An appeal due to come before the Environmental Appeal Board (the
"Board") may address questions about the intersection
between the provincial Ministry of Environment (the
"Ministry") and municipalities relating to the standards
to be applied to remediation of contaminated land.
In October 2016, the City of Burnaby is appealing the
Ministry's decision to issue a Certificate of Compliance to
Suncor Energy Inc. in respect of lands in Burnaby which include
portions of two roads owned by the City. The Certificate of
Compliance (issued in December 2015 under the Environmental Management Act) confirms
that the lands have been remediated to the required standard using,
among others, a risk-based approach.
A risk-based approach to remediation is generally more
economically efficient and less invasive than a numerical approach.
It mandates a number of risk controls which must be implemented by
the responsible person to prevent the risk of harm to the public,
instead of requiring the responsible person(s) to remediate the
land to specific numerical standards.
Section 56 of the Environmental Management
Act says that a person conducting remediation must give
preference to a remediation method which provides a permanent
solution to the maximum extent practicable, taking into account,
among other things, any potential adverse effects on human health
or the environment and risks associated with the different
remediation options. This is not to say that a risk-based approach
does not strictly afford the relevant mandate as remediation costs
associated with alternative remediation options, economic benefits,
costs and effects and technical feasibility are also relevant
factors. However, there still often exists a tension between
proponents of a risk based or a numerical based method.
The authority to issue Certificates of Compliance lies with the
Provincial Ministry. However, as a matter of practicality, it is
typically the municipality which the landowner has to deal with in
terms of other land usage issues.
An example of this tension is Imperial Oil Ltd. v. Vancouver (City)
2005 BCSC 387, affirmed 2005 BCCA 402. The City of Vancouver had
refused to issue Imperial Oil a development permit unless Imperial
Oil entered into an agreement to remediate nearby City-owned
streets in relation to hydrocarbons which had migrated from
Imperial Oil's land. Imperial Oil had remediated to the extent
required by the Ministry: the City attempted to use the development
permit process to require further remediation. Ultimately, the B.C.
Court of Appeal held that the City did not have power to impose
conditions relating to off-site matters and that issues of
environmental contamination were for the Ministry. That case,
however, depended on the court's interpretation of the
Vancouver Charter and so the issue is not definitively settled.
The appeal will take place in October. We eagerly await
the decision – watch this space for further updates.
With special thanks to articling student Tom Boyd for his
assistance with the preparation of this article.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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