or not they are part of realization proceedings, to preserve, protect or enhance the value of the secured assets or to reduce or prevent future contamination or the migration of existing contaminants or otherwise conduct any independent remediation;

(d) subject to section 45 (3) (b) of the Act and subsection (2) of this section, undertakes realization proceedings.

(2) Subject to subsection (3), the liability of a secured creditor who becomes a registered owner in fee simple of real property at a contaminated site exists and endures under section 45 (3) (b) of the Act only while the secured creditor is the registered owner in fee simple of the real property.

(3) Subsection (2) does not remove the liability of a secured creditor for remediation of a contaminated site under Part 4 of the Act if the secured creditor who became the registered owner in fee simple of real property at the contaminated site at any time exercised control over or imposed requirements on any person regarding the manner of treatment, disposal or handling of a substance and the control or requirements, in whole or in part, caused the site to become a contaminated site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 26.]

Persons not responsible — receivers, receiver managers and bankruptcy trustees

26  (1) In this section:

"available funds" means any and all funds realized by a receiver less

(a) the costs of realization and sale of property,

(b) the claims of trade creditors of the receiver,

(c) the claims of the receiver for remuneration and indemnification,

(d) the authorized borrowings of the receiver inclusive of interest, and

(e) the proceeds of property disposed of by the receiver, but only to the extent that those proceeds are required by the receiver to discharge a mortgage, lien, charge or security interest in the property which was filed, perfected or registered before the earlier of

(i) the date when a remediation order or other order under the Act respecting the property was entered on the site registry, or

(ii) the date when the receiver receives a remediation order or other order under the Act respecting the property;

"dispose" includes to transfer by a vesting order issued by a court;

"receiver" means a current or previous receiver, receiver manager, liquidator or bankruptcy trustee who is an owner or operator under the Act.

(2) For the purposes of section 46 (1) (n) of the Act, a receiver is designated not responsible personally under Part 4 of the Act for remediation of a contaminated site and is exempt personally from an order under section 81 or 83 of the Act in relation to the contaminated site, including a site that was a contaminated site on the date that the receiver became an owner or operator of that site, unless it is established that

(a) the receiver at any time exercised control over or imposed requirements on any person regarding the manner of treatment, disposal or handling of a substance,

(b) the receiver was grossly negligent or guilty of wilful misconduct in the exercise of such control over or the imposition of such requirements on a person, and

(c) such control or requirements caused the site to become, in whole or in part, a contaminated site,

in which case, the receiver is designated as responsible personally for remediation of the contaminated site and is not exempt personally from an order under section 81 or 83 of the Act.

(3) For the purposes of section 45 (1) (e) of the Act, a receiver is designated responsible, in his or her role as receiver and to the extent of the receivership, for remediation of a contaminated site, and is subject to an order under section 81 or 83 of the Act in relation to the contaminated site in that role and to that extent.

(3.1) For the purposes of subsection (3), the "extent of the receivership" means

(a) the limit of the available funds, and

(b) the period commencing with the receiver's appointment and ending with a termination under subsection (5).

(4) If a receiver does not have sufficient available funds to comply with applicable remediation requirements under Part 4 of the Act or any other order made under the Act, the receiver must give notice to a director of the lack of available funds as soon as the receiver becomes aware of the fact.

(5) A receiver's obligation under subsection (3) terminates when any of the following occurs:

(a) the receiver gives notice to a director under subsection (4);

(b) the receiver pays all available funds to a director, the minister or the Minister of Finance, in trust, for remediation of the contaminated site;

(c) the receiver resigns the appointment;

(d) the receiver is removed or discharged by the court or otherwise ceases to be a receiver;

(e) subject to subsection (6), the receiver disposes of a contaminated site to a person who

(i) agrees, in writing, to accept responsibility for remediation, or

(ii) enters into a voluntary remediation agreement with a director;

(f) subject to subsection (6), the receiver disposes of a contaminated site to a person in circumstances in which, at the time of the disposition,

(i) there is no requirement on the receiver to provide a site profile or, if there is such a requirement, the receiver has complied with it,

(ii) there is no record of contamination at the site on the site registry, and

(iii) the receiver has no knowledge of any contamination at the site.

(6) If a receiver disposes of part of a contaminated site in accordance with subsection (5) (e) or (f), the receiver's obligation under subsection (3) is terminated only with respect to that part.

(7) On application by a receiver or a director, the court may order that the obligation of the receiver is terminated with or without conditions or make any order it considers just, but this subsection does not provide the court with the power to set aside provincial legislation.

(8) A receiver who applies to the court under subsection (7) must give notice to a director, and the director may make representations to the court respecting the application.

(9) A receiver who

(a) has provided a site profile under section 40 (7) of the Act,

(b) is subject to an obligation to provide a site profile under section 40 (8) of the Act, or

(c) is in possession of a site for which there is an entry on the site registry indicating that the site

(i) has been determined, in whole or in part, to be a contaminated site under section 44 of the Act, or

(ii) is otherwise expressly stated to be, in whole or in part, a contaminated site,

must give written notice to a director of

(d) any proposed distribution of available funds at least 15 days before the date of the proposed distribution, or

(e) any proposed abandonment of the site or part of the site by the receiver at least 15 days before the date of the proposed abandonment if the receiver

(i) resigns the appointment, or

(ii) applies to a court for a discharge.

(10) A receiver, within 30 days after receiving a remediation order or a pollution abatement order, may give written notice to a director that, during that 30 day period, the receiver is determining or assessing

(a) the ability and willingness of the receiver to administer the property at the contaminated site,

(b) the responsibilities which would be incurred by the receiver in administering the property, and

(c) whether the receiver should seek to terminate the appointment in accordance with subsection (5) or abandon the contaminated site,

and during that period, subject to subsections (11) to (13), the receiver is not required to comply with the remediation order or the pollution abatement order.

(11) A receiver may, upon giving notice in writing to a director, apply to the court for an extension of the 30 day period described in subsection (10), but this provision does not apply if the director agrees to the extended time proposed by the receiver.

(12) The court, on hearing an application under subsection (11), must not order an extension unless it determines that an extension is reasonably necessary to permit the receiver to ascertain the environmental condition of the site and the extent and cost of fulfilling the duties arising from the operation or control of the site and compliance with the director's order.

(13) If a director requires compliance with a remediation order or a pollution abatement order within the 30 day period to reduce the threat of a contaminated site, the director may, upon giving written notice to the receiver, seek a court order to reduce the 30 day period described in subsection (10), but this provision does not apply if the receiver agrees to the reduced time proposed by the director.

(14) Despite any other provision in this section, a director may agree to the continued involvement of a receiver in the remediation of a contaminated site even if there are insufficient available funds to satisfy the costs of remediation.

