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THE CORPORATION OF THE CITT OF PORT COQUITLAM
ENVIRONMENTAL PROTECTION COMMITTEE

Wednesday, March 13, 1991

Heritage Meeting Room

2580 Shaughnessy Street, Port Coquitlam,

BC

5:00 p.m.

DELEGATIONS:

Mr. Waldemar Braul

PERSONNEL IN ATTENDANCE:

SINAI

ITEM

I:

CONFIRMATION OP MINUTES OF PREVIOUS MEETING

ITEM

II:

CONTAMINATED

III:

RECYCLINQ RESPONSE:

ITEM

ITEM IV:

SITES:

DISCUSSION PAPER

(Report from Deputy City Engineer dated march 5/91 and Mr. Waldemar
Braul)

(Report from Deputy City Engineer dated March 11/91)

TROPOSPHERIC OZONE FORECASTING SERVICE

(Report from Deputy City Engineer dated March 11/91)

ITEN V:

ENVIRONMENI'AL ACHIEVEMENT AWARDS

(Report from Deputy City Engineer dated March 11/91)

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ENVIRONMENTAL PROTECTION COMMITTEE SCEND'ont

ITEM VI-'E-REFINED MOTOR OIL

'd...

(Report from Deputy City Engineer dated March 11/91)

ITF2f VII:

NEW BUSINESS

THE CORPORATION OF THE

CITT OF PORT COQUITLAM

ENVIRONMENTAL PROTECTION COMMITTEE

MINUTES

special meeting of the Environmental Protection Committee was held in the
Room,
2580 Shaughnessy Street, Port Coquitlam, on Wednesday,
March 13, 1991 at 5:00 p.m.
A

Heri.tage

In attendance were:
Alderman R. Talbot, Acting Chairman
C.F. Gaudry, P. Eng., Deputy City Engi.neer
A. de Boer, Project Engineer

Waldemar Braul, Solicitor

John H. Wiens, Ministry of Environment
ITEM:

Dr.

CONTAMINATED SITES:

DISCUSSION PAPER

representing the Ministry of Environment and the Ministry's
Walemar Braul attended a special meeting of the Environmental
Protection Committee to discuss the recently released discussion paper for.
Wiens,

solicitor

regulating contaminated sites.

(R

Dr. Mens presented some background to the discussion paper indicating
that
currently the legislation impowered the Provincial Government to act in most
situations within municipalities, however i.t currently was on an adnoc basis
and with the hit and miss approach, certain projects were being missed.
He
indicated that larger municipalities such as Burraby, Vancouver, Delta, and
Surrey had adopted procedures in their
process to ensure that
historical seazches of suspect properties approval
were undertaken prior to final
approval being granted by the Muni.ipality..

~l

The idea of the new legislation for contaminated sites would be to
impower the
Provincial Ministry to negotiate with each Municipality
a
certain
delegation
of duties associated with the identification and site remediation
of
contaminated sites. It would naturally depend on the capabiliti.es plus the
desires of the community involved to what extent these duties were turned over.
Mr. Braul indicated that liabili.ty would be delt with in the new legislation.
He felt that along with the delegation of the functions of de &ling
contamInated site identification and remediation that there would have to with
degree of liability protection afforded to the individual municipalities, beitsa
elected and appointed officials. By example he indicated the current
legislation does not afford slot of liability
Dealing with high
risk orphan si.tes (contaminated site abondoned protection.
by the ownez because of clean
up costs) that right now the City has no defence against a pollution abatement
order from the Ministry of Environment for clean up. Under the new
legi.elation there would be a defence against it.

