Decision Date: November 21, 2006

Panel: Don Cummings

Keywords: Environmental Management Act – s. 77, 81, 83; information order; hazardous waste; hazardous waste management facility.

Ed Ilnicki (the “Appellant”) appealed an Information Order issued by the Director, Environmental Management Act (the “Act”), which required the Appellant, Lexington Properties Ltd., and Henry Rempel to provide information pursuant to section 77 of the Act.

The Appellant operates a business described on his business licence as “demolish, repair, design & rebuild buildings, machinery & equipment.”  The Appellant testified that he stored materials necessary for his business in a warehouse located on the property subject to the Information Order (the “Property”).

A Toxic Management/Emergency Response Officer (the “Officer”) with the Ministry uncovered the storage of large quantities of unidentifiable wastes during an inspection of the Property.  The Officer was concerned that the wastes met the criteria for hazardous waste as defined in the Hazardous Waste Regulation (the “Regulation”).  The Appellant was asked to remove hazardous waste in excess of what is permitted under the Regulation and to provide a report to the Ministry.

The Appellant took issue with this request and informed the Ministry that the manner in which he kept his personal property should be of no concern to it.  After a second request was refused, the Ministry issued the Information Order under appeal.  The Information Order imposed a number of requirements on the Appellant, including retaining a qualified third party consultant to conduct an inventory and characterize the wastes store on the Property, and providing an evaluation of whether the wastes were being stored in a safe manner.

The Appellant appealed the Information Order.  Before the Appeal was heard, the Third Party, Mr. Rempel, advised the Board that the Appellant had vacated the Property.

The Appellant argued that the Information Order should not have been issued because the material stored on the Property was necessary for his business and was not waste, and because he was not operating a “facility” within the meaning of the Regulation.  The Panel found that these questions were not decisive of the main issue, which was whether it was reasonable in the circumstances to issue the Information Order.

Based on the language in section 77 of the Act, which authorizes the issuance of information orders, the Panel found that an information order may be issued where there is a reasonable suspicion, or there is evidence of a reasonable risk, that an operation or activity is likely to cause, or has caused “pollution” as defined in the Act.

The Panel further found that it was reasonable to issue the Information Order on the facts of this case.  The Officer found approximately 294 forty-five imperial gallon drums of materials in his inspection, many of which were flammable, corrosive, or unlabelled.  The Appellant had previously operated an unauthorized waste storage facility at another location and had been convicted in Provincial Court of two offences related to his operations at that facility.  The Ministry had issued a pollution prevention order for this other location and had removed a large amount of waste stored in forty-five imperial gallon drums.  The Ministry was justifiably concerned that some of the waste that had been stored at the other location may have been moved to the Property.  When all avenues to seek information about the material stored on the Property on a voluntary basis were exhausted, the Respondent was left with no option but to issue the Information Order.

Because the Appellant had moved the materials from the Property to a new location, the Respondent requested that the Information Order remain in effect.  The Panel agreed with this request.

The Panel also considered the other issues raised by the Appellant.  Among other things, the Appellant argued that the dangerous goods stored on the Property were not “waste” because they could still be used for their original purposes.  However, the Appellant provided no substantiation to support his assertion that the large volume of material stored at the Property was necessary to conduct his business.  The Panel could not accept that some material, such as used oil filters, had any use whatsoever.  The Panel questioned the Appellant’s credibility and, in any case, felt that the issue distracted from whether it was reasonable to issue the Information Order.

The Appellant also argued that he was not operating a hazardous waste management facility on the Property and that the Officer had “gained access to [the Property] by coercing the Abbotsford Fire Department to a safety inspection, thereby entering the premises without warrant or just cause.”  The Panel found that these issues were irrelevant to the appeal.

Finally, the Appellant claimed that the Information Order was unnecessary and too costly to comply with.  The Panel noted that the Appellant was given the opportunity to provide information in a far less costly manner, but he had failed to do so.

Accordingly, the appeal was dismissed.