[am. B.C. Regs. 322/2004 and 324/2004, s. 27.]

Persons not responsible — trustees, executors, administrators and other fiduciaries

27  (1) In this section:

"available funds" means the net realizable value of the trust property but does not include

(a) the costs of realization and sale of trust property,

(b) the claims of the trustee for remuneration and indemnification,

(c) trust property paid, distributed or transferred to any party by the trustee before receiving a remediation order or other order under the Act, but only if, at the time the trustee paid, distributed or transferred the trust property,

(i) there was no requirement on the trustee to provide a site profile, and

(ii) the trustee had no actual knowledge of any contamination at the site, or

(d) the proceeds of trust property disposed of by the trustee, but only to the extent that those proceeds are required by the trustee to discharge a mortgage, lien, charge or security interest in the property which was filed, perfected or registered before the earlier of

(i) the date when a remediation order or other order under the Act respecting the property is entered on the site registry, or

(ii) the date when the trustee receives a remediation order or other order under the Act respecting the property;

"trustee" includes

(a) an executor or an administrator of the estate of a deceased person,

(b) an express trustee or a bare trustee,

(c) a committee or other person appointed by a court as a representative under any adult guardianship legislation,

(d) a guardian, or the property guardian of a child, and

(e) an attorney acting under an enduring power of attorney whose principal lacks the capacity to manage his or her own affairs,

but does not include a receiver as defined in section 26;

"trust property" means the property held by a trustee in a fiduciary capacity and includes

(a) in relation to a trustee who is a committee of the estate of a patient, the patient's property,

(b) in relation to a trustee who is an attorney acting under an enduring power of attorney whose principal lacks the capacity to manage his or her affairs, the principal's property, and

(c) in relation to a guardian of a child, the child's property.

(2) For the purposes of section 46 (1) (n) of the Act, a trustee is designated not responsible personally under Part 4 of the Act for remediation of a contaminated site and is exempt personally from an order under section 81 or 83 of the Act in relation to the contaminated site, including a site that was a contaminated site on the date that the trustee became an owner or operator of that site, unless it is established that

(a) the trustee at any time exercised control over or imposed requirements on any person regarding the manner of treatment, disposal or handling of a substance,

(b) the trustee was grossly negligent or guilty of wilful misconduct in the exercise of such control over or the imposition of such requirements on a person, and

(c) such control or requirements caused the site to become, in whole or in part, a contaminated site.

in which case, the trustee is designated responsible personally for remediation of the contaminated site and is not exempt personally from an order under section 81 or 83 of the Act.

(3) For the purposes of section 45 (1) (e) of the Act, a trustee is designated as responsible, in his or her role as a trustee and to the extent of the trust, for remediation of a contaminated site, and is subject to an order under section 81 or 83 of the Act in relation to the contaminated site in that role and to that extent.

(3.1) For the purposes of subsection (3), "extent of the trust" means

(a) the limit of the available funds, and

(b) the period commencing with the trustee's appointment and ending with a termination under subsection (5).

(4) As soon as a trustee is aware that the available funds are insufficient to comply with applicable remediation requirements under Part 4 of the Act or any other order made under the Act, the trustee must immediately give notice to a director of the trustee's inability to meet the order or remediation requirements out of the available funds.

(5) A trustee's obligation under subsection (3) terminates when any of the following occurs:

(a) the trustee gives notice to a director under subsection (4);

(b) the trustee pays or transfers the trust property to a director, the minister or the Minister of Finance, in trust, for remediation of the contaminated site;

(c) subject to subsection (6), the trustee disposes of a contaminated site to a person who

(i) agrees, in writing, to accept responsibility for remediation, or

(ii) enters into a voluntary remediation agreement with a director;

(d) subject to subsection (6), the trustee disposes of a contaminated site to a person in circumstances in which, at the time of disposition,

(i) there is no requirement on the trustee to provide a site profile or, if there is such a requirement, the trustee has complied with it,

(ii) there is no record of contamination of the site on the site registry, and

(iii) the trustee has no knowledge of any contamination at the site;

(e) subject to subsection (7), the trustee is removed or discharged by the court or otherwise ceases to be a trustee.

(6) When a trustee disposes of part of a contaminated site in accordance with subsection (5) (c) or (d), the trustee's obligation under subsection (3) is terminated only with respect to that part.

(7) On application by a trustee or a director, a court may order that the obligation of the trustee under Part 4 of the Act or section 81 or 83 of the Act is terminated, with or without conditions, or make any order it considers just, but this subsection does not provide the court with the power to set aside provincial legislation.

(8) A trustee who applies to a court under subsection (7) must give notice to a director, and the director may make representations to the court respecting the application.

(9) A trustee who administers trust property for which there is an entry on the site registry indicating that the trust property

(a) has been determined, in whole or in part, to be a contaminated site under section 44 of the Act, or

(b) is otherwise expressly stated to be, in whole or in part, a contaminated site

must give written notice to a director of any proposed disposition of the contaminated site, or part of the contaminated site, by the trustee under subsection (5) (c) and (d) at least 15 days before the date of the proposed disposition.

(10) A trustee may, within 30 days after receiving a remediation order, a pollution abatement order or a pollution prevention order under the Act, give written notice to a director that, during that 30 day period, the trustee is determining or assessing

(a) the ability of the trustee to comply with the order,

(b) the responsibilities which would be incurred by the trustee in administering the trust property, and

(c) whether the trustee should seek to terminate the appointment under subsection (5),

and, during that period and subject to subsections (11) to (13), the trustee is not required to comply with the remediation order, pollution abatement order or pollution prevention order.

(11) A trustee may, upon giving written notice to a director, apply to the court for an extension of the 30 day period described in subsection (10), but this provision does not apply if the director agrees to the extended time proposed by the trustee.

(12) The court, on hearing an application under subsection (11), must not order an extension unless it determines that an extension is reasonably necessary to permit the trustee to ascertain the environmental condition of the site and the extent and cost of fulfilling the duties arising from the operation or control of the site and compliance with the director's order.

(13) If a director requires compliance with a remediation order, a pollution abatement order or a pollution prevention order within the 30 day period to reduce the threat of a contaminated site, the director may, upon giving written notice to the trustee, seek a court order to reduce the 30 day period described in subsection (10), but this provision does not apply if the trustee agrees to the reduced time proposed by the director.

(14) Despite subsection (5) (b), a director may agree to the continued involvement of a trustee in the ongoing trust administration duties of the trust property.

[am. B.C. Regs. 322/2004 and 324/2004, s. 28; 365/2012.]

