Contaminated Sites Regulation Changes
Published on Quickscribe
The consolidation of the "Stage 10 Omnibus Amendments" made by B.C. Regs. 253/2016 and 196/2017 to the Contaminated Sites Regulation is now available on Quickscribe. Effective November 1, 2017, these changes represent the most significant update to the regulation since its enactment in April 1997. Using contemporary science on chemical toxicity, transport and land use, over 8,500 environmental quality standards are updated and many new ones added for emerging contaminants that were not regulated in the past. Also added are new standards addressing wildlands and high density land uses. To ensure regular assessment and updating, a mandatory provision was included to establish an ongoing five-year fixed cycle of review of the standards. Consequential amendments were also made to the Hazardous Waste Regulation and the Organic Matter Recycling Regulation to maintain consistency with the new standards.

BC Court of Appeal Rules that Contaminated Property
Must Be Assessed Using Highest and Best Use
In a highly anticipated decision for the valuation of contaminated property in British Columbia, the BC Court of Appeal overturned a decision of the BC Supreme Court and set out how contaminated property should be assessed for tax purposes.

The case involved a Brownfield – a contaminated commercial property with potential for economic redevelopment. The property in question had been operated as a retail gas station, automobile dealership, and repair shop. The soil on the property was contaminated, and the contamination had spread to neighbouring properties. The owner of the property was in considerable financial distress. In addition to tax arrears, legal bills, and accounting bills, she was defending a claim from the owner of a neighbouring property. She therefore arranged to sell the property to this owner through a share purchase agreement for $42,363.24, which was sufficient to cover her debts. She also obtained a full indemnity from any legal liabilities she might have in the future regarding the contamination. The existing structure on the property was renovated and converted into income-producing multi-tenant commercial retail units.

In 2013, the property was assessed for taxation purposes. The assessor had valued the land and improvements at $975,000. The property owner, Victory Motors (Abbotsford) Ltd. ("Victory Motors"), appealed, and the Property Assessment Review Panel reduced that assessment to $500,000. Victory Motors appealed to the Property Assessment Appeal Board ("Board"), claiming the property had no value. The Board reinstated the original assessment. The owner appealed again, to the Supreme Court of British Columbia. That court found that the Board had erred in law, and remitted the matter to the Board for reconsideration. The Assessor appealed that decision. Read the full article by Luke Dineley of Borden Ladner Gervais LLP.

Alternative Energy Sources as Good or
Better than Site C Dam, Report Finds
Alternative energy sources such as wind and geothermal could be as good or better for BC ratepayers than the Site C project, according to a report prepared by the independent BC Utilities Commission (BCUC).

The independent body, which is responsible for making sure British Columbians pay fair rates for energy and ICBC costs, also found BC Hydro's projected energy needs are "excessively optimistic" and construction of the dam is likely behind schedule and over budget. Other key findings include:

• Cancelling the project would cost $1.8 billion.
• Suspending the project and restarting it at a later date would cost around $3.6 billion on top of existing construction costs.
• Completing the project could cost over $10 billion.

The BCUC also notes that both completing and continuing the project come with their own unique risks, and ultimately did not take a position on whether termination or completion of the project would provide a better outcome for ratepayers. Read the full CBC News article by Andrew Kurjata.

'Unfair, Unwarranted and Deeply Troubling': U.S. Sets
Final Import Duties on Canadian Softwood Lumber
The U.S. Commerce Department on Thursday [November 2nd] announced it will impose finalized softwood lumber import duties on several Canadian firms. The U.S. government said Canadian producers were selling into the U.S. market at less than fair value, and said Canada was providing "unfair subsidies" to domestic producers. "While I am disappointed that a negotiated agreement could not be made between domestic and Canadian softwood producers, the United States is committed to free, fair and reciprocal trade with Canada," said Commerce Secretary Wilbur Ross in a statement. "This decision is based on a full and unbiased review of the facts in an open and transparent process that defends American workers and businesses from unfair trade practices," Ross said. Read the CBC article. 

