Decision Date: August 9, 1999

Panel: Don Cummings

Keywords: Municipal Act s. 946.2; Waste Management Act ss.26.1, 27.6, 28; independent remediation

This was an appeal by Coast Tractor against the November 10, 1998 decision of the Regional Waste Manager (“RWM”) to refuse to issue Coast Tractor an Approval in Principle for an independent remediation plan (the “AIP”). Coast Tractor was seeking the AIP in to support its application to the City of Nanaimo for a development permit. Since 1994, Coast Tractor had been authorized to dispose of effluent from the washing of vehicles on its property. Woodwaste originating from a nearby sawmill was also present on the site.

The Municipal Act requires that a municipality cannot approve a development application until it receives a site profile from the applicant. Coast Tractor submitted a site profile to the city, which referred it to the RWM to determine if additional investigation of the site would be required. After reviewing the profile, the RWM requested that Coast Tractor undertake preliminary investigation of the site to identify conditions that may present environmental concerns.

Coast Tractor retained the services of an environmental consulting company to conduct a preliminary investigation. The consultant subsequently returned to the property and excavated contaminated soil for treatment in a bio-remediation cell on the site. The consultant then notified the RWM that the Property had been independently remediated. The RWM replied that independent remediation was not an option as the Property was already part of the government review process for site remediation, and that he was not satisfied that the Property had been properly remediated. The consultant requested a release from the government review process and asked the RWM to grant an AIP. The RWM refused. The consultant, on behalf of Coast Tractor, then appealed that decision.

The Panel found that Coast Tractor had embarked on the government process by submitting the site profile, and that it had done so without indicating that it would pursue independent remediation. In doing so, it became bound to follow that process to conclusion. The Panel found that independent remediation was a privilege and that the privilege must be requested at the beginning of the remediation process. Further, the Panel found that Coast Tractor’s remediation was not sufficient and that the RWM was justified in refraining from granting the AIP. The appeal was dismissed.