Decision Date: January 29, 2003

Panel: Alan Andison, Dr. Robert Cameron, Joanne Dunaway

Keywords:  Waste Management Act – ss. 26(1) definitions of “contaminated site” and “contamination”, 26.2(1), 26.6(1)(i), 27.1(1), 27.1(2), 27.1(10); remediation order; persons responsible for remediation; application for costs; BETX (benzene, ethylbenzene, toluene, xylenes); gasoline contamination; drinking water wells; groundwater flow

This was an appeal against a decision of the Regional Waste Manager (the “Regional Manager”) to issue a remediation order (the “Order”) naming Alfred and Norma Penner (the “Penners”), Petro-Canada Ltd., and Wildwood Swifty’s Foods Ltd. as persons responsible for remediation of contamination at and adjacent to the Wildwood Gas Bar. The Order characterised the Wildwood Gas Bar and two neighbouring properties, Geddes Lands and McCombe Lands, as properties contaminated by petroleum related hydrocarbons. The Order stated that benzene concentrations in excess of safe drinking water standards were found in wells on the Geddes Lands and McCombe Lands. The parties made submissions regarding who should be named as responsible persons on the Order, and whether the contamination originated from the Gas Bar.

The Board found that, on a balance of probabilities, the Gas Bar was not the source of contamination on the Geddes and McCombe Lands. The Panel accepted the evidence presented by the majority of the experts that a small spill of gasoline somewhere to the northeast of the Geddes and McCombe Lands had caused the contamination.

The Board further found that the contamination at the Gas Bar originated from the same source as the contamination that reached the McCombe and Geddes Wells, and not from historic contamination identified in 1996.

The Board reversed the decision of the Regional Manager to issue the Order and found that the Penners, Petro-Canada, and any other persons who owned or operated the Gas Bar are not responsible persons in respect of the benzene contamination on the Geddes Lands, McCombe Lands, and the Gas Bar, pursuant to section 26.6(1)(i) of the Waste Management Act. The Board denied the applications for costs by the Penners, Petro-Canada, Ms. Geddes, and Race Trac Fuels Ltd.