Persons not responsible — clarification of innocent acquisition exemption

28  When judging whether an owner or operator has, under section 46 (1) (d) (i) (C) of the Act, undertaken all appropriate inquiries into the previous ownership and uses of a site and undertaken other investigations consistent with good commercial or customary practice at the time of acquisition of the property, consideration must be given to all of the following:

(a) any personal knowledge or experience of the owner or operator respecting contamination at the time of the acquisition;

(b) the relationship of the actual purchase price to the value of the property if it was uncontaminated;

(c) commonly known or reasonably ascertainable information about the property at the time of the acquisition;

(d) any obvious presence of contamination or indicators of contamination or the feasibility of detecting such contamination by appropriate inspection at the time of the acquisition.

[am. B.C. Regs. 322/2004 and 324/2004, s. 29.]

Persons not responsible — modification of lessor liability under section 46 (1) (e) of the Act

29  Subject to section 30, an owner of real property at a contaminated site is exempt from section 46 (1) (e) of the Act if

(a) the owner voluntarily leased, rented or otherwise allowed use of the real property by another person,

(b) the owner knew or had a reasonable basis for knowing that the other person described in paragraph (a) planned or intended to use the real property to dispose of, handle or treat a substance in a manner that, in whole or in part, would cause the site to become a contaminated site, and

(c) the person described in paragraph (a) used the real property to dispose of, handle or treat a substance in a manner that, in whole or in part, caused the site to become a contaminated site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 30.]

Persons not responsible — lessors who provide surface access for subsurface use

30  A lessor who, under the Petroleum and Natural Gas Act , enters into a surface lease agreement with a lessee that allows the lessee access to subsurface resources is, for the purposes of section 46 (1) (n) of the Act, designated not responsible for remediation of contamination caused by the lessee if the agreement requires the lessee to covenant and agree to indemnify and save harmless the lessor from any liabilities, damages, costs, claims, suits or actions arising out of the lessee's operations on the lessor's lands, except liabilities, damages, costs, claims, suits or actions arising out of the gross negligence or wilful misconduct of the lessor, its agents, servants, employees or contractors.

[am. B.C. Regs. 322/2004 and 324/2004, s. 31.]

Persons responsible — municipalities

31  For the purposes of 45 (1) (e) of the Act, a government body that acquires an ownership interest in a contaminated site by a municipal boundary extension or a municipal amalgamation initiated by the municipality is designated responsible for remediation of the contaminated site.

[en. B.C. Regs. 322/2004 and 324/2004, s. 32.]

Persons not responsible — transporters of contaminated soil

32  (1) A transporter of contaminated soil who is otherwise in compliance with the Act and the regulations is, for the purposes of section 46 (1) (n) of the Act, designated not responsible for remediation of a site which becomes contaminated by disposal or deposit of contaminated soil if there has been any misrepresentation to the transporter by

(a) a person who arranged for the transportation of the contaminated soil respecting the quality or degree of contamination of the soil, or

(b) a person who agrees to receive the contaminated soil respecting the quality, degree of contamination or acceptability of the disposal location in accordance with any requirement in Part 8.

(2) Subsection (1) applies only if the transporter acted in good faith and without negligence.

[am. B.C. Regs. 322/2004 and 324/2004, s. 33.]

Persons not responsible — contamination which is subject to a wide area remediation plan

33  (1) Subject to subsection (2), a person who is a current or previous owner or operator of a contaminated site is, for the purposes of section 46 (1) (n) of the Act, designated not responsible for remediation of the site if the site is contaminated only by substances being managed in accordance with a wide area remediation plan.

(2) Subsection (1) does not apply to a person who caused the contamination which is the subject of a wide area remediation plan.

[am. B.C. Regs. 322/2004 and 324/2004, s. 33.]

Repealed

34  Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 34.]

Determining compensation under section 47 (5) of the Act

35  (1) For the purposes of determining compensation payable under section 47 (5) of the Act, a defendant named in a cost recovery action under that section may assert all legal and equitable defences, including any right to obtain relief under an agreement, other legislation or the common law.

(2) In an action between 2 or more responsible persons under section 47 (5) of the Act, the following factors must be considered when determining the reasonably incurred costs of remediation:

(a) the price paid for the property by the person seeking cost recovery;

(b) the relative due diligence of the responsible persons involved in the action;

(c) the amount of contaminating substances and the toxicity attributable to the persons involved in the action;

(d) the relative degree of involvement, by each of the persons in the action, in the generation, transportation, treatment, storage or disposal of the substances that caused the site to become contaminated;

(e) any remediation measures implemented and paid for by each of the persons in the action;

(f) other factors relevant to a fair and just allocation.

(3) For the purpose of section 47 of the Act, any compensation payable by a defendant in an action under section 47 (5) of the Act is a reasonably incurred cost of remediation for that responsible person and the defendant may seek contribution from any other responsible person in accordance with the procedures under section 4 of the Negligence Act .

(4) In an action under section 47 (5) of the Act against a director, officer, employee or agent of a person or government body, the plaintiff must prove that the director, officer, employee or agent authorized, permitted or acquiesced in the activity which gave rise to the cost of remediation.

(5) In an action under section 47 (5) of the Act, a corporation is not liable for the costs of remediation arising from the actions of a subsidiary corporation unless the plaintiff can prove that the corporation authorized, permitted or acquiesced in the activity of the subsidiary corporation which gave rise to the costs of remediation.

[am. B.C. Regs. 322/2004 and 324/2004, s. 35.]

Remediation orders — timing for consent and notice

36  (1) Subject to subsection (3), a director who receives

(a) a site profile under section 40 (7) of the Act, and

(b) a request under section 48 (10) of the Act for notice respecting whether a remediation order will be issued,

must provide the notice within 10 days after receiving the site profile.

(2) Subject to subsection (3), if a director is requested by a person to give consent under section 48 (8) of the Act, the director must consider the request and give written notice of the decision to the person within 10 days after receiving the site profile.

(3) If a director requires more than 10 days to obtain or consider information relevant to the request under subsection (1) or (2), the director must

(a) give notice to the person making the request under subsection (1) (b) or (2) that more time is required, and

(b) state, in the notice given under paragraph (a), how much more time is required.

(4) Despite subsection (3), a director must not take more than 30 days to review and respond to

(a) a person's request for consent under section 48 (8) of the Act, or

(b) a person's request for notice under section 48 (10) of the Act respecting whether a remediation order will be issued.

[am. B.C. Regs. 322/2004 and 324/2004, s. 36.]