Did I Forget the "Dam" Licence? A Primer on BC’s
Regulatory Power Over Water Storage Facilities
Should waves of concern wash over British Columbia after the Canadian Centre for Policy Alternatives sent a letter to the BC Environmental Assessment Office claiming nearly 60 unlicensed dams were built in northeast BC to store fresh water for natural gas fracking operations? The letter claims many of these dams lack proper regulatory authorization, show signs of failing and were built without meaningful consultation with First Nations, boosting interest in, and media attention to, regulation of water storage facilities in BC. This bulletin provides an overview of the regulatory framework for dams in BC, which was recently updated by the BC Water Sustainability Act (WSA) and its associated regulations. The WSA replaced the former BC Water Act regime and came into force in February 2016. For more information, see our March 2016 Blakes Bulletin: B.C. Enters New Era of Water Regulation as Water Sustainability Act Is Brought into Force. Under the updated WSA, dams need to have a water licence and, if they are over a certain size, must also meet the requirements in the Dam Safety Regulation (DSR). Further, larger dams are subject to an environmental assessment and approval under the Environmental Assessment Act (EAA). Read the full article by Sandy Carpenter and Valerie Simion (Student-at-Law) of Blake, Cassels & Graydon LLP. 

New Spill Response Regulations to Take Effect October 30, 2017
British Columbia has a greater ability to prepare for, respond to, and recover from environmental emergencies with the introduction of the first phase of regulations strengthening the Environmental Management Act. The regulations bring Division 2.1 Spill Preparedness, Response and Recovery of the Environmental Management Act into force as of October 30, 2017. The three new regulations are: (1) Spill Preparedness, Response and Recovery Regulation; (2) Spill Reporting Regulation; and, (3) Spill Contingency Planning Regulation. Division 2.1 and the regulations set a foundation for strengthening spill response in B.C. By early 2018, the Ministry of Environment and Climate Change Strategy will also begin engaging with interested parties regarding the development of further enhancements to spill regulations.

What’s New as of October 30, 2017
The enhancements to the Environmental Management Act and the regulations include new preparedness, response and recovery requirements.

• Preparedness: Regulated persons have been identified as transporters of liquid petroleum products. The owner of all pipelines transporting liquid petroleum products are regulated persons, as are the owners of rail and highway transporters in possession of 10,000 liters or more. To demonstrate preparedness, regulated persons are required to develop and test provincial spill contingency plans.
• Response and recovery: A responsible person is someone who has possession, charge or control of a substance or thing when a spill of the substance or thing occurs or is at imminent risk of occurring. Responsible persons will be required to meet enhanced spill reporting requirements, carry out all the response actions specified in the Act as well as any additional steps required by a director, and, if directed to do so, develop and implement a recovery plan that addresses any damage done to the environment.

Read the full government news release. 

Recovery of Government Costs under the Wildfire Act
By mid-August the BC Wildfire Service had declared BC’s 2017 wildfire season the "worse ever" in terms of hectares burned. Aside from the human tragedy of wildfire, and the loss of resources, there are also enormous costs that government incurs in relation to wildfire. One report from early September had already pegged the bill for BC’s 2017 wildfire season at nearly half a billion dollars – also a record, and many times over budget. Under the Wildfire Act (the "Act"), government has the authority to recover wildfire-related costs (including the costs of fire control; the value of lost or damaged Crown timber, other resources, and property; and silviculture costs) administratively from third parties. This allows government to pursue recovery of wildfire-related costs without the bother of a law suit. Government simply has to determine its losses in accordance with procedures outlined in the Wildfire Regulation (the "Regulation"), and send the bill to a third party deemed liable under the Act. Read the full article by Jeff Waatainen, LLB, in this issue of BC Forest Professional.

There were two Environmental Appeal Board decisions in the month of October.

Water Act

• Stk'emlúpsemc te Secwepemc Nation v. Assistant Water Manager, Water Stewardship, Thompson Rivers Natural Resource District [Application to Postpone Hearing – Denied]

Environmental Management Act

• Gibsons Alliance of Business and Community Society; Marcia Timbres v. Director, Environmental Management Act [Preliminary Issue of Jurisdiction – Denied]