Decision Date: March 3, 2004

Panel: Alan Andison, Dr. Robert Cameron, Margaret Eriksson

Keywords: Waste Management Act – s. 26.5, 26.6; Contaminated Sites Regulation – s.29; mercury contaminations;

British Columbia Railway Company (“BCRC”), BC Rail Ltd. (“BC Rail”), BCR Properties Ltd. (“BCR Properties”), and the BC Rail Partnership (“BCR Partnership”) (collectively referred to as the “BCR Group”), appealed the decision of the Director of Waste Management (the “Director”), to add BCR Group as a person responsible for remediation on remediation order OS-16149 (the “Order”).  In the appeal, BCR Group sought an order that BCRC, BC Rail and BCR Properties be removed from the Order.

The issues in this appeal were: whether an appeal under the Waste Management Act (the “Act”) is a “trial de novo” or merely an appeal on the record of the administrative decision maker below; whether all members of the BCR Group are “responsible persons” under section 26.5(1) of the Act; whether those members of the BCR Group that are responsible persons are entitled to the exemption from liability under section 26.6(1)(e) of the Act; whether section 29 of the Contaminated Sites Regulation (the “Regulation”) should be “read down” so as to be inapplicable in this case; whether section 29 of the Regulation nullifies an exemption that the BCR Group, or any of its member companies, could assert under section 26.6(1)(e) of the Act; whether there was a private agreement respecting liability for remediation that should have been taken into account under section 27.1(4)(a) of the Act; and, whether the Board should remove the BCR Group or any of its member companies from the Order, and to refuse to name BCR Partnership in the Order as a responsible person.

The Board held that the relevant provisions of the Act clearly demonstrated the Legislature’s intention to give the Board “hybrid powers” to handle appeals in a flexible manner.  Through the use of these “hybrid powers” the Board may choose to conduct a narrower review of the decision below, or it may opt to conduct a hearing de novo and take a fresh look at the relevant issues or evidence.

The Board held that all members of the BCR Group were prima facie “responsible persons” with regard to remediation of the site, by virtue of their status as current or previous “owners” of the plant site, as specified in section 26.5(1) of the Act.  In addition, the Board found that BC Rail, BCR Properties and BCR Partnership were not exempt from liability for remediation under section 26.6(1)(e) of the Act, because each were separate corporate entities that were owners of the plant site after it had become contaminated.  The Board found that BCRC was entitled to the exemption from liability because it was not listed as an owner of a contaminated site within the meaning of the Act, even though it owned land adjacent to the contaminated site which contained some contamination.

The Board found that section 29 of the Regulation was inconsistent with section 26.6(1)(e) of the Act and was an invalid attempt to dispense with the exemption from liability in section 26.6(1)(e) for an entire class of persons.  Accordingly, the Board concluded that section 29 of the Regulation would not be considered for the purposes of this appeal.  Given this finding, it was unnecessary for the Board to address the fifth issue.

The Board found that there was not an applicable private agreement respecting liability for remediation.

Finally, the majority of the Board held that BC Rail, BCR Properties, and BCR Partnership should remain on the Order.  The Board identified that it was the clear intent of the Legislature to find landowner’s responsible for the contamination of their land, even if some other person may have caused the contamination.  The Board noted this to be expressly relevant when the landowner receives financial benefit from their property.

A minority of the Board held that BC Rail and BCR Properties should be removed from the Order, and BCR Properties should not have been named in the Order.

The appeal was dismissed, in part.