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also advised that the Provincial and Federal Governments signed a
joint program on June 30, 1990 regarding high risk orphan sites. It basically
provides clean-up funding for a site abandoned by the owner because of high
clean up costs.
There being no further business the meeting adjourned at 7:00 p.m,
Dr. Biens

CAN (Kip) Gaudry, P. Eng.
Deputy City Engineer

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THE CORPORATION OF THE
CITY OF PORT COQUITLAM
MEMORANDllM

TO:

Environmental Protection Committee

FROM:

Kip Gaudry, P. Eng
Deputy City Engineer

SUBJECT:

March 5, 1991

DATE:

~

NEW DIRECTIONS FOR RRGIJLiLTZNG CONTANIRQTS
A,

SITES:

DISCUSSION PAPERs JMIJART 1991

RECOMMENDS?ION:
we invite Mr. Waldemar Braul of the Ministry of Environment to our
Committee meeting of March 13, 1991 for consultation and discussion on this

That

topic.

BACKGROUND 6 COMMENTS

In January 1991 the B.C. Ministry of Environment published a discussion paper
on new directions for regulating contaminated sites.
It is an excellent
publication and summarizes well the state of the industry regarding
contaminated sites.
The
report deals throughly with identification,
remediation and on going monitoring of contaminated sites as they are

identified.

Ministry feels there is already an on going involvement by municipalities
in the process. Certainly by direct and indirect means it is often municipal
officials who identify contaminated sites and raise the issue with the
Ministry of Environment. In most cases the clean up and remedial action is
spear-headed by the Ministry of Environment. We understand there may be
stronger participation by municipal governments if in fact the land is
municipal owned land, such as the recent clean up of harbour lands in Victoria.
The

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The one area where we perhaps should take a stand is the proposal to delegate
many functions of the process directly to municipalities where a mutual

The report recognizes that not all communities
accept all responsibilities; however, in general they propose the
following functions could be delegated to a municipality:

agreement can be established.
can

Approval of remediation plans;
Review and approval of assessments;
Determination of the extent of public involvement;
Requirement of financial assurance for the due performance
of the remediation process; and
Certification of the remediated site.

Further, the report states that delegation of regulator'y responsibility to
municipalities would have to take into account factors such as:
Technical capabilities of municipal staff;
Indemnification against liability of municipal officials; and
— The
types of projects and sites, including whether they pose
unique, specialized assessment and remediation.
—

It is my opinion that we must strongly state the case that the municipali.ties
are not in a position to accept any responsibilities or delegation of
functions under this legislation at this time. There are several factors for
my

position:

municipal officials in the engineering area are not
specialized in environmental issues and the technicalities
associated with the type of specialized analysi.s and training
necessary to deal intelligently and confidently in this area.
Tn fact it is our belief that specialists in this area are few

Technical

Most

and far between.

Municipal officials, both elected and appointed are subject to
enough
liability exposure with the current state of
responsibilities and obligations. There is also the new
predicament that certain offences now fall under the criminal
code rather than the civil code.

Liability

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NEMO TO

EPC

Responsib1e

Parties

It is our belief that many of the contaminated sites that are

currently identified or that are still unknown but potentially
exist belong to companies such as railways, major petroleum
companies and real estate holdings. It is undoubtedly more
within the financial capabilities of the Provincial Government
to deal effectively with these parties rather than small
municipalities. Further, companies that do business in
several municipalities could have identical problems, yet be
receiving different treatment because of a lack of
coordination.

In the covering letter to the discussion paper the writer indicates that a
meeting can be organized with a representative from the Ministry of
Environment. I have contacted Mr, Waldamer Braul in Vancouver and he has
agreed to attend a meeting at 5:00pm, March 13, 1991 if Committee agrees.

