Decision Date: October 24, 2017

Panel:Alan Andison

Keywords: Environmental Management Act – ss. 53(1.1), 54, 64, 99; Contaminated Sites Regulation – ss. 47, 57, 63; contaminated site; remediation plan; approval in principle; certificate of compliance; protocol; jurisdiction; appealable decision; Unifor v. Rio Tinto Alcan Inc., 2017 BCCA 300

Gibsons Alliance of Business and Community Society and Marcia Timbres (the “Appellants”) appealed certain parts of a letter (the “July Letter”) issued by the Director, Environmental Management Act (the “Director”), Ministry of Environment and Climate Change Strategy. The July Letter was issued to The George Gibsons Development Ltd. (the “Developer”), with a copy sent to the Town of Gibsons, and pertained to the Developer’s proposed remediation plan for a contaminated site located in Gibsons, BC. In particular, the Appellants sought to appeal the Director’s statement in the July Letter that, after reviewing the Developer’s proposed remedial plan and schedule, the Ministry was “supportive of the plan and schedule for the investigation and remediation of high risk conditions at the site and affected off-site parcels”. The Director also referred to the proposed remediation plan and schedule as the “accepted remedial plan and schedule”.

After the appeal was filed, the Director submitted that the appealed statements in the July Letter did not constitute an appealable “decision” as defined in section 99 of the Environmental Management Act (the “Act”), and therefore, the appeal should be dismissed for lack of jurisdiction.

In response, the Appellants submitted that the appealed statements constituted an appealable “decision” because they were an “exercise of power” within the meaning of section 99(c) of the Act. Specifically, they argued that the July Letter constituted notice to the Town of Gibsons that the Director had accepted a notice of independent remediation, and also constituted an approval in principle of the remediation plan under section 53(1.1) of the Act.

First, the Board considered whether the appealed contents of the July Letter constituted notice to the Town of Gibsons that the Director had accepted a notice of independent remediation pursuant to the Act. The Board noted that in Unifor v. Rio Tinto Alcan Inc., the BC Court of Appeal held that the definition of appealable “decision” in section 99 of the Act is intended to enumerate “virtually all of the various types of substantive decisions” made under the Act. The Board found that although the July Letter was copied to the Town of Gibsons, section 54(2) of the Act only contemplates two types of “notice” that a person undertaking independent remediation must give to a director, and neither involves a director making a substantive decision. Rather, such notices are given to a director for information purposes only. Moreover, such notices do not pertain to remediation plans. Therefore, the Board rejected this basis for the appeal.

Next, the Board considered whether the appealed contents of the July Letter constituted an approval in principle of a remediation plan under section 53(1.1) of the Act. The Board found that two conditions in section 53(1.1) for the issuance of an approval in principle were not met in this case. Section 53(1.1) of the Act states that an approval in principle may be issued “On application by a responsible person”, which in this case would be the Developer. However, based on the evidence, the Board found that the Developer had not applied for an approval in principle. In addition, section 53(1.1) states that an approval in principle may be issued “in accordance with the regulations”; i.e., the Contaminated Sites Regulation. However, the proposed remediation plan in this case did not comply with subsections 63 (e) and (f) of that regulation. Given that two of the conditions in section 53(1.1) of the Act were not met, the Board found that the July Letter did not constitute an approval in principle of a remediation plan.

Finally, the Board considered whether the appealed contents of the July Letter constituted some other type of “decision” as defined in section 99 of the Act. Based on the evidence, the Board found that the Developer had submitted an application form to the Ministry requesting that the Director review the proposed remediation plan and schedule, as well as a summary of site conditions. The Board noted that under section 54(4) of the Act, a person carrying out independent remediation may request that a director “review the remediation in accordance with the regulations and any requirements imposed” by a director. One of the eventual outcomes of such a review may be the issuance of a certificate of compliance, and the proposed remediation plan stated that the Developer intended to apply for a certificate of compliance in the future. The evidence showed that the Director had previously notified the Developer that it needed to provide a remediation plan and schedule, and a summary of site conditions, in accordance with Protocol 12. Pursuant to section 64 of the Act, Protocol 12 established substantive and procedural requirements for classification and reporting with respect to high risk contaminated sites, and was enforceable by the Director. Based on the evidence and the language in the Act, the Board concluded that the Developer had requested that the Director “review the remediation” under section 54(4) of the Act. After reviewing the Developer’s proposed remediation plan and schedule, and the summary of site conditions, the Director made a substantive decision that the documents met the reporting requirements in Protocol 12. The Board found, therefore, that the appealed statements in the July Letter constituted “exercising a power” within the meaning of section 99(c) of the Act, and were appealable to the Board.

Accordingly, the Director’s application to dismiss the appeal was denied.