The HOLY GRAIL: What are Certificates of Compliance and why do we all want one?

Many new client calls start with the same two questions: “What is a CoC?” “And how can we get one?” This is understandable, because in BC one only knows that the Ministry of Environment is content with a remediation if and when they issue a CoC (Certificate of Compliance) for the site. Until the CoC is signed and delivered, everyone involved is a bit on edge. So, why has the CoC become the Holy Grail?

Well, in short, it means both investigation and remediation are complete, and that the Ministry is satisfied with the result. And the Ministry is only satisfied because the remediation complies with the Environmental Management Act (EMA) and the regulations. So, if you are looking for a plain language definition of ‘CoC,’ it is this last concept – the remediation complies with the law, hence ‘certificate of compliance’.

Such compliance, certified in the form of a CoC, opens the door to many good things. For example, a developer can get its occupancy permit, at the end of a long build, only after a CoC has been issued. A property owner can feel comfortable selling if they have a CoC confirming they properly remediated (in fact, such a seller enjoys an EMA exemption from future liability in such circumstances). A CoC also supports that the costs of remediation were reasonably incurred, so a potential claim against the actual polluters becomes easier to establish. This all sounds very nice, but CoCs are not bullet proof.

Some shortcomings of a CoC include the following:

1. CoCs are based on the science and information provided to the Ministry. If your expert did not find all contamination or get their analysis right, even through no fault on their part, a CoC may fall apart down the road.

2. CoCs almost always contain conditions, which means there will be fine print that must be read and understood. Examples include restrictions on building or digging, monitoring requirements, reporting requirements, and many others.

3. The existence of a CoC does not mean a site is ‘clean.’ This is because certification can be based on actual excavation of contamination or on a risk assessment that results in risks being analyzed and determined acceptable while contamination is left in the ground. These details are found in the fine print of the CoC, and therefore not all CoCs are created equal.

4. Regulations and protocols change over time, especially in the environmental arena. An old CoC based on outdated science or regs may not get you what you need.

In summary, CoCs in BC help contaminated lands re-enter the stream of commerce labelled ‘Ministry-approved.’ Whether municipal permitting is required, or a sale is on the horizon, such certification plays a meaningful role. But it should not be misunderstood. There are many routes to obtaining a CoC, and each one, when carefully reviewed, dictates whether the CoC serves your purposes. Each CoC must be read and understood and, if in doubt, advice from a professional should be obtained.

If you have questions about CoCs or any other Ministry instrument, we invite you to contact either of our Environmental Law Group co-chairs, Richard Bereti or Adam Way.