Decision Date: June 5, 2007

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99, s. 53; Contaminated Sites Regulation – s. 47; approval in principle; appealable decision

The BC Hydro and Power Authority (“BC Hydro”) appealed the decision of the Director, Environmental Management Act (the “Director”) to issue an amended approval in principle (the “Amended AIP”). The contentious amendments required BC Hydro to prepare a remediation plan and advise how it would remediate contamination that had migrated from its properties to adjacent parcels of land owned by 427958 BC Ltd., doing business as the Super Save Group of Companies (“Super Save”), and Ocean Construction Supplies Ltd. (“Ocean Construction”).

Although it filed the appeal, BC Hydro claimed that the Board has no jurisdiction over the appeal because the issuance of the Amended AIP is not a “decision” under section 99 of the Environmental Management Act (the “Act”). The sole purpose of the appeal was to protect its rights should the Board be found to have jurisdiction.

Section 99 of the Act defines decisions that may be appealed to the Board. Neither an approval in principle, nor an amended approval in principle is expressly included in the exhaustive list set out in section 99. Therefore, in order for the amended AIP to be appealable, it must be found to fit within one of the categories in the definition, based on the principles of statutory interpretation.

The Director argued that the Amended AIP is a permit based on section 47(6) of the Contaminated Sites Regulation (the “Regulation”), which provides that an approval in principle is a “permit within the meaning of the Act for any facility” that meets the criteria listed. The Board found that an approval in principle is a permit only insofar as it applies to such facilities, namely, those facilities that meet the criteria listed in subsections 47(6)(a) through (c). The Board found that this interpretation is consistent with the purpose of section 47(6) of the Regulation, which is to make it easier for holders of approvals in principle to remediate their contaminated sites by exempting them from the requirement to obtain a permit for certain facilities. Moreover, interpreting section 47(6) as deeming an approval in principle, in its entirety, to be a permit would lead to a number of conflicts with the Act and create confusion when applying certain provisions of the Act. Therefore, the provisions in the Act that relate to permits, including the definition of “decision” in section 99, only apply to the aspects of an approval in principle that serve as a permit for a facility contemplated under section 47(6).

Turning to the facts in this case, the Board concluded that the amendments at stake were not concerned with a “facility” contemplated in section 47(6). Subsections 47(6)(a) through (c) indicate that such a facility must be covered by an existing remediation plan, whereas the contentious amendments would require a new or revised remediation plan to cover a new site. Therefore, the Amended AIP does not amend a portion of an approval in principle that serves as a permit for a facility described in section 47(6) of the Regulation. Thus, it does not amount to “amending a permit” under section 99(d) of the Act or “including a requirement or a condition in a permit” under section 99(e), and its issuance cannot be deemed an appealable decision under those provisions.

The Board then turned to the submissions made by Ocean Construction, which aimed to bring the Amended AIP within one of the other subsections of section 99. The Board found that the word “approval” in section 99 was not intended to include “approval in principle”, and the Amended AIP is neither “amending and approval within the meaning of section 99(d), nor “including a requirement or a condition in an approval” within section 99(e). The Board also found that, while section 53 of the Act and section 47 of the Regulation authorize a Director to impose or specify conditions or requirements when issuing an approval in principle, they do not authorize the addition of conditions or requirements after the approval in principle has been issued. Therefore, the Amended AIP cannot be characterized as “imposing a requirement” within the meaning of section 99(b) of the Act. In addition, the Board concluded that the Director had no statutory authority to amend the approval in principle after it had been issued.

Since the issuance of the Amended AIP does not fall within any of the categories set out in section 99, it is not a decision for the purposes of that provision and the Board has no jurisdiction over the appeal. The Board also noted that, in coming to this decision, it has also dealt with the merits of the appeal, that is, the question of the Director’s jurisdiction to unilaterally amend an existing approval in principle.

Accordingly, the appeal was dismissed for lack of jurisdiction.