Decision Date: April 22, 2016

Panel: Alan Andison

Keywords: Environmental Management Act – s. 100(1); certificate of compliance; contaminated site; person aggrieved; standing; preliminary decision

Suncor Energy Inc. (“Suncor”) challenged the City of Burnaby’s standing to appeal a certificate of compliance issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment, in relation to land owned by Suncor in Burnaby, BC.

Suncor’s land was adjacent to land owned by the City. In 1995, both Suncor’s land and the City’s land were found to be contaminated with petroleum hydrocarbons that had originated on Suncor’s land. From 1996 to 2005, Suncor voluntarily remediated both properties to risk-based standards.

From 2008 to 2015, Suncor’s environmental consultant conducted additional investigations of both properties. Suncor’s consultant identified volatile organic compounds in the deep groundwater on both properties, and concluded that these compounds had likely originated from another site, and not from Suncor’s land. Suncor did not delineate or remediate the volatile organic compounds. Subsequently, Suncor applied for certificates of compliance for both properties.

In December 2015, the Director issued certificates of compliance for both Suncor’s land the City’s land pursuant to section 53 of the Environmental Management Act (the “Act”).

In January 2016, the City appealed both certificates of compliance. Among other things, the City submitted that the two properties were one contaminated site, the two certificates were interrelated, there was insufficient evidence to support a conclusion about where the volatile organic compound contamination had originated, and the Director ought to have required Suncor to delineate and remediate all contamination that was sourced from Suncor’s land.

Before the appeals were heard, Suncor applied to the Board to have the City’s appeal of the certificate issued for Suncor’s land dismissed, on the grounds that the City was not a “person aggrieved” by the issuance of that certificate within the meaning of section 100(1) of the Act.

The Board applied the test for standing as a “person aggrieved” that it had applied in previous cases, which was confirmed in Gagne v. Sharpe, 2014 BCSC 2077. Specifically, the Board considered whether the City had provided sufficient evidence to establish, on a prima facie basis, that the certificate for Suncor’s land prejudicially affects the City’s interests such that it is a “person aggrieved” under section 100(1) of the Act.

The Board found that the City had not demonstrated, on a prima facie basis, that the issuance of the certificate for Suncor’s land prejudiced the City’s interests. The Board found that the City’s concerns were only relevant to its appeal against the certificate for the City’s land. In its appeal against that certificate, the City could still present evidence and arguments regarding whether there were flaws in the investigation, delineation and remediation of Suncor’s land. Furthermore, if contaminants on the City’s land were not addressed by Suncor’s remediation activities, Suncor may be subject to further regulatory action by the Director. There was no evidence that the issuance of the certificate for Suncor’s land prejudicially affected the City’s interests.

Accordingly, the Board dismissed the City’s appeal against the certificate for Suncor’s land.