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Contaminated Sites: EAB Directs Ministry of Environment to Issue Certificate of Compliance

13 octobre 2011

( Disponible en anglais seulement )

In a recent decision, the BC Environmental Appeal Board directed the Ministry of Environment to issue a Certificate of Compliance (“COC”) for a property that had been remediated and where the Ministry of Environment had refused to issue a COC because of the potential that the contamination had migrated to nearby properties.  That is, the property owner did not have to investigate and remediate the nearby properties that may have been contaminated in order to obtain a COC.

Background

This case has a long history.  The property was a gas station for many years.  The Ministry issued a pollution abatement order in 1991 and required a preliminary site investigation to determine whether the area where the gas pump islands had been located was contaminated.

In 2002, the property owner carried out independent remediation and then applied to the Ministry for a COC.  The professional who provided the recommendation that a COC be issued provided assurance that the property would not be re-contaminated from the presence of contaminants remaining on the neighbouring properties.

The application for the COC was made in 2007.  The Ministry responded with requests for further information, particularly relating to the neighbouring properties and the extent of contamination.  An appeal to the EAB was filed in 2010 after many years and the COC had still not been issued.

The EAB Decision on Those Lands

A preliminary issue tackled by the EAB Panel was whether a “Protocol” is “legally binding” and has the same effect as a “regulation”. The Ministry argued that that a Protocol is a regulation and, therefore, legally binding.  However, the Panel found that a Protocol was not legally binding, but that a Director of the Ministry has the discretion to require compliance with a Protocol.

In relation to the primary issue, the Panel found that if a COC application is for part of a site and there is a risk that contamination remaining in adjacent areas may migrate to the property, the issue of preventing recontamination of the property is a very relevant consideration.  In this case, the Panel found that the Ministry may issue a COC for part of a contaminated site and that the absence of information about the extent of any contamination remaining on the neighbouring properties is not a basis for rejecting a COC application. Further, the Panel found that it was unreasonable to decide that further information about alleged contamination in neighbouring properties is “required” or relevant, as long as a professional assurance has been given regarding measures taken to prevent re-contamination, as required in Note 4, Protocol 6.  In this case, the professional gave the assurance.

Although the Panel referred the matter back to the Ministry with directions to issue a COC for the property, the Panel also went on to say that it shared the Ministry’s concern about the need for further investigation and possible remediation of the neighbouring properties.  The Panel found that the Act provided the Ministry with a broad range of powers to address those concerns, including the discretion to issue a site investigation order under section 41 of the Act, to determine an area to be a contaminated site pursuant to section 44 of the Act, and to issue a remediation order under section 48 of the Act.

The Panel also considered what options the Ministry would have if the property became re-contaminated from off-site migration after a COC had already been issued for property.  The Panel found that, under section 60 of the Act, the Director retains the right to exercise any power under Part 4 of the Act, if certain information becomes available or activities occur on a site that may change its condition or use.

Lessons Learned

  1. “Protocols” are not “regulations” and are not legally binding.
  2. The Ministry cannot refuse to issue a COC on the basis that migration of contamination to neighbouring properties has not been dealt with (if an assurance can be provided that there will not be re-contamination of the COC property).
  3. The Ministry has various powers to deal with migrating contamination.

 

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