Remediation orders — diminishing or reducing assets

37  A person is exempt from the duty not to diminish or reduce assets under section 48 (8) or (10) of the Act to the extent that the person does any of the following:

(a) converts or exchanges assets from one class or kind to another class or kind including, without limitation, allowing the sale and conversion of inventory to a receivable or the collection and conversion of a receivable into cash;

(b) uses assets to satisfy liabilities as they become due, including paying fair value for supplies, services or other benefits conferred on the person, or on a receiver as defined in section 26 or a trustee as defined in section 27, carrying out the management function with respect to the asset;

(c) makes or accepts payments on loans or advances, revolves an operating line of credit, makes demand on a term or operating loan, reduces the maximum available under an operating line of credit or refuses to advance further funds;

(d) processes natural resources, including crude oil, natural gas and timber;

(e) installs infrastructure to provide services;

(f) provides services to customers;

(g) is a receiver as defined in section 26 or trustee as defined in section 27 who complies with section 26 or 27 respectively;

(h) realizes on a mortgage, lien, charge or other security interest.

[am. B.C. Regs. 322/2004 and 324/2004, s. 37.]

Minor contributors

38  A responsible person applying for minor contributor status under section 50 of the Act must provide information to a director, to the extent the information is reasonably ascertainable, respecting all of the following:

(a) the condition of the contaminated site at the time the applicant

(i) became an owner or operator at the site, and

(ii) if applicable, ceased to be an owner or operator at the site;

(b) any activities and land uses carried out by the applicant while located at the site;

(c) the nature and quantity of contamination at the site attributable to the applicant;

(d) all measures taken by the applicant to prevent or remediate contamination;

(e) contamination on the site or released from the site which is attributable to

(i) the applicant, and

(ii) other persons at the site;

(f) all measures taken by the applicant to exercise due diligence with respect to any substance that, in whole or in part, caused the site to become a contaminated site, including any measures taken to prevent foreseeable acts of third parties which may have contributed to the contamination at the site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 38.]

Voluntary remediation agreements

39  (1) A responsible person requesting a voluntary remediation agreement in respect of a contaminated site, including a wide area site, must provide all of the following information to a director:

(a) a detailed site investigation;

(b) a remediation plan;

(c) a detailed description of the responsible person's past and present activities on the site, including the amount and characteristics of contamination at the site attributable to that person's activities;

(d) an estimate of the total cost of remediation;

(e) an estimate of the responsible person's share of the total cost of remediation and justification for the estimate;

(f) the name and address of any other person who the responsible person has reason to believe may, with respect to the subject contaminated site, be a responsible person;

(g) a statement describing the responsible person's ability and plans to conduct and finance the remediation.

(2) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 39 (c).]

(3) Before a director enters into a voluntary remediation agreement with a responsible person, the director must notify any persons identified as other potential responsible persons under subsection (1) (f) and allow those persons not less than 15 days to give notice if they wish to review or make representations to the director about the proposed voluntary remediation agreement.

[am. B.C. Regs. 322/2004 and 324/2004, s. 39.]

Part 8 — Contaminated Soil Relocation

Class of sites defined for Part 8

40  (1) In this Part:

"receiving site" means the site to which contaminated soil is or will be relocated under a contaminated soil relocation agreement;

"source site" means the site from which contaminated soil is or will be relocated under a contaminated soil relocation agreement.

(2) For the purposes of this Part, a source site is a contaminated site if

(a) the concentration of a substance in the soil at the source site is greater than the concentration specified for that substance and the use of the receiving site in, as applicable,

(i) Column II of Schedule 7, or

(ii) Column III of Schedule 10,

(b) the soil at the source site contains any substance not specified in Schedule 7 with a concentration greater than the concentration specified for that substance for residential land use in a director's interim standard,

(c) Repealed. [B.C. Reg. 184/2016, s. 1.]

(d) the receiving site is used or may reasonably be used for agricultural land use and the soil at the source site contains any substance with a concentration greater than the concentration specified for that substance in Column III of Schedule 7 or in a director's interim standard for agricultural land use, or

(e) the concentration of a substance in vapour at the source site is greater than the concentration specified in Schedule 11 for that substance and the land use of the receiving site.

(3) Despite subsection (2), the relocation of contaminated soil from a contaminated site is exempt from section 55 of the Act if section 10 of the Act applies to the transportation of the contaminated soil.

[en. B.C. Regs. 322/2004 and 324/2004, s. 40; am. B.C. Regs. 343/2008, s. 8; 184/2016, s. 1.]

Exemptions for soil relocation and disposal

41  (1) Disposal of the following classes of soil is exempt from section 6 (2) and (3) of the Act:

(a) soil in which the concentrations of all substances are less than the concentration specified for those substances in

(i) Column IV of Schedule 7, or

(ii) a director's interim standard;

(b) contaminated soil relocated in accordance with a contaminated soil relocation agreement under section 55 (2) of the Act.

(2) A regional district is not required to include soil in its waste management plan for the management of municipal solid waste.

(3) The relocation of contaminated soil is exempt from section 55 (1) of the Act and this Part in the following circumstances:

(a) relocation of contaminated soil on the site at which the contaminated soil originates;

(b) relocation of contaminated soil which is contaminated due only to the presence of the local background concentration of a substance, but only if the contaminated soil is relocated within the geographic area having soil with this local background level of contamination;

(c) relocation of contaminated soil within an area subject to a wide area remediation plan approved by a director, but this exemption applies only with respect to the contaminants which are the subject of the wide area remediation plan;

(d) relocation of contaminated soil originating from emergency cleanup of a spill, but only if notice of the location to which the soil has been relocated is provided to a director within 3 days of the soil relocation;

(e) Repealed. [B.C. Reg. 184/2016, s. 2.]

(f) relocation of contaminated soil to a destination outside of British Columbia;

(g) relocation of contaminated soil from a specific site not exceeding 5 cubic metres in volume;

(h) relocation of contaminated soil to federal property.

[am. B.C. Regs. 244/99, s. 10; 322/2004 and 324/2004, s. 41; 184/2016, s. 2.]

Soil relocation to a landfill without a contaminated soil relocation agreement

42  (1) If a site is authorized for landfill waste disposal in any of the ways referred to in section 55 (5) (a), (b) or (c) of the Act but the authorization does not expressly allow the deposit of contaminated soil, the deposit of contaminated soil in the landfill is exempt from section 55 (1) of the Act if

(a) the owner of the site authorized for landfill waste disposal has filed a written statement with a director indicating the intended future use of the site, and

(b) the written statement indicates that one of the following applies:

(i) the site will be used for an agricultural land use, and the concentration of any substance in the contaminated soil is not greater than or equal to

(A) the concentration for that substance specified in Column II of Schedule 4, or

(B) the lowest concentration for that substance specified in Column II of Schedule 5;

(ii) the site will be used for an urban park land use, and the concentration of any substance in the contaminated soil is not greater than or equal to

(A) the concentration for that substance specified in Column III of Schedule 4, or

(B) the lowest concentration for that substance specified in Column III of Schedule 5;

(iii) the site will be used for a commercial land use, and the concentration of any substance in the contaminated soil is not greater than or equal to

(A) the concentration for that substance specified in Column V of Schedule 4, or

(B) the lowest concentration of that substance specified in Column V of Schedule 5;

(iv) the site will be used for an industrial land use, and the concentration of any substance in the contaminated soil is not greater than or equal to

(A) the concentration for that substance specified in Column VI of Schedule 4, or

(B) the lowest concentration for that substance specified in Column VI of Schedule 5;

(v) Repealed. [B.C. Reg. 184/2016, s. 3.]

