Decision Date: December 7, 2018

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 53(3), 56; Contaminated Sites Regulation – ss. 49(2), 59(2); certificate of compliance; contaminated site; detailed site investigation report; expert evidence; solvents; petroleum hydrocarbons

The City of Burnaby appealed a certificate of compliance (the “Certificate”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment, in relation to certain City-owned road right-of-ways in Burnaby, BC. The City’s land is adjacent to land owned by Suncor Energy Inc. (“Suncor”), on which Suncor’s corporate predecessors operated a retail fuel and automotive service station for several decades.

In 1995, both Suncor’s land and the City’s land were found to be contaminated with petroleum hydrocarbons that originated on Suncor’s land. From 1996 to 2005, Suncor voluntarily remediated its land. First, Suncor excavated the top two to four metres of soil on portions of its land where petroleum hydrocarbon contamination was identified. Then, Suncor installed a system to recover vapour and groundwater on its land, using recovery wells at various depths and locations to reduce the remaining contamination.

From 2008 to 2013, Suncor conducted additional investigations on its land and the City’s land. Suncor identified volatile organic compounds (“VOCs”) in the deep groundwater on both properties, but concluded that these contaminants had likely originated from solvents that migrated from another site, and not from Suncor’s land. Consequently, Suncor concluded that it was not responsible for delineating or remediating the VOC contamination. Suncor also concluded that the remaining petroleum hydrocarbon contaminants did not pose an unacceptable risk to human health or the environment if certain precautions were in place. In 2015, Suncor applied for certificates of compliance for its land and the City’s land, based on its risk-based approach to the remediation.

In December 2015, the Director issued certificates of compliance for Suncor’s land the City’s land, pursuant to section 53 of the Environmental Management Act (the “Act”). The Certificate for the City’s land confirmed that Suncor had remediated the petroleum hydrocarbon contamination to risk-based standards, and it imposed certain conditions to manage those risks, but there was no mention of the VOC contamination. The risk-management conditions included requirements that the City’s land remain as roadways, no drinking water wells may be installed, and a worker health and safety plan must be implemented to address exposure to petroleum hydrocarbons in soil vapours if a trench is excavated deeper than 3.6 metres below ground surface.

The City appealed both certificates of compliance. The appeal against the certificate of compliance for Suncor’s land was dismissed based on a lack of jurisdiction (Decision No. 2016-EMA-064(a), April 22, 2016).

In its appeal against the Certificate issued for the City’s lands, the City submitted that the detailed site investigation report (the “DSI Report”) that Suncor had relied on in applying for the Certificate was deficient and did not meet the requirements of the Act or the Contaminated Sites Regulation (the “Regulation”). In particular, the City argued that the VOC contamination on the City’s land originated from spills or improper disposal of solvents used in the automotive repair shop on Suncor’s land. In addition, the City argued that Suncor had not adequately delineated or remediated some of the petroleum hydrocarbon contaminants on the City’s land. The City requested that the Board order Suncor to address the deficiencies before issuing a revised Certificate for the City’s land.

The parties provided the Board with a great deal of evidence about the hydrogeological conditions on Suncor’s land and the City’s land, and the directions in which VOC contaminants may have migrated from possible historic sources, and Suncor’s investigation and remediation of certain petroleum hydrocarbons on the City’s land. The technical evidence focused on the likely direction of groundwater flow at various depths and locations, and the concentrations of particular contaminants at various depths and locations during the course of the investigation and remediation process. The parties presented expert evidence on those matters, some of which was conflicting. The fact that Suncor did not investigate the VOC contaminants until after Suncor’s land was remediated meant that there was a significant gap in the information available for determining the likely historic source(s) of the VOC contamination.

The Board found that there were deficiencies and gaps in some key aspects of the DSI Report with respect to the likely source and direction of migration of the VOC contamination on the City Lands, which were not entirely resolved by the parties’ evidence. The Board directed the Director to require Suncor to address the deficiencies in the DSI Report regarding the possible source and direction of migration of the VOC contamination on the City’s land.

However, the Board found that Suncor’s investigation of VOC’s in soil vapours was adequate for the purposes of seeking a risk-based certificate of compliance for the City’s land. The Board held that even if it is later determined, based on further information, that Suncor’s land was a source of VOC contamination on the City’s land, any risk to human health or the environment arising from VOCs in soil vapours on the City’s land appeared to be low.

With respect to the remaining petroleum hydrocarbon contaminants on the City’s land, the Board found that the DSI Report met the requirements of section 53(3) of the Act, and sections 49(2) and 59(2) of the Regulation, and Suncor had complied with the requirements imposed by the Director. The Board also found that the requirements of section 56 of the Act were met with respect to the risk-based remediation of petroleum hydrocarbon contaminants on the City’s lands, in that permanent solutions were achieved for these contaminants to the maximum extent practicable.

Accordingly, the Board sent the matter back to the Director with directions. The appeal was allowed, in part.