Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) DECISION NO EMA-007(a) In the matter of an appeal under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53. BETWEEN: BC Ltd. APPELLANT AND: Director, Environmental Management Act RESPONDENT BEFORE: DATE: APPEARING: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on June 29, 2010 For the Appellant: Wally Braul, Counsel For the Respondent: Dennis Doyle PRELIMINARY ISSUE OF JURISDICTION [1] BC Ltd. (the Appellant ) filed an appeal against a response by the Director, Environmental Management Act, Ministry of Environment, to the Appellant s application for a certificate of compliance ( COC ). [2] In a letter dated June 4, 2010, the Board requested written submissions from the parties on whether the Director s response constitutes an appealable decision as defined under section 99(c) of the Environmental Management Act (the Act ). In order for the Board to accept the appeal, the appealed matter must fall within one of the subsections set out in the definition of decision in section 99: only decisions that fall within one of those subsections may be appealed to the Board. [3] This preliminary question of jurisdiction was heard by way of written submissions. BACKGROUND [4] On May 18, 2007, the Appellant filed an application for a COC with the Director. The application pertains to remediation conducted at the Appellant s property located at 2495 Highway 97 South, Westbank, BC. Along with its

2 DECISION NO EMA-007(a) Page 2 application, the Appellant submitted a report prepared by an approved professional 1 under the Act, which recommended that a COC be issued for the site. [5] In its Notice of Appeal, the Appellant submits that the Director has advised the Appellant on numerous occasions that he will neither reject nor approve the COC application unless the Appellant makes a commitment to remediate certain property owned by the Appellant s neighbour (the Remediation Condition ). The Appellant submits that, between May 18, 2007 and May 25, 2010, it held numerous negotiations and discussions with the Director or other Ministry representatives over the Remediation Condition, and no agreement was reached. The Appellant submits that the situation has reached a stalemate, and the Director is unwilling to either approve or reject the Appellant s application. [6] Also in its Notice of Appeal, the Appellant submits that the Director has refused to formalize his requirement for the Remediation Condition in the form of an express condition in a COC, yet has maintained his position on the Remediation Condition in collateral communications. In that regard, the Appellant provided excerpts from several communications it received from the Director, his legal counsel, and other Ministry staff between November 17, 2006 and April 23, [7] Part of the April 23, 2010 communication, which was from the Director s counsel to the Appellant s counsel, is quoted in the Appellant s Notice of Appeal. It states, in part, as follows: I have been unable to find any communications on my file that would constitute a rejection of the recommendation for a CofC in this matter. My client has further confirmed there has been no rejection and no notice under [section] 49(8) [of the Contaminated Sites Regulation]. The Director s position remains that proper adjudication of this application requires confirmation that the entire extent of contamination has been dealt with as required under Protocol 6. In the circumstances the Director has indicated he is not prepared to reject the QP s recommendation as long as these information voids persist with respect to the current extent of the contamination. [8] The Appellant submits that there should be no difference as to whether the Director conveys his requirement for the Remediation Condition directly in a COC or in collateral communications. In either case, the Director is exercising a power under section 99(c) of the Act or imposing a requirement under section 99(b) of the Act. [9] The Director submits that no appeal lies to the Board in this case, because there has been no decision by the Director under Part 8, Division 2, of the Act. 1 Section 39(1) of the Act states that, for the purposes of Parts 4 and 5 of the Act, approved professional means a person who is named on a roster established under section 42(2).

3 DECISION NO EMA-007(a) Page 3 ISSUES [10] The only issue to be decided is whether the Director has made an appealable decision under Part 8, Division 2, of the Act. RELEVANT LEGISLATION [11] The Director s authority regarding certificates of compliance is set out under section 53 of the Act. Approvals in principle and certificates of compliance 53(1) For the purposes of exercising powers and performing duties under this section, a director may rely on any information the director considers sufficient for the purpose, including, but not limited to, a preliminary site investigation, a detailed site investigation, a risk assessment, a remediation plan or a summary of site condition. (3) A director, in accordance with the regulations, may issue a certificate of compliance with respect to remediation of a contaminated site if (a) the contaminated site has been remediated in accordance with (i) the numerical or risk based standards prescribed for the purposes of the definition of "contaminated site", (ii) any orders under this Act, (iii) any remediation plan approved by the director, and (iv) any requirements imposed by the director, (b) [Repealed ] (c) a plan has been prepared for the purposes of containing, controlling and monitoring any substances remaining on the site and, if required by the director, works have been installed to implement the plan, (d) any security in relation to the management of contamination, which security may include real and personal property in the amount and form and subject to the conditions specified by the director, has been provided in accordance with the minister's regulations, and (e) the responsible person, if required by the director in prescribed circumstances or for prescribed purposes, has prepared and provided to the director proof of registration of a restrictive covenant under section 219 of the Land Title Act acceptable to the director.