Deputy City Engineer
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TO:

Principal Appointed Officers:

North Vancouver City
North Vancouver District
Richmond
Surrey
New Westminster
Port Moody
Coquitlam

UNION OF
BBITISH
COLUMBIA
MUNICIPALITIES

Victoria
Saanich
Kelowna
Prince George
Kamloops
Prince Rupert
Port Coquitlam

FROM: Richard Taylor, Executive Director

Suite 15
10551 Shelbridge Way
Richmond
Britiah Columbia
Canada V6X 2W9

DATE: February 27, 'l 991

CONTAMINATED SITES DISCUSSION PAPER

RE:

(604 I 200-8226

Iha (604 l 66D-2221

We received a quantity of the Ministry of Environment's
Discussion Paper on Contaminated Sites.
Besides a general notice of its release in our newsletterI we have
t
se.ected
a number of municipalities that might be interested and are
providing you with a copy in the event you have not already
received the material.
We would be interested in any comments you might have.

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Province of
British Columbia

Waste Management Branch
10 Blanshard Street

Ministry of

Environment

Iclcfra

Bnash Ccfumbra
VSV lx5

File: 135-40/NMAN1
FEB G

~ssj

Dear Sir/Madam:
Re:

New Directions

for Regulating Contaminated Sites:

A Discussion Paper

Attached please find a copy'of a discussion paper prepared for the
Environmental Protection Division, Ministry of Environment.
The AI ril 5, 1990 Speech from the Throne announced plans for amendments to
management. Bill
the Waste Management Act relating to contaminated sites effective
August 30,
became
1990,
which
Amendment
Act,
68, Waste Management
1990, implemented some initial changes. Many issues remained unaddressedr
however, pending further analysis and consultation.
The attached discussion paper identifies and discusses a wide range of
selected to
issues. It outlines various options and reviews approaches
address them in legislation in other jurisdictions. Proposals currently
being considered by the Ministry of Environment aze indicated.
The Environmental Protection Division intends to meet with a wide range of
interested parties, and provide opportunities for'iscussion of planned
legislation. In addition, written submissions will be welcomed.
If you wish to arrange a meeting for your organization, or to clarify
or Mr.
matters raised in the paper, please call Dr. John Niens (387-9948)
Lloyd Johansson (387-9950) in'ictoria, or Mr. Naldemar Bsaul (684-8886) in
Vancouver .

Written responses to the discussion paper should be. forwarded as soon as
possible, but no later than March 29, 1991 rol
Dr. John H. Niens, Head, Contaminated Sites Unit, Ministry of Environment,
810 Blanshard Street, Victoria, B.C. VBV 1X5
Yours

truly/

II"
Fast
Executive Director
Environmental Protection Division
Don A.

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Regulating Contaminated Sites:
A Discussion Paper

A DISCUSSXGN PAPER

Ministry of Environment
Province of British Columbia

Prepared for
Environmental Protection Division
Ministry of Environment
By Waldemar Braul
Barrister & Solicitor

January 1991
l4!

hswa
IIII&I

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TABLE OF CONTENTS
1.

INTRODUCTION
1. 1 Contaminated Sites Become An Issue

1

1.2 'Ihe Purpose of This Discussion Paper.
2.

2

WHAT ARE CONTAMINATED SITES?

2.1 Soils, Ground Water or Facilities Contaminated..........,.......,.........

3

2.3 How Clean Is Clean? ..

3
4

2.2 Environmental and Health Problems of Contaminated Sites ...
3.

HOW ARE CONTAMINATED SITES MANAGED NOW?

3. 1 Identiflcadon of Contaminated Sites.
3.2 Assessment of Contaminated Sites
3.3 Triggers for Remediation of Contaminated Site......
3.4 Actual Clean-ups of Contaminated Material.

4.

4
6
7

3.5 Notification...................................................

8
9

LEGISLATIVE NEEDS IN BRITISH COLUMBIA

10

4. 1

Purpose of New Legislation.
Effective Procedures for Identification and
Assessment of Contanrinated Sites.

10

4.2.1 General Duty to Provide Preliminary Assessments....
4.2.2 Detailed Assessments.
4.2.3 Database of Contaminated Sites.
4.2.4 Improved Notice of Contamination .................................

