Developing Contaminated Land in British Columbia – Cleaning up Means Looking Ahead

Commercial and industrial lands are often the subject of change – change in ownership, change in use, and of course regulatory change. By design, these events often trigger environmental examination of land, with the goal being to ensure it is clean enough to accommodate its current use, but also its potential future uses. How is this accomplished? Well, the BC Contaminated Sites Regulation says a Ministry director ‘must’ account for future uses, including potential rezoning, when determining the standard of ‘clean’ to be applied to a given remediation. And this requirement to ‘look ahead’ can impact property owners and developers in a number of important ways.

First, for those forced to look into the future when cleaning up commercial or industrial land, remediation standards and costs will usually be higher on account of the land’s future use. A common example is the ability to rezone the former commercial or industrial lands for mixed commercial-residential development. Second, once those costs are incurred and a more rigorous, forward-looking clean-up is completed, a Ministry Certificate of Compliance can be obtained confirming a proper remediation. Third, once cleaned to this standard, the person who obtains a Certificate enjoys a regulatory exemption from liability that protects against cost recovery claims under the Environmental Management Act where a future owner again changes the land’s use and carries out more remediation. In a world where environmental liability seems to last forever, this exemption, which follows the acquisition of a Certificate, provides much more certainty.

The other side of this coin is that purchasers looking to acquire or develop formerly contaminated land must look closely at any Ministry Certificate attached to it. If the Certificate was properly obtained by the vendor or the original polluter, it may afford them an exemption that prevents the purchaser from recovering further remediation costs if more remediation is undertaken. The key question will be whether the Certificate properly accounted for reasonable future uses when it was obtained. If it did, those who obtained it may be protected from liability.

If you have questions about how potential future uses may impact your development or remediation plans, or how helpful an existing Certificate really is, please contact either of our Environmental Law Group co-chairs, Richard Bereti or Adam Way.