Decision Date: May 31, 2012

Panel: Alan Andison

Keywords: Environmental Management Act – s. 94; preliminary decision; party status; contaminated site; remediation; certificate of compliance; land owner; Turnagain Holdings Ltd. v. British Columbia (Environmental Appeal Board), 2001 BCSC 795

Burquitlam Building Limited and Morguard Real Estate Investment Trust (collectively, “Morguard”) and Canada Safeway Ltd. (“Safeway”) own adjacent parcels of land in Coquitlam, BC. Morguard’s land (the “Morguard Site”) and part of Safeway’s land (the “Management Area”) were contaminated by tetrachloroethylene (also known as perchloroethylene or PCE) from a dry cleaning operation previously located on Morguard’s land.

After conducting remediation on the Morguard Site and the Management Area, Morguard applied to the Director, Environmental Management Act (the “Director”), Ministry of Environment, for separate certificates of compliance in relation to the remediation of the Morguard Site and the Management Area. Morguard sought a certificate of compliance confirming that the Morguard Site had been remediated in accordance with the numerical standards in the Contaminated Sites Regulation (“Regulation”), and that the Management Area had been remediated in accordance with the risk-based standards in the Regulation. Subsequently, Safeway advised the Director that it objected to the issuance of the requested certificates, because Safeway’s environmental consultant had discovered PCE contamination in excess of certain regulatory standards outside and down gradient from the Management Area. Based on the data from Safeway’s environmental consultant, the Director concluded that Morguard’s certificate applications did not meet the requirements of the Regulation, and the Director refused to issue a certificate for the Morguard Site or the Management Area.

Morguard appealed the Director’s decision to the Board. Morguard requested that the Board order the Director to issue the requested certificates, or alternatively, identify the deficiencies in Morguard’s applications and provide Morguard with an opportunity to remedy those deficiencies before rejecting Morguard’s applications.

The Board offered Third Party status to Safeway, which Safeway accepted. This meant that Safeway would have full participatory rights in the appeal process, including the right to present evidence, call witnesses, cross-examine the other parties’ witnesses, and make submissions.

Morguard filed an application requesting that the Board remove Safeway as a Third Party, or alternatively, limit Safeway’s participation in the appeal. Morguard submitted that Safeway would be of no assistance in the appeal, and its participation would result in delay and the duplication of evidence and submissions.

Safeway and the Director opposed Morguard’s application.

In determining whether to grant Morguard’s application, the Board applied the test set out in North East Aboriginal Trappers Society v. Regional Wildlife Manager (Appeal no. 2001-WIL-016(a), issued October 5, 2001)[“NEAT”]. That test, which has been applied by the Board in previous cases, consists of two parts:

1. Whether the potential party has a valid interest in the appeal; and
2. Whether the potential party can be of assistance in the appeal, including whether it has relevant evidence to present, its expertise, whether there is any potential for delay or duplication as a result of its participation, and whether it has a unique perspective.

Morguard acknowledged that Safeway met the first part of the test, but it argued that Safeway did not meet the second part of the test. Consequently, the Board’s analysis focused on the second part of the test.

The Board found that it has broad discretion under section 94 of the Environmental Management Act (“Act”) to determine whether a person should be allowed to participate in an appeal, and to determine the extent of that participation. In regard to the second part of the NEAT test, the Board found that Safeway would be of assistance in the appeal. Specifically, the Board held that Safeway had relevant technical evidence to present, and Safeway was in a better position than the Director to defend the accuracy or veracity of that evidence. The Board also found that Safeway has a unique perspective, as the owner of land that was contaminated by migration from Morguard’s property, which is different from the perspectives of Morguard or the Director. Further, the Board found that Safeway’s participation would not lead to undue delay or the duplication of evidence or submissions, and would not expand the scope of the appeal. Safeway intended to present evidence and submissions that are relevant to whether Morguard’s certificate applications meet the regulatory requirements, and the potential impacts of granting the certificates on Safeway’s costs to remediate its own property and its ability to recover remediation costs from Morguard under the Act.

Finally, the Board considered the BC Supreme Court’s decision in Turnagain Holdings Ltd. v. British Columbia (Environmental Appeal Board), 2001 BCSC 795, and concluded that Safeway should have full Third Party status not only because it met the requirements of the test set out in NEAT, but also because its interests as a land owner may be directly and seriously affected by the outcome of the appeal, given the remedies sought by Morguard.

Accordingly, the application to remove Safeway as a Third Party or limit its participation in the appeal was denied.