Contamination migration
Last updated on February 15, 2023Environmental investigations and independent remediation are undertaken for various reasons. They may be voluntarily initiated as part of due diligence practices or required by ministry processes.
If during any stage of investigation or independent remediation, it's determined that one or more substances have migrated, or there's reason to believe that substances have migrated to a neighbouring parcel and are causing (or are likely causing) contamination of that parcel, specific requirements are triggered.
Discovering contaminant migration
Responsible persons have 15 days to notify the affected parcel owner(s) and the ministry if a contamination migration has occurred or is likely, in keeping with Sections 57 and 60.1 of the Contaminated Sites Regulation (CSR).
The responsible person must fill out a Notifications of Likely or Actual Migration (NOM) (Online) and follow the instructions provided.
The requirement to use this form is established in Protocol 17: Site Remediation Forms (PDF, 1.7MB).
Sending the notification
The responsible person for the source parcel might be:
- A parcel owner
- The operator of a business
- A leaseholder
- The spiller
- Anyone else responsible for releasing 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.
Who to notify
The owner of a neighbouring parcel that's likely or actually contaminated by the migration of substances must be notified and 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 the real property.
Owners could include lessees, tenants and owners of neighbouring roadways, easements and utility corridors, including municipalities and the provincial government.
Exceptions
Once all appropriate parties are notified, there's 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 are discovered
Under Protocol 12: Site Risk Classification, Reclassification and Reporting (Revised) (PDF, 737KB), a Site Risk Classification Report (PDF, 313KB) (and, when required, the Exposure Pathway Questionnaire, must be sent to the ministry with a NOM.
The Exposure Pathway Questionnaire is included in the Site Risk Classification Report.
Duty to provide Site Disclosure Statements
A prospective buyer must be provided with a Site Disclosure Statement for lands contaminated by the migration of substances.
Visit our Site identification page for more information.
Site registry
The registrar records every NOM submitted to the ministry under the record for the source 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 to both 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, 68KB) for a summary of the communication expectations.
The ministry expects the responsible person and affected parties to exchange information and hold discussions to develop and implement a mutually satisfactory remediation plan.
Access to affected parcels for investigation and remediation purposes
Often a source parcel owner needs access to affected parcels to enable investigation of potential contamination. The source parcel responsible person must 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 the future sale of the affected parcel or the ability to obtain financing for redevelopment.
Applying for an Approval in Principle or a Certificate of Compliance for affected parcels
A source parcel owner 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.
Learn more about Certification and Approvals in Principle.
Information for affected parcel owners
The source parcel owner is expected to provide the affected parcel owner in writing by registered letter (review 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 by phone, email, 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 phone, email, or personal contact.
Ministry decisions
When the ministry is satisfied that the communication expectations have been met, the ministry typically issues an Approval in Principle or a Certificate of Compliance based on the situation’s specifics and comments received from a range of persons representing those affected by the ministry’s decision.
Such persons could include:
- Utility companies
- Operators at the affected site
- Mortgage holders
When source parcel applicants do not satisfy one or more 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 persons affected by the ministry’s decision.
To assist in making such a decision, the ministry advises applicants to ensure that any risk assessment and/or remediation plan developed for the affected parcel meets the requirements of the 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 documented and provided to the ministry.
Advice for affected parcel owners
Under Section 46(1)(j) of the 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 under an environmental management area remediation plan, as long as those substances did not originate from the affected parcel.
Seek competent advice
Since the contaminated site provisions under the 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 and a lawyer with experience with provincial contaminated sites laws. Note that the ministry does not provide legal advice.
What to do if a source parcel does not provide information
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.
Obtain ministry records
Affected parcel owners may want to obtain any information on the source and affected parcels held by the ministry.
Consult the Site information page for further details.
The information on this web page does not replace the legislative requirements in the EMA or its regulations and it does not list all provisions for contaminated site services.
If there are differences between this information and the Act, Regulation, or Protocols, the Act, Regulation, and Protocols apply.