4 DECISION NO EMA-007(a) Page 4 (4) For the purpose of subsection (3) if a director has issued a certificate of compliance with respect to remediation of a site, the site is considered to have been a contaminated site at the time remediation of the site began, despite the absence of a determination under section 44 (1) [determination of contaminated sites]. (5) A director may withhold or rescind an approval in principle or a certificate of compliance if (a) conditions imposed on the approval or certificate are not complied with, or (b) any fees payable under this Part or the regulations are outstanding. (6) A director may issue an approval in principle or a certificate of compliance for a part of a contaminated site. [12] Part 8 of the Act sets out the appeal provisions, including section 100: Appeals to Environmental Appeal Board 100 (1) A person aggrieved by a decision of a director or a district director may appeal the decision to the appeal board in accordance with this Division. (2) For certainty, a decision under this Act of the Lieutenant Governor in Council or the minister is not appealable to the appeal board. [13] Part 8 also contains a definition of decision in section 99: Definition of decision 99 For the purpose of this Division, decision means (a) making an order, (b) imposing a requirement, (c) exercising a power except a power of delegation, (d) issuing, amending, renewing, suspending, refusing, cancelling or refusing to amend a permit, approval or operational certificate, (e) including a requirement or a condition in an order, permit, approval or operational certificate, (f) determining to impose an administrative penalty, and (g) determining that the terms and conditions of an agreement under section 115 (4) have not been performed.

5 DECISION NO EMA-007(a) Page 5 DISCUSSION AND ANALYSIS Whether the Director has made an appealable decision under Part 8, Division 2, of the Act. Parties submissions [14] The Appellant submits that the Director s response to the Appellant s application for a COC is either exercising a power under section 99(c) of the Act or imposing a requirement under section 99(b) of the Act. The Appellant submits that the Director or his representatives have informed the Appellant or its counsel that the Appellant must produce a commitment to remediate offsite and the Director would, absent that commitment, not approve the Appellant s application for a COC. The Appellant submits that there are many communications from the Director and his counsel, which are summarized in its Notice of Appeal, that point to an unequivocal refusal or rejection of the COC absent satisfaction of the Remediation Condition. [15] In addition, the Appellant submits that the Director s response in this case is not a failure or refusal to act, as he has responded by imposing the Remediation Condition. [16] In support of its submissions, the Appellant refers to a number of previous decisions of the Board, as well as the Court s decision in Imperial Oil Ltd. v. Ron Driedger, 2002 BCSC 219 (hereinafter Imperial Oil). [17] The Director submits that there is no evidence of a refusal or approval of the Appellant s application for a COC, and that only the types of decisions listed in section 99 of the Act may be appealed to the Board. The Director also submits that the Board has previously held that a failure or refusal to exercise a power is not a decision that can be appealed to the Board under the Act. The Director concludes that the appeal should be dismissed for lack of jurisdiction, and any remedy that the Appellant may have must be found elsewhere. [18] In support of his submissions, the Director refers to the Board s previous decision in Shell Products Canada Limited and Imperial Oil Limited v. Director, Environmental Management Act (Decision Nos EMA-013(a) and 014(a), June 11, 2007), [2007] B.C.E.A. No. 7 (Q.L.), (2007) C.E.L.R. (3d) 295. He also refers to the Court s decision in Imperial Oil. [19] In reply, the Appellant submits that the previous decisions of the Board and the BC Supreme Court cited by the Director are distinguishable from the present case. Panel s findings [20] As noted by the parties, the Board has had the opportunity to interpret section 99 of the Act, and its predecessor section 43 of the Waste Management Act ( WMA ), on a number of occasions, including but not limited to the following decisions: Canadian National Railway Company v. Regional Waste Manager (Appeal No WAS-025, May 24, 2002), [2002] B.C.E.A. No. 31 (Q.L.);

6 DECISION NO EMA-007(a) Page 6 Beazer East, Inc. v. Assistant Regional Waste Manager (Appeal No WAS-002(a), February 5, 2004), [2004] B.C.E.A. No. 7 (Q.L.); Houweling Nurseries Ltd. v. District Director for the Greater Vancouver Regional District (Appeal No WAS-025(a) and 2003-WAS-004(a), April 26, 2004), [2004] B.C.E.A. No. 11 (Q.L.); and Shell Products Canada Limited and Imperial Oil Limited v. Director, Environmental Management Act (Decision Nos EMA-013(a) and 014(a), June 11, 2007), [2007] B.C.E.A. No. 7 (Q.L.), (2007) C.E.L.R. (3d) 295. [21] In all of those cases, the Board concluded that the legislature sought to limit the types of decisions that are subject to a right of appeal under the Act (and previously the WMA), and that it chose to do so by carefully wording the definition of decision. In addition, the Board concluded that the subsections in the definition of decision are not intended to overlap; rather, they can be related back to certain specific statutory provisions. [22] The parties also cited the Court s decision in Imperial Oil. In that case, the Court considered whether withholding an approval in principle was an appealable decision as defined in section 43 of the WMA. The Deputy Director of Waste Management had advised Imperial Oil in a letter that he was willing to issue an approval in principle for a contaminated site concurrent with the acceptance of a Settlement Agreement between [Imperial] and the [owners of certain properties affected by contamination from a former gasoline and service station]. Imperial Oil argued that the Deputy Director withheld the approval in principle based on irrelevant considerations, and that his action did not constitute an appealable decision under section 43 of the WMA. The Deputy Director argued that he had made no decision, and therefore, there was no recourse for Imperial Oil either by way of appeal to the Board or by way of judicial review. Alternatively, the Deputy Director argued that he had refused the approval in principle, and his decision was not appealable to the Board. [23] The Court considered the definition of decision in section 43 of the WMA. The Court held as follows at paragraphs 49 and 50: The respondent has, in my view, clearly made a decision. This decision is not a refusal of the AIP, quite the contrary. I agree with the submissions of Imperial that what the respondent has done is that he has decided to issue the AIP, but that the AIP is being withheld until such time as he is informed by the Owners that a settlement has been reached with Imperial. This does not constitute the making of an order, nor does it constitute the issuance, amendment, renewal, suspension, refusal or cancellation of an approval within the contemplation of s. 43. It is clear that he has not included in an approval or permit a requirement or condition. The condition is outside the approval. There remains then the question of whether this decision falls within the scope of the imposition of a requirement or an exercise of a power pursuant to s. 43 (b) or (c) respectively. I have concluded that it does

