Canada: Reporting "Historical" Contamination: Recent Developments In Manitoba And Saskatchewan

Spills are reportable in all Canadian jurisdictions. However, the existence and extent of an obligation to notify regulators of the discovery of historical contamination on one's own property varies from province to province.

For example, in Ontario there is a requirement to file a Record of Site Condition on a public registry before undertaking a prescribed change in the use of property, which may trigger the need for a clean-up or the performance of a risk assessment.1 The discovery of historical contamination may also trigger a duty to report, if one causes or permits an ongoing discharge that is causing or is likely to cause an adverse effect.2 In Québec, there is a duty to report historical contamination in specific situations. These may include the discovery of contamination originating from prescribed industries and either found at the limit of one's property or if there is a serious risk of off-site contamination3. Such reporting requirements may also be triggered by a prescribed change in use or a prescribed cessation in use4 as well as in the context of a permit application. However, in both jurisdictions, the obligation to report is triggered by something more than simply finding contamination that exceeds a standard on one's own property.

In Alberta, Land Use Bylaws5 typically provide the development authority with the ability to require an environmental site assessment as a condition of issuing,6 or in support of an application for,7 a development permit, which may trigger the need for site remediation.8 As with Ontario, in certain circumstances, there may exist an obligation on the part of landowners or occupiers to report the discovery of pre-existing historical contamination, where the release may cause, is causing or has caused an adverse effect.9 Similarly, in British Columbia, there is a requirement to submit a site profile in certain circumstances, including when seeking a change of use or a development permit for the property. The site profile may trigger the requirement of a site investigation and, in turn remediation or a risk assessment10. In addition, where historical contamination is discovered that is migrating or is likely to migrate to neighbouring properties, a duty to report is triggered11.

Recently, Saskatchewan and Manitoba have brought legislation into force requiring that owners and occupiers of land report the discovery of contaminants exceeding prescribed standards. In contrast to other provinces, these new obligations are in addition to reporting obligations tied to adverse effects or other factors. Owners, occupiers, and other persons engaged in routine due diligence investigations should be aware that the mere discovery of certain exceedances on property in Saskatchewan and Manitoba can now trigger an obligation to report, even in the absence of adverse effects or a change in the use of the property.

Under section 3.1 of the Manitoba Contaminated Sites Remediation Act (the "CSRA")12, the owner or occupier of a site must notify the director upon becoming aware of information that indicates the site has been contaminated at a level that exceeds a standard prescribed by regulation. The relevant standards include:

  • the C.C.M.E. Environmental Quality Guidelines, 1999;
  • the C.C.M.E. Canada-Wide Standards for Petroleum Hydrocarbons (PHC) in Soil, 2008; and
  • the Canadian Drinking Water Quality Guidelines (Health Canada: 2012).

In the absence of criteria under the aforementioned guidelines, Manitoba has adopted the Ontario Ministry of Environment Soil, Ground Water and Sediment Standards for Use Under Part XV.1 of the Environmental Protection Act (April 15, 2011) as a "secondary" standard.

A report of discovered contamination will trigger a determination by Manitoba Conservation and Water Stewardship whether the site should be designated under the CSRA. The CSRA enables the director to designate a site as an "impacted" site or as a "contaminated" site.

Both designations require that a remediation plan be submitted. If the site is designated as a "contaminated" site, notice of the designation will be sent to the Land Titles Office, the registered owner, person with a registered interest (e.g. mortgagor) and the municipality.

As for Saskatchewan, under the Discharge and Discovery Reporting Chapter of the Saskatchewan Environment Code (Chapter B.1.1), adopted pursuant to The Environmental Management and Protection Act, 201013, the discovery of a substance must be reported if the substance meets the criteria set out in Table 2 of the Discharge and Discovery Reporting Standard for the applicable media with respect to that substance. Table 2 currently contains reportable concentrations for 25 "substances", including petroleum hydrocarbons (subdivided by fractions), a number of metals, and two halogenated compounds. The persons required to report include owners and occupiers of the land on which the substance is discovered, every person who discovers a substance while conducting work, and prescribed public officials.

Those involved in intrusive testing in Saskatchewan and Manitoba, for example in the course of conducting due diligence for a transaction or otherwise, should take note that owners/occupants in those provinces are now required to report if they become aware that contaminants on their properties exceed prescribed standards.

Footnotes

1 Environmental Protection Act (Ontario), RSO 1980, c E-19, s.168.3.1.

2 ibid, s.15.

3 Environment Quality Act (Québec), CQLR, c. Q-2, s.31.52.

4 ibid, s.31.51 and s.31.53.

5 See section 640(2)(c)(iv) of the Municipal Government Act, RSA 2000, c M-26, which provides that "[a] land use bylaw... must establish a method of making decisions on applications for development permits and issuing development permits for any development, including provision for...the conditions that are to be attached, or that the development authority may attach, to a development permit...".

6 See, for example, sections 28(3)(a) and 38(1)(d) of Calgary's Land Use Bylaw which permit the Development Authority, as a condition of issuing a development permit for a permitted or a discretionary use, respectively, to require an environmental site assessment.

7 See, for example, section 26(3) of Calgary's Land Use Bylaw which requires an applicant for a development permit to provide such information as may be required by the Development Authority to evaluate an application for a development permit. See also, for example, Medicine Hat's Land Use Bylaw which provides that a Development Authority may require an Environmental Site Assessment Report as supporting material to an application for a Development Permit or to a Rezoning Application, where in the opinion of the Development Authority: (1) there may be a risk of any pre-existing contamination on or near the Site; or (2) the proposed Development may create an environmental risk to other lands.

8 See also City of Calgary's "Environmental Development Review Policy", Policy UEP003, Report Number 2005-61, approved January 6, 2006.

9 Environmental Protection and Enhancement Act, RSA 2000, c E-12 ("EPEA"), ss. 110(1) and (2). "Adverse effect" is defined in section 1(b) of EPEA as "impairment of or damage to the environment, human health or safety or property."

10 Environmental Management Act (British Columbia), R.S.B.C. 2002 c. 53, ss 40-41.

11 Contaminated Sites Regulation (British Columbia).

12 CCSM, c C205.

13 SS, E-10.22 (in force, June 1, 2015). B.C. Reg. 375/96, ss. 57 and 60.1.

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