(2) Subsection (1) does not authorize the deposit of soil if the deposit would be contrary to an authorization given under the Act.

(3) Subsection (1) does not prevent an owner of a site for which an authorization has been given under the Act from refusing to accept any type of contaminated soil.

[am. B.C. Regs. 322/2004 and 324/2004, s. 42; 184/2016, s. 3.]

Application for a contaminated soil relocation agreement

43  (1) If a contaminated soil relocation agreement is required under section 55 of the Act, an application must be made using the form set out in Schedule 8.

(2) A director may require that an application described in subsection (1) for relocating soil from a contaminated site that is classified under a director's protocol as a low or moderate risk site include a report and the recommendation of an approved professional that the application be approved.

(3) If the director does not impose a requirement under subsection (2), the application may include a report and the recommendation of an approved professional in respect of whether the application should be approved.

(4) If a director rejects the recommendation of an approved professional provided under subsection (2) or (3), the director, within 15 days of the rejection, must provide written reasons to

(a) the applicant, and

(b) the professional association, in the Province, of which the approved professional is a member.

(5) Subject to section 40 (3), an applicant for a contaminated soil relocation agreement respecting the relocation of soil contaminated with a substance specified in Schedule 10 must complete an environmental risk assessment report for the deposit site that demonstrates to the satisfaction of the director that the deposit of the contaminated soil at the receiving site will not cause

(a) contamination of the receiving site, or

(b) risks to human health or the environment

greater than the standards prescribed in section 18 or 18.1, as applicable.

[am. B.C. Regs. 17/2002, s. 9; 322/2004 and 324/2004, s. 43.]

Conditions pertaining to a contaminated soil relocation agreement

44  Before soil relocation begins in accordance with a contaminated soil relocation agreement, the applicant under section 43 must

(a) ensure that a copy of the notice from a director as required by section 55 (9) of the Act has been received by

(i) the municipality from which the soil is removed, and

(ii) the municipality in which the receiving site is situated, or

(b) wait at least 4 business days from the time of receiving the approved contaminated soil relocation agreement before moving any contaminated soil.

[am. B.C. Regs. 17/2002, s. 10; 322/2004 and 324/2004, s. 44.]

Numerical standards for contaminated soil relocation agreements

45  (1) For the purpose of section 55 (3) (a) of the Act, the prescribed numerical standards are the standards set out in subsections (2) and (3).

(2) Subject to subsection (3), contaminated soil may be relocated to a receiving site which is used or will be used for agricultural, commercial, industrial, urban park or residential land use if the contaminated soil does not contain any substance with a concentration greater than or equal to

(a) the applicable generic numerical soil standard,

(b) the lowest value of the applicable matrix numerical soil standards, or

(c) a director's interim standard.

(3) A receiving site is considered to be acceptable if the contaminated soil does not contain any substance with a concentration exceeding

(a) the applicable site-specific numerical standard, or

(b) the local background concentration of that substance in the soil at the deposit site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 45.]

Risk-based standards for contaminated soil relocation agreements

46  (1) For the purposes of section 55 (3) (a) of the Act, the prescribed risk-based standards are the standards set out in sections 18 and 18.1 of this regulation.

(2) If risk assessment has been used to evaluate site conditions, a director may, as part of a contaminated soil relocation agreement, include terms and conditions for

(a) monitoring impacts of the substances in the contaminated soil to be deposited,

(b) inspecting and maintaining any works considered necessary to secure the contamination at the receiving site and to protect human health or the environment,

(c) site registry notations, and

(d) preparation and registration of a covenant under section 219 of the Land Title Act .

[am. B.C. Regs. 322/2004 and 324/2004, s. 46.]

Part 9 — Remediation Plan Approval and Completion

Approval in principle

47  (1) A responsible person may apply for an approval in principle of a proposed remediation plan under section 53 (1.1) of the Act by submitting a request in writing to a director and attaching or ensuring the director already has

(a) copies of any preliminary and detailed site investigation reports prepared for the site,

(b) copies of any other site investigation and assessment reports prepared for the site, and

(c) the proposed remediation plan for which the approval in principle is sought.

(1.1) A responsible person making an application described in subsection (1) or (4) respecting a site classified under a director's protocol as a low or moderate risk site must specify in writing whether the application shall be processed

(a) in the manner for low or moderate risk sites, or

(b) in the manner for medium, intermediate or high risk sites.

(1.2) A responsible person making an application described in subsection (1) or (4) respecting a site classified under a director's protocol as a medium, intermediate or high risk site, or not classified under a director's protocol, may specify in writing that the application be processed in the manner for low or moderate risk sites.

(1.3) A director may reject an application for which a written specification is made under subsection (1.1) (a) or (1.2) if the director is satisfied that, for the likely human health and environmental risks to be properly assessed, a site covered by the application must be processed in the manner for a medium, intermediate or high risk site before a decision can properly be made whether or not to issue an approval in principle under section 53 (1.1) of the Act.

(1.4) A director may require that an application for an approval in principle in relation to a contaminated site, including a wide area site, that is classified under a director's protocol as a low or moderate risk site include a report and the recommendation of an approved professional that the application be approved.

(1.41) If the director does not impose a requirement under subsection (1.4), the application may include a report and the recommendation of an approved professional in respect of whether the application should be approved and, if so, section 49.1 applies.

(1.5) If the director rejects the recommendation of an approved professional provided under subsection (1.4) or (1.41), the director, within 15 days of the rejection, must provide written reasons to

(a) the applicant, and

(b) the professional association, in the Province, of which the approved professional is a member.

(2) Before issuing an approval in principle under section 53 (1.1) of the Act, a director may request any additional information and reports the director considers necessary to assess whether the standards, criteria or conditions prescribed in section 17, 18 or 18.1 of this regulation are likely to be complied with when the proposed remediation plan has been implemented.