11

4.2

4.3 Liability for Clean-Up: Implementation of the
"Polluter-Pay'rinciple.

12
13
14

15

4.3. 1 Responsible Persons.
15
4.3.2 Types of Liability — Absolute and Strict.................................... 17
4.3.3 Retroactive Liability
18
4.3.4 Joint and Several Liability
18
4.3.5 Exemptions trom liability.
20

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4.3.6 Settlement Agreements.
4.3.7 Limits on Liability..

22
22

4.4 Powers to Ensure Remediation

... 2 2

4.4.1 Approval of Remediation Plans...............................
4.4.2 Authority for Government Cleanup and Cost Recovery....... 2223

4.4.3 Financial Guarantees..

„ .... 2 3
4.4.4 InJunctions to Prevent Development Before Cleanup........
......,. 23

4.4.5 Veriiicaiions..
4.4.6 Certiilcations

....,
24
.....,...................,................
24

4.5 Delegation of Functions to Municipalities..
4.6 Public Notice and Review.
5.

WHAT ABOUT PROVINCIAL CLEANUP CRXTEIUAV

6.

A FINAL NOTE ON CONSULTATXON

.

.

25

..25

APPENDXX 1: SUMMARY'F RELEVANT LEGISLATION
1. The Waste Management Act: Permits, Orders, tk Spills.....
2. Special Waste Regulation
3. The Environment Management Act: Environmental

1

3

Emergencies and Protection .
4. Land IMeAct
5. Local Government Bylaws and Policies..

4
4

APPENDIX 2: OTHER JURISDICTIONS

7

1. The LLSApproach..
2. Ontario's Approach..
3. Queb c's Approach..
4. 1he Netherlands'ppmach.

7
9

3

9
10

APPENDIX 3: REFERENCES
1. Books and Reports.

2. Statutes.

11

12

1.

INTKODUCTION

1.1 Contaminated Sites Become An Issue

The past focus of pollution control legislation in British
Columbia was on 'end-of-pipe'ischarges. The provincial
Waste Manatrement Act, for instance, was primarily
designed to regulate discharges from current activities.

The orientation to current activities has resulted in a
lack of legislation addressing contamination left by
historic activities. Waste disposal practices going back
decades, if not the past century, have left a legacy of
contaminated land, groundwater, and sediments in
British Columbia. Many of these sites are now recognized
as posing environmental hazards and human health risks.
These hazards and risks are not adequately addressed by
current legislation. For example, there is an inadequate
legislative basis for identifying and assessing suspect
sites, making it difficult for the Ministry of the
Environment to establish rational clean-up priorities.
Nor are there effective legislative or common law rules of
Indeed, there is
liability to compel clean-ups.
widespread uncertainty over who is liable to pay for
cleaning up contaminated sites. There clearly is a need
for law reform.
The need for law reform was recognized in the last
throne speech which stated the government's intention
to introduce legislation respecting contaminated sites.
The provincial government recently amended, with Bill
68, the Waste Management Act to improve the Ministry's
ability to regulate contaminated sites, especially with
respect to obtaining information about contamination,
ordering former owners to clean up, and providing
certificates of compliance. This amendment, however,
represents only a first step. The Ministry is in the
process of developing new legislation to deal specifically
with the many unique problems associated with
contaminated sites.

%ll

The province is participating in a joint federal-provincial
program designed to remediate 'orphan high risk
contaminated sites.'his program, created in 1989 by
the Canadian Council of Ministers of the Environment,
established a $250 million fund to remediate orphan
high risk contaminated sites and to develop remedial

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Contaminated Sites Legislation Discussion paper

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technologies over five years. To implement a key
element of this program, the province and the federal
government signed a cost sharing agreement on
November 30, 1990. ln establishing this national
program the Environment ministries also agreed to
endeavour to pass 'polluter-pay'ontaminated site
legislation by December 31, 1991.
Another parallel initiative is the Ministry's development
of clean-up standards, namely the Criteria for Managing
Contaminated Sites in B.C. These Criteria follow the
standards adopted for the Pacific Place clean-up, and
now are being refined to be generally applicable to a wide
variety of contaminated sites.
1.2 The Purpose of This Discussion Paper

