Western Canada Business Litigation Blog

Who says it’s clean enough? Municipality Appeals Ministry Decision to Issue Certificate of Compliance

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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.