(3) When issuing an approval in principle under section 53 (1.1) of the Act, a director may specify conditions for any or all of the following:

(a) implementing some or all of the activities described in a proposed remediation plan;

(b) risk assessment and risk management measures which may be required for part or all of a site for any reason;

(c) preparation, registration, and criteria for final discharge of a covenant under section 219 of the Land Title Act as may be required under section 48;

(d) carrying out confirmatory sampling and analysis after treatment or removal of contamination;

(e) testing and monitoring to evaluate the quality and performance of any remediation measures;

(f) any financial security required by the director in accordance with section 48;

(g) any actions which the director could require in a permit under section 14 of the Act.

(4) A responsible person may apply under subsection (1) for approval in principle of a wide area remediation plan.

(5) A director may issue an approval in principle for a wide area site remediation plan if the remediation plan complies with all the following:

(a) the goal of the plan is to satisfy the applicable criteria, standards or conditions prescribed in this regulation;

(b) environmental risks are addressed in the plan to the satisfaction of the director;

(c) the plan provides for the monitoring and assessment of public health and environmental parameters the director considers appropriate for evaluating progress in satisfying the applicable criteria, standards or conditions in relation to the contaminants specified in the plan.

(6) An approval in principle for a remediation plan issued under this section is a permit within the meaning of the Act for any facility which

(a) is located on the site to which the remediation plan applies,

(b) is specifically identified in the remediation plan, and

(c) is used to manage any contamination which is located on the site for which the remediation plan applies.

(7) In relation to an application for an approval in principle described in subsection (6), the Public Notification Regulation does not apply with respect to the facility.

[am. B.C. Regs. 244/99, s. 11; 322/2004 and 324/2004, s. 47; 343/2008, s. 4; 184/2016, s. 4.]

Covenants and financial security — general principles

48  (1) A director may require that a covenant be registered under section 219 of the Land Title Act for the purpose of any or all of

(a) setting conditions regarding works, and their inspection and maintenance at a site, considered necessary to secure the contamination at the site and to protect human health or the environment,

(b) setting conditions for restricting disturbance of soils, or preventing a changed use of a site, which would invalidate a risk assessment and potentially increase exposure of human and environmental receptors to site contamination,

(c) specifying requirements to monitor for movement or impacts of contamination, and

(d) indemnifying the Crown or its agents or employees from losses, charges, actions or suits related to contamination remaining at the site,

if these purposes are unlikely to be satisfactorily met by the entry of notations in the site registry.

(2) A person may request that a director have a covenant registered under the authority of subsection (1) discharged if the person believes that the conditions which gave rise to the covenant no longer exist or have been complied with.

(3) A director must have a covenant registered under the authority of subsection (1) discharged when

(a) remediation has been carried out in accordance with the numerical standards for remediation set out in section 17, and

(b) the director issues a certificate of compliance for the remediation referred to in paragraph (a).

(4) A director may require financial security if

(a) a significant risk could arise from conditions at a contaminated site because

(i) the site is left in an unremediated or partially remediated state, or

(ii) the site is remediated but requires ongoing management and monitoring because contamination is left at the site, and

(b) a covenant under section 219 of the Land Title Act is, in the opinion of the director, unlikely to be an effective means to ensure that necessary remediation is carried out at the site.

(5) The financial security required by a director under subsection (4) may be for the purpose of any or all of the following:

(a) ensuring that a responsible person completes remediation or guarantees performance to the satisfaction of the director;

(b) providing funds to further treat, remove or otherwise manage contamination;

(c) complying with the applicable legislation and financial management and operating policies of British Columbia.

[am. B.C. Regs. 322/2004 and 324/2004, s. 48.]

Requests for certificates

49  (1) A person may apply for a certificate of compliance under section 53 (3) of the Act by submitting a request in writing to a director.

(2) In support of the application referred to in subsection (1), the person requesting the certificate of compliance must provide to the director the reports described in paragraphs (a) and (b) and ensure that the director has information on the items described in paragraphs (c) and (d):

(a) preliminary and detailed site investigation reports;

(b) a confirmation of remediation report which describes sampling and analyses carried out after remediation of the contamination including

(i) a description of sampling locations and methods used,

(ii) a schedule of sampling conducted, and

(iii) a summary and evaluation of results of field observations and of field and laboratory analyses of samples;

(c) compliance with all conditions set by a director under section 47 (3) if an approval in principle was issued prior to remediation;

(d) the quality and performance of remediation measures on completion of remediation, including compliance with the remediation standards, criteria or conditions prescribed in this regulation.

(3) A person making an application described in subsection (1) respecting a site classified under a director's protocol as a low or moderate risk site must specify in writing whether the application shall be processed

(a) in the manner for low or moderate risk sites, or

(b) in the manner for medium, intermediate or high risk sites.

(4) A person making an application described in subsection (1) respecting a site classified under a director's protocol as a medium, intermediate or high risk site, or not classified under a director's protocol, may specify in writing that the application be processed in the manner for low or moderate risk sites.

(5) A director may reject an application for which a written specification is made under subsection (3) (a) or (4) if the director is satisfied that, for the likely human health and environmental risks to be properly assessed, a site covered by the application must be processed in the manner for a medium, intermediate or high risk site before a decision can properly be made whether or not to issue a certificate under section 53 (3) of the Act.

(6) A director may require that an application described in subsection (1) for a certificate of compliance in relation to a contaminated site that is classified under a director's protocol as a low or moderate risk site include a report and the recommendation of an approved professional that the application be approved.

(7) If the director does not impose a requirement under subsection (6), the application may include a report and the recommendation of an approved professional in respect of whether the application should be approved and, if so, section 49.1 applies.

(8) If a director rejects the recommendation of an approved professional provided under subsection (6) or (7), the director, within 15 days of the rejection, must provide written reasons to

(a) the applicant, and

(b) the professional association, in the Province, of which the approved professional is a member.

[am. B.C. Regs. 244/99, s. 12; 17/2002, s. 11; 322/2004 and 324/2004, s. 49.]

Director may consider recommendations of approved professionals

49.1  For the purpose of determining the manner and extent of the review that must be undertaken of the work on which an application referred to in section 15 (6), 43 (3), 47 (1.41) or 49 (7), a director may consider whether the application includes the recommendation of an approved professional in respect of the decision requested in the application.

[en. B.C. Regs. 322/2004 and 324/2004, s. 50.]

Financial security as a condition of a certificate

50  (1) If financial security is a condition of an approval in principle for a remediation plan for a particular site, all terms of the security requirement must be met before a director may issue a certificate of compliance for that site.

(2) If a director requires financial security in accordance with section 53 (3) (d) of the Act and section 48 (4) of this regulation, before the director issues a certificate of compliance, a responsible person must

(a) provide, to the director, satisfactory evidence of the availability of the required security, and

(b) provide any required contractual agreement relating to the terms and conditions of the security, signed by the responsible person.

[am. B.C. Regs. 322/2004 and 324/2004, s. 51.]

