Decision Date: September 15, 2011

Panel: Alan Andison

Keywords:  Environmental Management Act – ss. 53, 54, 56(2), 60, 64; Contaminated Sites Regulation – ss. 49(2), 52(1), 60.1; certificate of compliance; contaminated site; remediation; protocol; notice

455161 BC Ltd. (the “Appellant”) appealed a letter issued by the Director, Environmental Management Act, Ministry of Environment, in response to the Appellant’s application for a certificate of compliance (“Certificate”) under section 53 of the Environmental Management Act (the “Act”).  The Appellant applied for a Certificate in relation to remediation conducted at the Appellant’s property in Westbank, BC.

The Appellant’s property was the site of a gas station which ceased operating in or about 1994.  Remediation was conducted on the Appellant’s property in 2002, and again in 2006, to remove contaminants associated with gasoline.  In May 2007, the Appellant applied for a Certificate for the Property.  The application included a letter and report prepared by an approved professional under the Act.  He advised that the Appellant’s property had been remediated to appropriate standards, and he recommended that a Certificate be issued for the property.  The approved professional acknowledged that there was evidence of contaminant migration to adjacent land, but he concluded that mitigation measures on the Appellant’s property consisting of a plastic curtain wall had been implemented to protect against recontamination of the Appellant’s property.

Between May 2007 and May 2010, the Appellant and Ministry representatives held negotiations over the matter, but no agreement was reached.  In May 2010, the Appellant appealed to the Board, based on an April 2010 letter indicating that the Director would not reject or approve the application until further information was provided about the extent of the contamination that may exist on lands adjacent to the Appellant’s property.

The Board considered the Director’s powers and discretion in relation to applications for Certificates, as set out in the applicable provisions of the Act, the Contaminated Sites Regulation (the “Regulation”), and the July 28, 2004 version of the Director’s Protocol 6, which was in effect when the Appellant submitted its application.  The Board found that Protocol 6 is not a regulation but the Director has the discretion to require compliance with Protocol 6, in terms of the information to be submitted with applications for Certificates.  The version of Protocol 6 in effect at the relevant time did not require that applications for Certificates address all lands affected by the contamination.  It also stated that applications for a Certificate for part of a contaminated site are eligible if the application includes an approved professional’s statement of assurance confirming that measures necessary to prevent recontamination of the property have been put in place.  The Board found that these aspects of Protocol 6 were consistent with section 53(6) of the Act, which authorizes the Director to issue a Certificate for part of a contaminated site, and section 56(2) of the Act, which requires the Director to consider whether permanent solutions have been given preference to the maximum extent possible when issuing a Certificate.

The Board considered the approved professional’s recommendation and assurance statements that were submitted with the Appellant’s application, and found that the statements met the requirements of Protocol 6 and the Act in relation to Certificate applications for part of a contaminated site.  The Board held that the existing information about the adjacent lands was inconclusive as to the levels of any contaminants or whether the Appellant’s property was the source of any contaminants on those lands.  However, the Board found that the lack of information about the adjacent lands was not a proper basis for not considering the application in respect of the Appellant’s property, as part of a site, given the recommendation and assurance that were provided by the approved professional.  The Board also found that it was unreasonable for the Director to refuse to consider the application based on a lack of information about compliance with remediation standards that did not exist when the application was filed, or based on speculation that contaminants may have migrated to the Appellant’s property, after the application was filed, from a different potential source of contaminants on another property. 
The Board also considered that the Director has a broad range of statutory powers to address the need to investigate and possibly remediate the adjacent lands, and he retains the right to exercise his statutory powers in relation to contaminated sites, even if a Certificate has been issued, if certain additional information becomes available or if activities occur on a site.

For all of those reasons, the Board referred the matter back to the Director with directions to issue a Certificate for the Property as part of contaminated site, subject to the Appellant providing notice, as required under section 60.1 of the Regulation, to the adjacent property owners regarding the potential migration of contamination from the Appellant’s property to those properties.

The appeal was allowed.