Decision Date: October 16, 2003

Panel: Alan Andison, Fred Henton, Phillip Wong

Keywords: Waste Management Act, ss. 1 – definition of “works”, 11 – definition of “contaminated site”, 26, 26.4, 27; Interpretation Act ss. 1 – definition of “regulation”, 29-definition of “prescribed”; Contaminated Sites Regulation ss. 1-definition of “background concentration”, 11, 53

Westcliff Management Ltd. and Morris Kowall appealed the decision of the Assistant Manager to issue a Final Determination stating that a property located at 1150 Lakeside Drive, Nelson (the “property”) is a contaminated site.  The property has, under a permit, been used as a landfill in the past.

The issues in this appeal were: whether the landfill constitutes “works” under the Waste Management Act (the “Act”), whether a landfill permitted under the Act can also be the subject of contaminated sites provisions, whether the terms of the waste permit become the “prescribed” standards for the purpose of assessing whether the property is a contaminated site, and whether the chemical contamination exceeds the “background concentration” in the Contaminated Sites Regulation.

The Board found that the property is “land”, and that it therefore falls under the definition of “contaminated site.”  The Board also found that the permit authorizing the “works” in question was cancelled, which would preclude this property from being characterized as “works.”  The Board noted that even if the property could also be characterized as “works,” it would not be exempt from categorization as a contaminated site.

The Board held that activities arising from permits are not immune from categorization as contaminated sites.

The Board further held that the conditions of the permit were not “prescribed,” and, therefore, that the standards contained in the permit did not function similarly to a regulation.  The Board found that, for the purposes of the Act, “prescribed” standards are those found in the Contaminated Sites Regulation, not those authorized by a permit.

Finally, the Board held that the definition of “background concentration” of a substance is limited to substances occurring naturally at the site.  There was no evidence before the Board to show that the contaminants at the property occurred naturally.  The Board rejected the Appellants’ argument that the property is not a contaminated site.

The appeal was dismissed.