Approvals in principle and certificates for part of a site

51  If a responsible person applies for and a director issues an approval in principle or a certificate of compliance for a part of a contaminated site as authorized by section 53 (6) of the Act, the director must

(a) provide to the registrar information respecting the part of the site to which the approval in principle or certificate of compliance applies, and

(b) in accordance with section 48 of this regulation, consider whether a covenant under section 219 of the Land Title Act or financial security is required relative to one or more parts of the site not remediated.

[en. B.C. Regs. 322/2004 and 324/2004, s. 52.]

Duties of director respecting approvals in principle and certificates of compliance

52  (1) A director need not consider an application for an approval in principle or certificate of compliance until all required information has been provided to the director for review.

(2) A director must send a copy of an approval in principle or certificate of compliance issued by the director in respect of a site to the municipality in which the subject contaminated site is located.

[en. B.C. Regs. 322/2004 and 324/2004, s. 53.]

Part 10

Repealed

53  Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 54.]

Part 11 — Allocation Panel

Allocation panel procedures

54  (1) If a director establishes an allocation panel to provide an opinion under section 49 (2) of the Act, the panel

(a) must consider written and oral information submitted to it by the person who requested that a panel be established, and

(b) may consider other written and oral information submitted to it by any other person.

(2) Subsection (1) applies only if the information pertains to one or more of the factors described in section 49 (3) of the Act.

(3) An allocation panel established under section 49 (2) of the Act must give advance notice of its planned deliberations to any person who the panel believes, on reasonable grounds, may be a responsible person.

(4) An allocation panel established under section 49 (2) of the Act may determine its own procedures to be used in rendering an opinion, but the procedures must not conflict with a director's protocol.

(5) A person who wishes to withdraw a request to obtain an opinion from an allocation panel must notify the director in writing.

(6) The director who receives the notice referred to in subsection (5) may request that the allocation panel render an opinion on the basis of any information submitted to it before the withdrawal of the request.

(7) A person who withdraws a request to obtain an opinion from an allocation panel is liable for the panel fees and costs incurred by the panel before the time of receipt by the director of the notice referred to in subsection (5).

(8) An allocation panel must, when rendering an opinion, state the information relied on to render the opinion, including the extent of information and facts available to it and any significant deficiencies in the information provided to it.

[am. B.C. Regs. 322/2004 and 324/2004, s. 55.]

Part 12 — Public Consultation and Review

Director's powers

55  (1) When ordering public consultation or a review under section 52 (1) of the Act, a director may require a person who proposes to carry out remediation to do any or all of the following:

(a) post a notice of the proposed remediation, in a manner acceptable to the director, in a location visible to the public on the site or property which is the subject of the proposed remediation;

(b) publish, as specified by the director, in 2 or more editions of one or more newspapers with circulation local to the subject site, a notice of availability of information respecting

(i) site investigations,

(ii) evaluation of remediation alternatives,

(iii) remediation plans,

(iv) site registry identification numbers, and

(v) any other documentation as may be specified by the director;

(c) serve, on any person who, in the opinion of the director, may be adversely affected by the proposed remediation, a notice of availability of information respecting

(i) site investigations,

(ii) evaluation of remediation alternatives,

(iii) remediation plans, and

(iv) any other documentation that may be specified by the director;

(d) undertake other notification requirements specified by the director;

(e) hold public information meetings and use other public consultation methods, including providing public access to reports and studies at local public libraries, that the director specifies.

(2) A director may, when considering the need for public consultation or review of remediation of a contaminated site under section 52 (2) of the Act, require a person who proposes to remediate the contaminated site to submit a report to the director which describes past and proposed public consultations regarding the contaminated site under consideration.

(3) After issuance of an approval in principle or a certificate of compliance, a director must not order public consultation with respect to the remediation which is the subject of the approval in principle or certificate of compliance, but this does not prevent the director from ordering the person to provide information to the public about the remediation.

[am. B.C. Regs. 322/2004 and 324/2004, s. 56.]

Part 13 — Independent Remediation Procedures

Repealed

56  Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 57.]

Notifications for independent remediation

57  (1) A responsible person who carries out independent remediation of a site pursuant to section 54 (1) of the Act must, if the responsible person knows that one or more substances has migrated or is likely to have migrated to a neighbouring site and is or is likely causing contamination of the neighbouring site, provide the notification described in subsection (1.1).

(1.1) The responsible person must provide written notification to the person or persons who own the neighbouring site and a copy of the notification to a director, within 15 days after the responsible person becomes aware of the migration or likely migration of each substance to the neighbouring site, giving

(a) the name and address of the person or persons who own the site or sites to be remediated,

(b) the name, address and telephone number of the person to contact regarding the remediation activities to be undertaken at the site, and

(c) a general description of the nature of the migration or likely migration of each substance.

(1.2) A person who has a duty to provide notification to a director of commencement of independent remediation under section 54 (2) (a) of the Act must provide written notice to a director within 3 days after the commencement of any remediation activity involving handling, management or treatment of contamination, other than activity which has the purpose of obtaining results for investigation purposes, giving

(a) the legal description, including parcel identifier numbers and latitudinal and longitudinal references, and civic address of the parcel or parcels of land at the site to be remediated,

(b) the name and address of the person or persons who own the parcel or parcels of land at the site to be remediated,

(c) the name, address and telephone number of the person to contact regarding the remediation activities to be undertaken at the site, and

(d) a general description of the nature of the contaminated site and the remediation being conducted.

(2) In the case of independent remediation arising from emergency response to a spill of a polluting substance, a person is exempt from the requirements of subsection (1.2) if the spill has been reported in accordance with the requirements of section 79 of the Act and the Spill Reporting Regulation.

[am. B.C. Regs. 17/2002, s. 13; 322/2004 and 324/2004, s. 58; 201/2007, s. 5.]

Part 14 — Site Investigations

Preliminary site investigations

58  (1) Subject to subsections (3) and (4) and subject to the terms and conditions of a remediation order, an order to investigate under section 41 of the Act or a pollution abatement order, a preliminary site investigation consists of the following 2 stages:

(a) a first stage which includes

(i) a review of site historical use and records, including a search of the site registry, to determine current and past activities or uses, accidents and spills, and practices and management relating to potential contamination at the site and neighbouring sites,

(ii) one or more site reconnaissance visits with visual inspection of buildings, property, equipment, land, surface water and biota for indicators or presence of contamination,

(iii) interviews with current or former owners, occupants, neighbours, directors, employees and government officials who can, with reasonable attempts, be contacted respecting information on activities which may have caused contamination,

(iv) any information as to which substances on the site may cause contamination, and

(v) activities described in a director's protocol,

but does not include sampling of relevant environmental media or investigation of subsurface conditions;

(b) a second stage which allows determination of the general location and degree of any contamination and which includes

(i) sampling of relevant environmental media,

(ii) laboratory or field instrumental analysis of sampled and selected environmental media for substances which may cause or threaten to cause contamination,

(iii) other intrusive or nonintrusive methods of investigating subsurface conditions,

(iv) assessment of substance concentrations relative to the criteria, standards and conditions prescribed in this regulation, and

(v) activities described in a director's protocol.