7 DECISION NO EMA-007(a) Page 7 not. I agree with the analysis of the Board in McPhee, supra, that the meaning of the acts referred to in s. 43 is to be found in the provisions of the Act. The powers and requirements referred to are the powers and requirements specified in the Act. I was not referred to, nor could I find on review, a provision of the Act which contemplated or authorized the action taken in this case by the respondent. [underlining added] [24] Based on that reasoning, the Court concluded that the Deputy Director s decision to withhold the AIP could not be appealed to the Board. Rather, it was a decision which was subject to judicial review under the Judicial Review Procedure Act. [25] The principles from the Board s previous decisions and the Court s decision in Imperial Oil regarding the interpretation of the definition of decision are equally applicable to the present case. This Panel agrees that the meaning of the acts (or refusals to act) referred to in section 99 must be found in the provisions of the Act. [26] However, there is a critical difference between the action of the Deputy Director in the context of the WMA in Imperial Oil, and the action of the Director in the context of the Act in the present case. In Imperial Oil, the provisions of the WMA did not expressly authorize the Deputy Director to withhold an approval in principle, or impose a requirement outside of an approval or a permit. In contrast, section 53(5) of the Act expressly authorizes the Director to withhold a COC in certain circumstances. Furthermore, there may be implied authority for a director to impose a requirement as a precondition to issuing a COC, because a director has the discretion under section 53(3)(a)(iv) of the Act to issue a COC if the contaminated site has been remediated in accordance with any requirements imposed by the director. [27] In the present case, the Appellant has provided excerpts of communications from the Director, other Ministry representatives, or the Director s counsel, which indicate that the Director has not rejected the Appellant s application, and is not prepared to reject it until he receives confirmation that the entire extent of contamination has been dealt with as required by Protocol 6 (as stated in the April 23, 2010 communication from the Director s counsel). The Panel finds that this amounts to either imposing a requirement as referred to in section 53(3)(a)(iv) of the Act, or withholding a certificate of compliance as referred to in section 53(5) of the Act. [28] If the Director s response is imposing a requirement as referred to in section 53(3)(a)(iv) of the Act, then it fits within section 99(b) of the Act. Alternatively, if he is withholding a certificate of compliance as referred to in section 53(5) of the Act, it fits within section 99(c) of the Act. In the latter case, the Panel notes that section 53(1) of the Act refers to actions taken under section 53 as exercising powers and performing duties [underlining added], which supports the proposition that withholding a COC is exercising a power within the meaning of section 99(c) of the Act. [29] However, the Panel cautions that these findings regarding the nature of the Director s response in this case are made only for the limited purposes of this

8 DECISION NO EMA-007(a) Page 8 preliminary proceeding. The Panel is mindful that section 53(5) of the Act limits the circumstances whereby a director may withhold a COC, and that the Director s discretion under section 53(3)(a)(iv) must be exercised in accordance with the regulations. In its Notice of Appeal, the Appellant has challenged whether the Director had any statutory authority to withhold the COC or impose the Remediation Condition. The Panel makes no findings on whether the Director had jurisdiction to withhold the COC or impose the Remediation Condition in the circumstances of this case, because those questions go to the merits of the appeal and cannot properly be decided in the context of this preliminary proceeding. DECISION [30] In making this decision, the Panel has carefully considered all of the submissions and arguments provided, whether or not specifically reiterated herein. [31] The Panel finds that the Director has either imposed a requirement within the meaning of section 99(b) of the Act, or he exercised a power within the meaning of section 99(c) of the Act. Accordingly, the Board has jurisdiction over the appeal, and the Board office will be in contact with the parties to set the matter down for a hearing. Alan Andison Alan Andison, Chair Environmental Appeal Board August 25, 2010