Dealing with contaminant migration
Environmental investigations and independent remediation are undertaken for a variety of reasons. They may, for instance, be voluntarily initiated as part of due diligence practices or be required by ministry processes. If during any stage of investigation or independent remediation, it is determined that one or more substances have migrated or there is reason to believe substances have migrated to a neighbouring parcel and are causing (or are likely causing) contamination of that parcel, certain requirements are triggered.
This page describes what needs to be done when contaminant migration has occurred or likely has occurred; it also focuses on the communication requirements for persons responsible for parcels that are the source of actual or likely migration of contaminants (source parcels). It contains important guidance for owners of parcels that have or likely have been affected by the migration of contaminants onto their parcels (affected parcels).
Discovering contaminant migration
In keeping with Sections 57 and 60.1 of the Contaminated Sites Regulation (CSR), if it is determined that contaminant migration has occurred, or likely has occurred, the affected parcel owner(s) and ministry must be notified within 15 days by the responsible person when they become aware of the situation. These notices are called Notifications of Likely or Actual Migration (NOMs).
The responsible person is required to use the Notification of offsite migration form and follow the instructions provided. The requirement to use this form is established in Protocol 17, Site Remediation Forms (PDF, 1.7MB).
Who is responsible for sending the notification?
The responsible person for the source parcel might be a parcel owner, operator of a business, leaseholder, spiller, or anyone else responsible for a release of a substance that results in the contamination or likely contamination of a neighbouring parcel. The responsible person for the source parcel must provide the notification.
An owner of a neighbouring parcel that is likely or actually contaminated by the migration of substances must be provided notification. A copy must also be sent to the ministry. The Environmental Management Act (EMA) defines an owner as a person who possesses, has the right of control, or occupies or controls the use of real property. Owners could include lessees, tenants and owners of neighbouring roadways, easements and utility corridors. They could include municipalities and the provincial government.
Once all appropriate parties are notified there is no requirement to submit further NOMs each time new testing occurs. However, if a new parcel is later found to be affected (or likely affected) then a NOM must be provided to that parcel’s owner.
If new substances, not previously reported, are or likely are migrating to a neighbouring parcel, then an updated NOM that includes those new substances must be sent to the affected property owner.
Under Protocol 12, Site Risk Classification, Reclassification and Reporting (PDF), a Site Risk Classification Report (and when required, Exposure Pathway Questionnaires) must be sent to the ministry with a NOM.
Duty to provide site disclosure statements
A prospective purchaser must be provided with a site disclosure statement for lands contaminated by the migration of substances. Visit our Site Identification webpage for more information.
The registrar records notations in the Site Registry for every NOM submitted to the ministry. They are listed under the record for the source parcel and indicate that neighbouring parcels for which these notifications have been sent are potentially contaminated. Also, they may be listed under a Site Registry record for an affected parcel.
Investigating and remediating contaminant migration
A responsible person for a source parcel who wants to remediate or is remediating an affected parcel should contact the affected parcel owner to share remediation plans and schedules and discuss the remediation strategy. This applies both to cleanups under independent remediation and those where the ministry will be involved and will issue an Approval in Principle for the remediation plan or a Certificate of Compliance. Use the Checklist for Source Parcel Responsible Persons and Affected Parcel Owners (PDF) for a summary of the communication expectations .
The ministry expects that the responsible person and affected parties exchange information and hold discussions so that a mutually satisfactory remediation plan can be developed and implemented.
Often a source parcel owner needs access to affected parcels to enable investigation of potential contamination. The source parcel responsible person is expected to request owners of potentially affected parcels to provide access for appropriate site investigations. If access is not allowed, the source site owner needs to carry out more intensive characterization of potentially contaminated media at the perimeter of the affected parcel, or at the boundaries of the source site at points where contaminants are likely migrating offsite. If the site is classified as high risk, the ministry may decide to exercise its authority to order access to an affected site to assess the situation.
Those affected parcel owners who decide not to allow the source parcel owner access to investigate or remediate likely or actual contamination on an affected parcel would often not be eligible for a Certificate of Compliance from the ministry (indicating that the affected parcel meets the environmental quality standards of the CSR). This could impact future sale of the affected parcel or obtaining financing for property redevelopment.
Applying for an Approval in Principle or a Certificate of Compliance for affected parcels
A source parcel owner that is applying for an Approval in Principle or a Certificate of Compliance for a parcel affected by contaminant migration is expected to provide specific information to the affected parcel owner with a request for comments and concerns about work done and proposed at the affected parcel.
Guidance on preparing and issuing Certificates of Compliance and Approvals in Principle can be found on our preparing applications webpage.
The source parcel owner is expected to provide to the affected parcel owner in writing by registered letter, the information shown in the Communication Expectations page. If a written response is not received from the affected parcel owner within 30 days, the ministry expects the source parcel responsible person to contact the affected parcel owner again, this time by telephone, e-mail or in person requesting a response to the original communication. After making initial contact, the source parcel responsible person should request a response to the registered letter within an additional 30 days from the time of the telephone, e-mail or personal contact.
When the ministry is satisfied that the communication requirements have been met, the ministry would typically decide on issuing an Approval in Principle or a Certificate of Compliance based on the specifics of the situation and comments received from a range of persons representing those who could be affected by the ministry’s decision. Such persons could include, for example, utility companies, operators at the affected site and mortgage holders.
When source parcel applicants do not satisfy one or more of the communication requirements, the ministry would typically contact the applicant indicating that the application would be reconsidered when information addressing the deficiencies is provided.
Depending on the situation, the ministry may decide to provide a copy of the draft Approval in Principle or Certificate of Compliance to some or all of the persons who could be affected by the ministry’s decision. To assist in making such a decision, the ministry advises applicants for Approvals in Principle or Certificates of Compliance to ensure that any risk assessment and/or remediation plan developed for the affected parcel meets the requirements of EMA. Also, if the affected parcel owner objects to the issuance of, or details in, the proposed Approval in Principle or Certificate of Compliance, the reasons for such objections must be clearly documented and provided to the ministry.
Advice for affected parcel owners
Under Section 46 (1) (j) of EMA, an affected parcel owner is not responsible for remediation of contamination at their parcel if that contamination was caused solely by the migration of substances from another owner’s parcel. In addition, under Section 33 (1) of the CSR, a person is not responsible for remediation of a parcel contaminated only by substances being managed in accordance with an environmental management area remediation plan, as long as those substances did not originate from the affected parcel.
Since the contaminated site provisions under EMA and the CSR are complex, the ministry recommends that affected parcel owners obtain advice from experts familiar with B.C.’s contaminated sites requirements. Affected parcel owners are advised to carefully consider retaining the services of a qualified environmental consultant as well as a lawyer with experience with provincial contaminated sites laws. Note that the ministry does not provide legal advice.
If the source parcel owner does not take the initiative, those responsible for affected parcels should contact the source parcel owner to request site investigation reports and information on their intentions for remediating the source and affected parcels.