Keywords: Environmental Management Act – s. 104; Stay Decision; remediation order; contaminated site; British Columbia Hydro and Power Authority v. British Columbia (Environmental Appeal Board).
The British Columbia Power and Hydro Authority (“BC Hydro”) applied for a stay of a decision by the Assistant Director of Waste Management (the “Assistant Director”) to approve an amended remediation plan. The amended remediation plan pertains to a remediation order that named BC Hydro, along with the Third Parties, as persons responsible for remediating a contaminated site. The Assistant Director also amended the remediation order to reflect the amended remediation plan. BC Hydro submitted that the Assistant Director’s decision to approve the remediation plan, as it pertained to BC Hydro, was outside of his jurisdiction, given the Court’s decision in British Columbia Hydro and Power Authority v. British Columbia (Environmental Appeal Board) 2003 BCCA 436 (hereinafter BC Hydro), where it held that BC Hydro was not liable for contamination arising from the activities of its predecessor corporations.
The Board found that the BC Hydro decision did not provide sufficient grounds to conclude that the Assistant Director’s decision was beyond his jurisdiction, nor did it provide a basis for issuing a stay. The Board found that the parties did not provide sufficient evidence to establish that BC Hydro did or did not, in its own right, have a legal interest in the site. The Board noted that if BC Hydro’s potential liability for remediating the site did not arise solely from the actions of its predecessors, then the BC Hydro decision did not apply to the present application. The applicability of the BC Hydro decision was BC Hydro’s only basis for requesting a stay; therefore, the Board did not address the issues of irreparable harm and balance of convenience. The application for a stay was denied.
