Decision Date: November 10, 2011

Panel: Alan Andison

Keywords:  Environmental Management Act – ss. 3, 99(b), 100; Contaminated Sites Regulation – s. 12; preliminary decision; appealable decision; delegated authority; drinking water use standards; water use determination

BCR Properties Ltd. (“BCR”) appealed a determination issued by Ms. Evans, Manager, Risk Assessment and Remediation, Ministry of Environment (the “Ministry”), in response to BCR’s application for a water use determination in relation to a former rail yard (the “Site”) located in Squamish, BC.  Before the Board accepted the appeal, it requested submissions from the parties regarding whether the Manager’s response constituted an appealable “decision” of a director under sections 99 and 100 of the Environmental Management Act (the “Act”).  For the Board to accept the appeal, the appealed matter had to fall within the definition of “decision” in section 99, and it had to be a decision of a “director or district director” under section 100(1).

Under section 12(4) of the Contaminated Sites Regulation (the “Regulation”), a director may specify the surface water uses or groundwater uses that apply, at any given time, to a contaminated site.  Schedule 6 of the Regulation contains tables specifying the permissible concentrations of certain substances under four water uses, one of which is drinking water use.  A Ministry document titled Technical Guidance 6 on Contaminated Sites (“TG6”) provides guidance on filing an application for a director to make a water use determination.

In May 2011, BCR applied for a determination regarding the applicability of the drinking water use standards to the Site.  BCR’s application was prepared by Piteau Associates, and set out a rationale as to why the drinking water use standards should not apply to the Site.  BCR had spent seven years and $11 million remediating the Site.

In August 2011, Ms. Evans issued a letter indicating that, based on the rationale presented in BCR’s application, the drinking water use standards apply to the Site.  The letter was signed by Ms. Evans in her capacity as Manager, Risk Assessment and Remediation.

BCR sought to appeal on the basis that the Manager was acting as a director when she issued the letter, and the letter constituted “imposing a requirement” under section 99(b) of the Act.

The Manager submitted that, at all material times, Ms. Evans was not properly delegated to act as a director, and the letter does not constitute “imposing a requirement” under section 99(b).

The Board found that section 3 of the Act authorizes a director to delegate his or her powers to any person.  The Board reviewed the delegation document, signed by a director in November 2007, which authorized Ms. Evans to act as a director’s delegate.  The Board found that the terms and conditions of the delegation document indicated that Ms. Evans was delegated to act as a director as long as she remained within in her “current capacity within government”.  The document indicated that, at that time, her capacity in government was a Senior Contaminated Sites Officer, Land Remediation.  There was no evidence that the delegation document had been amended, or an updated delegation document had been signed, to reflect the change in Ms. Evans capacity in government.  Consequently, the Board concluded that the Manager was not acting in accordance with the terms and conditions of the delegation document when she signed the letter to BCR, and therefore, she was not acting as a director’s delegate when she issued the letter.

On the issue of whether the letter constituted “imposing a requirement” under section 99(b) of the Act, the Board reviewed section 12 of the Regulation and found that section 12(4) authorizes a director to specify the water use that applies to a contaminated site, and this affects the nature of the remediation required before a particular site may be eligible for a certificate of compliance and may no longer be considered a contaminated site.  The Board also found that specifying the applicable water use at a site constitutes “imposing a requirement” within the meaning of section 99(b) of the Act.

The Board then reviewed the contents of the Manager’s letter, and found that the letter expressly rejected BCR’s application, and indicates that the rationale provided in BCR’s application is insufficient to justify an exemption from the drinking water use standards.  There was no indication that the Manager’s findings were preliminary in nature.  Moreover, the Ministry had issued an invoice for $1980.00 to BCR in relation to the Manager’s letter, and the Board held that this supported the conclusion that the Manager was purporting to specify the water use that applied to the Site pursuant to section 12 of the Regulation.  The fact that the Manager was not acting under proper delegated authority at the time did not change the nature of the decision set out in the letter.

Given that the Manager’s letter would have been an appealable decision if the Manager had been acting as a director’s delegate when she signed the letter, and that the Ministry was still under an obligation to make a proper water use determination in relation to the Site, the Board sent the matter back to the Ministry with the directions that a director should make a determination under section 12(4) of the Regulation, as requested in BCR’s application, in a timely manner.