BC Rail Ltd., BCR Properties Ltd., and British Columbia Railway Company (BCR Group); District of Squamish; FMC Chemicals Ltd., FMC Corporation, FMC of Canada Limited – FMC Canada Limitee, and Mid-Atlantic Investments Ltd. (FMC Group); International Forest Products Ltd.; Squamish Nation, Third Parties
Panel: Katherine Hough, Dr. Robert Cameron, Marilyn Kansky
This was an appeal of the decision by the Director of Waste Management to issue a remediation order with respect to mercury contamination at the site of a former chlor-alkali plant and certain off-site lands and water bodies (the “Site”). Canadian Occidental Petroleum Ltd. (“COPL”) sought an order that Mid-Atlantic Investments Ltd. (“MAI”) be added to the order as a person responsible for remediation. There was no dispute that MAI is a person responsible for remediation by virtue of having owned and operated the plant for over 20 years.
COPL argued that the Director must name in the order all persons who contributed most substantially to the Site becoming contaminated, including MAI. The Board found that the Director was not required under the Waste Management Act to name all substantial contributors in the remediation order. The Board found that the Director must, to the extent feasible without jeopardizing remediation requirements, name at least one person who contributed most substantially to the Site becoming contaminated, having taken into account the factors listed in section 27.1(4)(b), and any private agreements of the type specified in section 27.1(4)(a) which are known to the Director.
COPL also argued that the Director erred by deciding not to name MAI on the basis of certain private agreements. The Board found that these private agreements either failed to provided sufficient grounds for not naming MAI in the order, or were not the type of agreement that must be taken into account by the Director under section 27.1(4) in deciding which persons to name in the order.
The Board found that MAI should be added to the order as a person responsible for remediation because most of the mercury discharges from the plant occurred while MAI operated the plant, and there was no suggestion that adding MAI to the order would jeopardize remediation efforts. The appeal was allowed.