Decision Date: July 12, 2007

Panel: David Searle, C.M., Q.C.

Keywords: Environmental Management Act – s. 81; pollution prevention order; Hazardous Waste Regulation; hazardous waste

Mr. Ilnicki works in Abbotsford, BC, as an electrician and heavy duty equipment mechanic, and conducts a meat tray washing business and a home restoration business. In all of those activities, he uses various chemicals. In 2006, the Director, Environmental Management Act (the “Director”) issued an Information Order in relation to the substances found on the property on which those activities were conducted. Mr. Ilnicki appealed the decision to the Board, and the Board dismissed the appeal and confirmed the Information Order (Ed Ilnicki v. Director, Environmental Management Act et al. – Decision No. 2006-EMA-004(a), November 21, 2006). In August 2006, the Director issued a Pollution Prevention Order (the “Order”), which is the subject of this appeal. The Order requires Mr. Ilnicki and the third parties to comply with five requirements, including the requirement to retain an independent consultant to conduct an inventory and characterization of the hazardous materials stored on the property. Mr. Ilnicki appealed the Order, and requested that the Board reverse the Order.

The Board considered four issues in this appeal. First, the Board found that, based upon the inspections and observations made by Ministry staff, the Director had reasonable grounds to issue the Order.

Second, the Board determined that the requirement in the Order to obtain independent verification of the nature of the substances found on the property was also justified, based on the chemical analysis performed by Environment Canada on samples taken from some of the containers that Mr. Ilnicki was storing.

Third, the Board considered whether the materials in question could be the subject of a Pollution Prevention Order even if, as argued by Mr. Ilnicki, they cannot be properly characterized as “waste” or “hazardous waste”. The Board noted that section 81 of the Environmental Management Act (the “Act”) merely requires that the materials be a substance capable of causing pollution, if released. Since the materials were found likely to be released given the manner in which they are used and stored, the Board determined that the Order was justified. Moreover, the Board noted that the acetone found on the property had been used and was “no longer used for their original purpose”, and, therefore, falls within the definition of “hazardous waste” under the Act.

Finally, the Board rejected Mr. Ilnicki’s argument that his record of “no significant spills” should exempt him from the application of the Hazardous Waste Regulation, and confirmed that the public policy purpose behind the Regulation and the Order is prevention.

Accordingly, the Order was confirmed with modifications relating to compliance deadlines and the new location of Mr. Ilnicki’s operations. The appeal was dismissed.