The Ministry recognizes that law reform dealing with
contaminated sites raises complex legal issues. This
discussion paper serves as a basis for consultation with
parties which might be affected by law reform. The
paper highlights legislative needs for dealing with
contaminated sites. The paper also describes law reform
solutions which are under active consideration by the

II5

Ministry. The paper highlights the main principles
which would guide specific legislative provisions in order
to facilitate discussion on whether the directions of
reform are appropriate.
The law reform proposals set out in this discussion paper
should not be seen as fixed. The consultations will serve
to guide the next stage of analysis and legislative drafting.

This discussion paper relies heavily on the analysis
contained in a report commissioned by the Ministry of
Environment in 1989, "Contaminated Sites Management
in the Province of British Columbia: A Review of
Provincial Rules and Responsibilities". Readers seeking
detailed analysis of current legislation should refer to
that study. Appendix 3 provides a list of additional
references which could be consulted.

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contaminated Sites Legislation ntscusston Paper

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WHAT ARE CONTAMINATED SITES'a

oils, Ground Water or Sediments Can Be
ontaminated

mination of sites - soil, ground water, sediments,
can occur in a wide variety of ways. Many
trial sites have been contaminated from process
arges to land or water, on-site burial of wastes. nonchemical releases (small, frequent drips and
stockpiling and storage of materials, major spills,
leases during fires.

mination can also result from filling sites with
aminated soil from elsewhere and illegal dumping.
r landfill sites may contain a wide array of
minants. If adequate measures are not taken to
a landfill site, especially in areas of high rainfall,
or later contaminants will leach into surface and
dwaters. Landfill sites, once capped, can become
attractive for development, including residential
pment, but they nonetheless can remain as longsources of pollutants.
ground storage tanks represent another maJor
of soil and water contamination. Many tanks,
ally those installed before the mid-1970s, were
ructed with little protection against corrosion and
ailure.

nvironxnentsl and Health Problems of
ontaminated Sites

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minated sites can be "toxic" -- that is, exposure to
minants could cause temporary or permanent
adverse effects in living organisms or their offspring.
Research has shown that toxic effects could arise from

exposure to heavy metals such as chromium, lead and
arsenic; industrial pollutants such as polycyclic aromatic
hydrocarbons (PAHs) and pentachlorophenols (PCPs);
and products such as polychlorinated byphenols (PCBs)
and asbestos.
It should be noted, however, that considerable scientific
uncertainty still exists over the toxicity of many
chemicals, particularly chronic toxicity effects. Test

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results n . subject to highly varying interpretations. The
discipline of toxicology is relatively new, and faces the
challenge of keeping up with rapidly increasing
use of
new chemicals in industrial processes. Toxicologists
a difficult task because the health effects face
of
contaminants, especially at the levels often found in
polluted soil or water, may not appear for decades after
exposure. This makes it exceedingly difficult to reach
definitive conclusions about cause-and-effect
relationships.
2.3 How Clean Is Clean'

There is ongoing debate over what constitutes
appropriate clean-up criteria.
these
standards involves difficult decisionsDetermining
regarding
the
of risk to human health and the environment thatlevel
is
acceptable. In addition, standards affect costs of cleanup. High public expenditures on clean-ups may be at the
expense of other worthwhile social programs.
To properly address these issues, the Ministry is
developing the Criteria for Managing Contaminated Sites
in B.C. But this is a complex task, given
the considerable
scientific uncertainty of the toxic effects of low
levels of
contamination. In spite of the uncertainty, there
is a
need for defensible standards in the provincial strategy
for clean-dp. The Ministry does not intend to view the
criteria as "the final word". Further refinement
is
expected as toxicological information becomes available
and as testing methods improve. In addition, efforts have
been made under the auspices of the Canadian Council of
the Ministers of Environment to develop consistent
nation-wide clean-up criteria.

