13. February 2020 0

Harper Grey’s environmental group argued this case on behalf of the City of Burnaby.

A recent Environmental Appeal Board (EAB) decision highlights that property owners, whose land has been contaminated by migration from a neighbour, have recourse through an appeal to the EAB where they believe a neighbour’s cleanup was inadequate [Burnaby (City) v. Director (Environmental Management Act), No. 2016-EMA-065(a)].

Contaminated sites in BC, if and when they are cleaned up, must be remediated properly and fully, according to the requirements set out the Environmental Management Act and Contaminated Sites Regulation, to receive a certificate of compliance (CoC)from the director. This includes cleaning up neighbouring properties impacted by contaminants that have migrated beyond the boundaries of the source site. Once remediation is complete, the party doing the clean-up will normally seek a separate CoC for the source property and any neighbouring properties that were impacted by the source site.

In the Burnaby case, the source site and adjacent City roadways were remediated, and CoCs were issued by the Director (MOE). The City appealed the Director’s decision to issue the CoCs and was granted standing to appeal the CoC covering the City roadways. The City argued that the environmental investigations carried out and relied upon in obtaining the City CoC was deficient and did not meet the requirements set out in the Act and Regulation. On appeal, the EAB found there were in fact deficiencies and gaps with respect to some key aspects of the investigation. In particular, the EAB found that the source and direction of migration of certain VOC contamination on the City roadways, was not adequately investigated. The City’s appeal was therefore allowed in part and the EAB sent the matter back to the Director with directions, resulting in the owner of the source site being required to address the deficiencies in the investigation within a specific time frame. While the EAB did not make completion of further investigation and, if necessary, remediation of the City roadways an express condition to maintaining the source site CoC, it is the author’s view that this is the practical effect of the decision in the context of the applicable Ministry protocol.

The EAB’s decision serves as an example of a successful challenge by a victim of migration where that victim is not satisfied with an investigation or remediation carried out on its property. In this case, the challenge was successful, even in the face of a CoC having been issued by the MoE in respect of both the source site and the neighbouring City roadway.

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