Changes to British Columbia’s Environmental Management Act (EMA) and Contaminated Sites Regulation (CSR) will introduce a new regime governing soil relocation in B.C. The changes will increase testing requirements prior to soil relocation and implement new requirements for the relocation of both contaminated and uncontaminated soils.
CURRENT REQUIREMENTS FOR SOIL RELOCATION - CSRAs
Currently, persons relocating contaminated soil (soil that exceeds the CSR land use standards of the receiving site) must enter into a Contaminated Soil Relocation Agreement (CSRA) with the owner or operator of the receiving site and the Director of Waste Management. There are currently no requirements for relocating uncontaminated soil or general requirements to analyze soil prior to relocating it.
THE CHANGES TO THE SOIL RELOCATION REQUIREMENTS
The changes to the soil relocation requirements will apply to the relocation of soil from a site with an industrial or commercial use specified on Schedule 2 of the CSR in the following quantities:
- over 30 m3 of soil (calculated by adding the amounts removed over the course of the same project in two years) from a site classified as low, moderate, medium or intermediate risk; and
- any volume of soil removed from a source site classified as high risk.
Any such soil will be required to undergo testing prior to relocation to determine whether the soil meets the land use standards at the receiving site. For uncontaminated soil (soil that meets the land use standards at the receiving site), notice must be provided to the Ministry of Environment and Climate Change Strategy (Ministry) at least one week prior to relocating it in the form of a Soil Relocation Notification Form (SRNF). The SRNF requires a summary of the analysis of the quality of the soil, including which substances in the soil or soil vapour were analyzed and their concentrations. The Ministry has advised that soil relocation information will be made available to the public.
Notice to the Ministry is not required in certain circumstances, including:
- when the receiving site is outside B.C.;
- when the receiving site is on federal land, other than reserves within the meaning of the Indian Act;
- when the soil is extracted in accordance with a Mines Act permit from a site that has only been used for a low-impact land use or certain quarry activities and the soil is transported directly to the receiving site;
- when the soil is preload that was originally extracted from a site used for a low-impact land use;
- when the soil is winter-maintenance sand; and
- when the soil is “waste”, and the deposit is authorized by a valid and subsisting permit, approval, order, or waste management plan.
Contaminated soil (soil that exceeds the CSR land use standards of the receiving site) is not subject to the notification requirements. Instead, contaminated soil will be prescribed as “waste” under the EMA and regulated under existing provisions of the EMA and CSR (such as waste discharge permits, independent remediation requirements and approvals in principle).
ADDITIONAL REQUIREMENTS FOR HIGH VOLUME SOIL RECEIVING SITES
The amendments will impose additional requirements for sites receiving over 20,000 m3 of soil (High Volume Soil Receiving Sites). High Volume Soil Receiving Sites must be registered with the Ministry and have soil management plans developed by Qualified Professionals in place. Such plans must include procedures for tracking soil and monitoring seasonal groundwater, as well as closure plans. Existing sites will be exempt from these requirements if the soil is relocated prior to November 1, 2022.
COMMENTARY
Under the new EMA and CSR amendments, requirements for soil relocation will apply to significantly more sites and increase the obligations on those relocating soil. Project proponents, developers and landowners should budget substantially more time and money to comply with the new requirements. All soil subject to the new requirements will need to undergo testing prior to relocation, and for uncontaminated soil, at least one week’s notice is required prior to relocating the soil. For those relocating contaminated soil, significant time may be required to obtain an appropriate instrument under the EMA or CSR prior to relocating the soil. Although these changes will not take place until March 2023, with the lead times on projects, anticipating these changes now may save time and cost in the long run.
