Decision Date: March 29, 2000

Panel: Toby Vigod, Dr. Robert Cameron, Marilyn Kansky

Keywords: Waste Management Act – ss. 26.5, 26.6, 27, 27.1, 28.7; Contaminated Sites Regulation – ss. 28, 35(5); definitions of “responsible person”, “operator”, “owner” and “producer”; “environmental consultant” exemption; “contributed most substantially”; “innocent acquisition” exemption; abuse of process; corporate structure; parent company; subsidiary; amalgamation

These were two appeals, by Beazer East, Inc. (“Beazer”), and Atlantic Industries Ltd. (“Atlantic”), against a decision by the Assistant Regional Waste Manager to issue a Remediation Order in relation to the property at 8335 Meadow Avenue, Burnaby, British Columbia. The property was contaminated with creosote as a result of a wood treatment operation that took place on the site between 1931 and 1982. Beazer and Atlantic each sought an order rescinding the Order against them. In the alternative, Atlantic sought a stay of the Order.

The Panel considered the meanings of “owner”, “operator” and “producer” as set out in the Waste Management Act and found that Beazer, as the parent of the company that leased and operated on the site when the contamination took place, met the definitions of “owner” and “operator.” Thus, Beazer was a “responsible person” pursuant to sections 26(1) and 26.5(1)(b) of the Act. However, the Panel found that Beazer was not a “responsible person” pursuant to subsection 26.5(1)(c) of the Act, as it did not meet the definition of “producer”. The Panel found that Beazer was not entitled to the “environmental consultant” exemption under the Act, and that Beazer contributed “most substantially” to the contamination of the site. Therefore, the Panel found that the Assistant Manager properly exercised his discretion in naming Beazer to the Order.

With respect to Atlantic, the Panel found that it also was a “responsible person” as it also met the definitions of “owner” and “operator” in sections 26(1) and 26.5(1)(b) of the Act, as a result of Atlantic’s amalgamation with the company that leased and operated on the site when the contamination took place. Further, the Panel found that there were no grounds for relieving Atlantic from liability. The Panel found that the “innocent acquisition” exemption did not apply to Atlantic, and that Atlantic should not be exempt on the basis of a private agreement. Further, the Panel found that the Assistant Manager properly exercised his discretion in naming Atlantic to the Order, and that it was not an abuse of process for the Assistant Manager to have named Atlantic.

With respect to Atlantic’s request for a stay of the Order, the Panel found that the Board’s jurisdiction is limited to the granting of a stay pending a decision on the merits of an appeal. Therefore, the Panel found that the Board had no jurisdiction to issue a stay once it has made its determination on the issues before it in the appeals.

Accordingly, the Panel upheld the Remediation Order, with the deletion of the reference to subsection 26.5(1)(c) in relation to Beazer. The appeals were dismissed.