Decision Date: July 27, 1989

Panel: H.D.C. Hunter, R.F. Patterson, M. Ryan

Both appellants appealed an order of the respondent to test for oil-based PCP’s and to prepare clean up plans. B.C. Rail owned land near Fort St. John which it leased to Domtar. Domtar had originally operated a wood processing plant and a wood preserving plant. There had been an explosion and fire at the wood processing plant causing 5000 gals of PCP’s to escape though they were contained by a dike. Domtar then transferred these PCPs to an evaporation pond. Domtar subsequently transferred the plants including the pond to West Fraser. West Fraser, with the consent but not on the order of the Pollution Control Branch, drained the evaporation pond, filled it with wood chips, and covered it with clay to prevent seepage. West Fraser subsequently terminated their lease. Louisiana Pacific subsequently leased the property and built a new plant on the site. During excavations, the pond was dug out from the side where it was found that PCPs were seeping sideways from the pond. The Pollution Branch then issued the order.

West Fraser argued that a section 22 order did not apply to them, and that they had no legal access to the site. The Board found although section 22 did have retroactive application, it applied only to the party that had possession, charge, or control of the PCPs. It found at the material time, that of the explosion, West Fraser did not come under these criteria in section 22 and therefore the order was unfair against them. It did however uphold the order for Domtar.