The Appellants appealed the Assistant Regional Waste Manager’s preliminary determination that certain properties are a contaminated site. The Board requested submissions from the parties on the issue of whether a preliminary determination that a site is a contaminated site constitutes an appealable decision under section 43 of the Waste Management Act (the “Act “).
The Board found that a preliminary determination did not constitute a “decision” within the meaning of section 43 of the Act. The Board found that the Legislature intended to distinguish between preliminary determinations and final determinations for the purposes of an appeal when it enacted section 26.4(5) of the Act, which expressly provides that a final determination under section 26.4 may be appealed to the Board. The Board found that, based on the statutory scheme set out in Part 4 of the Act, serious consequences such as liability for remediation arise from a final determination of contamination, and not a preliminary determination. Further, a preliminary determination is not an “order”, “the imposition of a requirement”, or “an exercise of power” within the meaning of section 43.
The Board also considered whether procedural fairness required that a preliminary determination should be appealable to the Board. The Board found that the inability of a potentially responsible person to appeal a preliminary determination did not affect the procedural fairness of the determination procedure in section 26.4 of the Act. Accordingly, the Board found that it did not have jurisdiction to hear the appeal. The appeal was dismissed and a request for costs by Sanbo Developments was denied.