(2) A person who carries out a preliminary site investigation may proceed sequentially through the 2 stages described in subsection (1) (a) and (b) or may proceed in a manner which combines the 2 stages.

(3) A person who has been ordered to undertake a preliminary site investigation and who has proceeded using a staged approach in accordance with subsection (1) may

(a) present to a director a report of the first stage of a preliminary site investigation, and

(b) seek consent of the director that the second stage of the preliminary site investigation is not required.

(4) A person who has been ordered to undertake a preliminary site investigation is not required to comply with the terms of the order if the person obtains the consent of a director to prepare a detailed site investigation which addresses the subject matter of the ordered preliminary site investigation.

(5) A report of a preliminary site investigation prepared under section 41 of the Act must do all of the following:

(a) indicate whether the investigation proceeded in stages as described in subsection (1) and, if so, the objectives, methods and procedures which were used in each stage;

(b) describe the relationship of the 2 stages and, in particular, explain how the methods of investigation and findings of the first stage were used to design and carry out the second stage;

(c) provide a compilation and presentation of all field observations, field measurement and analytical data and laboratory analytical data;

(d) provide interpretation and evaluation of the data in a manner which clearly shows

(i) the contamination in soil, groundwater, sediments and surface water in relation to the criteria, standards and conditions prescribed in this regulation, and

(ii) the general location and degree of contamination, including migration which may have occurred to adjoining properties.

[am. B.C. Regs. 244/99, s. 15; 322/2004 and 324/2004, s. 59; 184/2016, s. 5.]

Detailed site investigations

59  (1) A person who is ordered to undertake a detailed site investigation under section 41 (1) of the Act must do one of the following:

(a) carry out a preliminary site investigation before the detailed site investigation;

(b) conduct a detailed site investigation in a manner which ensures that the information referred to in section 58 (1) is obtained.

(2) A detailed site investigation must provide information necessary for conducting a risk assessment, if applicable, and for developing a remediation plan, and must, without limitation, include procedures to

(a) identify which substances may cause or threaten to cause adverse effects and provide any applicable information on their form,

(b) identify the specific areas, depths and degree of contamination on the site including areas and extent of migration if applicable, and

(c) evaluate contamination relative to the standards in this regulation.

(3) A report of a detailed site investigation prepared under section 41 (1) of the Act must do all of the following:

(a) describe the relationship of the detailed site investigation and any prior preliminary site investigation and, in particular, explain how the methods of investigation and findings of the preliminary site investigation were used to design and carry out the detailed site investigation;

(b) provide a compilation and presentation of all field observations, field measurement and analytical data and laboratory analytical data;

(c) provide an interpretation and evaluation of the data in a manner which clearly shows

(i) the contamination in soil, groundwater, sediments or surface water in relation to the criteria, standards and conditions prescribed in this regulation, and

(ii) specific areas, depths and degree of contamination, including migration which may have occurred to adjoining properties.

[am. B.C. Regs. 244/99, s. 16; 322/2004 and 324/2004, s. 60; 184/2016, s. 6.]

Summary of site investigations and remediation plans

60  Any preliminary site investigation report, detailed site investigation report or remediation plan submitted to a director for approval must include a summary of the report or plan for the purpose of entry on the site registry in a format which may be specified in a director's protocol.

[am. B.C. Regs. 322/2004 and 324/2004, s. 61.]

Notification of neighbouring site owners after site investigations

60.1  (1) A responsible person who carries out a site investigation that discloses that one or more substances has migrated or is likely to have migrated to a neighbouring site and is or is likely causing contamination of the neighbouring site must provide written notification described in subsection (2).

(2) The responsible person for the investigated site must provide written notification to the person or persons who own the neighbouring site and a copy of the notification to the director, within 15 days after the responsible person becomes aware of the migration or likely migration of each substance to the neighbouring site, giving

(a) the name and address of the person or persons who own the investigated site,

(b) the name, address and telephone number of the person to contact regarding the investigation, and

(c) a general description of the nature of the migration or likely migration of each substance.

[en. B.C. Reg. 17/2002, s. 14; am. B.C. Regs. 322/2004 and 324/2004, s. 62.]

Part 15 — Orphan Sites

Criteria for determining orphan sites

61  A director may determine that a contaminated site is an orphan site if the contaminated site is a site for which

(a) a responsible person cannot be found or is not willing or financially able to carry out remediation in a time frame specified by a director, or

(b) a government body has become the owner subsequent to the failure of the former owner or other responsible person to comply with a requirement to carry out remediation at the site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 63.]

High risk orphan sites

62  For the purposes of section 58 (1) (b) of the Act, the determination that an orphan site is a high risk orphan site must be made in accordance with a classification system in a director's protocol.

[en. B.C. Regs. 322/2004 and 324/2004, s. 64.]

Part 16 — Professional Statements

Professional statements

63  A director need not consider an application for

(a) an approval in principle,

(b) a certificate of compliance, or

(c) Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 65.]

(d) an approval of a preliminary or detailed site investigation

until the applicant or the applicant's agent provides a written signed statement that

(e) any documentation in support of an application referred to in paragraphs (a) to (d) has been prepared in accordance with all requirements in the Act and the regulations, and

(f) certifies that the person signing the statement has demonstrable experience in remediation of the type of contamination at the site for which the statement applies and is familiar with the remediation carried out on the site.

[am. B.C. Regs. 322/2004 and 324/2004, s. 65.]

Part 17

Repealed

64—66  Repealed. [B.C. Regs. 322/2004 and 324/2004, s. 67.]

Part 18 — Director's Protocols

Director's protocols

67  For the purposes of protocols established under section 64 (1) of the Act, a director may establish protocols in respect of the following matters:

(a) establishing the form of a summary of site condition;

(b) establishing procedures for defining and determining the boundaries of a site;

(c) establishing procedures for determining

(i) whether multiple land uses apply at a site, and

(ii) if multiple lands uses apply at a site, which land uses apply.

[en. B.C. Reg. 239/2007, s. 4; am. B.C. Reg. 343/2008, s. 9.]

Contents | Parts 1 to 18 | Schedule 1 | Schedule 1.1 | Schedule 2 | Schedule 3 | Schedule 4 | Schedule 5 | Schedule 6 | Schedule 7 | Schedule 8 | Schedule 9 | Schedule 10 | Schedule 11