Environmental Appeal Board determined that a Certificate of Compliance, based on risk-based standards, is a permanent remediation solution under the Environmental Management Act
Robert J. Lesperance, Partner
Phone: 604-685-8737
Email: rjl@lmlaw.ca
The Environmental Appeal Board’s 2018 decision in the captioned case will be of interest for those parties seeking to remediate a contaminated site to risk-based remediation standards and obtain a risk-based Certificate of Compliance (CofC) as a permanent solution to remediate a contaminated site.
One of the issues in the captioned appeal was whether Suncor, who applied for a flow through risk-based CofC on the City of Burnaby’s (the “City”) roadway, failed to give preference to remediation alternatives that provide permanent solutions to the maximum extent practicable, as required by section 56 of the Environmental Management Act (the “Act”).
The City’s Submissions
Suncor had remediated the contamination on a former gasoline service station adjacent to a City street and applied for a risk-based CofC for the City’s roadways. The CofC was issued by the Director and one of the grounds for the City’s appeal of the decision was that section 56 of the Act required Suncor to give preference to remediation alternatives that provide permanent solutions to the maximum extent practicable. The City further argued that section 56 required the Director to consider whether permanent solutions were given preference to the maximum extent practicable before he issued the CofC for the City’s roadway. The City submitted that one of Suncor’s environmental reports was deficient, and the Director should not have issued the CofC on the City’s street, because Suncor failed to give preference to permanent solutions for remediating the contamination on under the roadways, to the maximum extent practicable. The City also argued that Suncor could have remediated those contaminants to numerical standards with minimal additional effort, and should have done so.
The EAB’s Panel Decision
The EAB found that Section 56(1) of the Act provides that Suncor “must give preference to remediation alternatives that provide permanent solutions to the maximum extent practicable, taking into account” the factors listed in subsections (a) to (d) of that section. Similarly, section 56(2) requires that, when issuing a CoC, a director must consider “whether permanent solutions have been given preference to the maximum extent practicable….” The EAB found that the phrase “permanent solutions” in section 56 must be considered in its statutory context, including the factors listed in subsections 56(1)(a) to (d), which are as follows:
(a) any potential for adverse effects on human health or for pollution of the environment;
(b) the technical feasibility and risks associated with alternative remediation options;
(c) remediation costs associated with alternative remediation options and the potential economic benefits, costs and effects of the remediation options; and
(d) other prescribed factors.
Thus, in determining whether Suncor and the Director complied with section 56 of the Act, the EAB considered not only any potential for adverse effects on human health or the environment, but also the technical feasibility, risks, and remediation costs associated with alternative remediation options. The EAB stated that the potential for any adverse effects on human health or the environment must be balanced against the technical feasibility, risks, and costs associated with alternative remediation options.
The EAB concluded that there was nothing in section 56, or any associated statutory provisions, indicating that remediation to numerical standards should be considered a more “permanent” or lasting solution than remediation to risk-based standards. Throughout the contaminated site remediation provisions in Part 4 of the Act and the Regulation, remediation to either numerical standards or risk-based standards is contemplated. For example, section 16 of the Regulation is titled “Remediation options”, and states that “The numerical standards, or the risk based standards prescribed in section 18 or 18.1, may be used in relation to the remediation of a contaminated site”. The phrase “remediation standards” is defined in Part 4 of the Act to mean “numerical standards relating to concentrations of substances and standards relating to risk assessment, as prescribed in the regulations”. Consequently, the EAB found that either numerical or risk- based remediation standards may provide “permanent solutions” in the context of section 56 of the Act.
WHAT WE DO: Lesperance Mendes has been advising property owners and others on environmental law since 1997. If you are dealing with a contaminated site or other environmental law issue, please contact Robert Lesperance, Partner, at 604-685-8737 or rjl@lmlaw.ca.