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framework is a general lack of information about
the full
extent or severity of contamination. There has been
no
specific undertaldng to create an inventory, a central

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registry of contaminated sites or a tracking system for
contaminated materials in British Columbia. The scarcity
of information is not surprising. In many cases owners
are iaot aware of contamination and where it is known;
nor is there a general legal duty on owners, occupiers, or
operators to disclose to government whether their sites
are contaminated.
The Ministry needs reasonably comprehensive data to set

priorities and to make well-informed decisions on
whether clean-ups should be ordered. Accordingly, the
Ministry currently employs a variety of means of
identifying contaminated sites, namely:
voluntarv disclosures bv develooers - prudent
developers wishing to develop a potentially
contaminated site recognize the need to
discuss assessment and remediation with the
Ministry at an early stage;
referrals from municioalities - if, on receiving
a development proposal, a municipality is of
the view that there might be a contamination

problem, it will normally refer the developer
to the Ministry of Environment to receive
direction on further assessment;
Dollutioit abatement orders under section 22
of the Waste Manatsement Act a Manager of the
—

Ministry may order a person who had
possession, charge or control of a polluting
substance to provide information relating to
the pollution and to undertake investigations,
tests and surveys to determine the extent and
effects of the pollution;

administration of Soecial Waste Retrulationthe Ministry becomes aware of contamination
by virtue of the reporting requirements placed
on operators of "special waste facilities"
(" special waste" refers to particularly hazardous
waste, as discussed more fully in Appendix 1);

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administration of permits and other aDDrovalsthe Ministry is able to identify some
contaminated sites through its administration
of Section 8 of the Waste Manatiement Act,

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under which the Ministry may approve with
certain conditions (including monitoring) the
introduction of waste into the environment;
and
disclosure in emergencies - the Ministry of
Environment could also order persons to
provide information about the extent of
contamination on their lands in cases where
emergencies exist (pursuant to section 5 and
6 of the Environment Manatrement Act).
additional means of identification are viewed as
potentially useful sources, namely:

Two

monitoring the movement of material not
aualifvintr as soecial waste from contaminated
sites - contaminated material from industrial
sites can presently be relocated to other sites
as "fill" without any reporting requirement;
decommissioninLr of industrial facilitiesthere is no present duty to disclose to
government (or subsequent owners) how
contamination is managed when an industrial

is decommissioned or how
contamination is dealt with in the process of
plant modernization or expansion.

plant

3.2 Assessment of Contaminated Sites
Many assessments or site investigations undertaken today
are carried out as part of the redevelopment process.
Once a municipality refers a redevelopment proposal to
the Ministry for assessment, the usual practice of the
Ministry is to require the developer to conduct a phased
site assessment. Normally the developer furnishes a site
assessment report prepared by an environmental
consulting firm. W'ith this report, Ministry officials
consult with the developer and his consultant to
determine if and how a clean-up should be carried out.

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nistry's assessment is guided by two important
e documents:
Criteria for Manatrinti Contaminated Sites in
B.C. (Draft) - administrative guidelines with

maximum contaminant concentration
standards of 'cleanliness'hich address human
health and environmental considerations and a
quantitative risk assessment/risk management
approach which considers on-site management
of contamination; and

Special Waste Regulation - passed pursuant to
the Waste Manatrement Act, it sets out
numerous requirements for handling, storing
and disposing of "special waste" and for siting
(The
and operating "special waste facilities".
Criteria and the Regulation are discussed in
more detail in the Appendix 1.)
s amendment to the Waste Management Act now
s a broader legislative basis for requiring
tion including site assessments. As noted above
3.1, section 22 of the Waste Management Act
the Ministry to order named persons to provide
tion relating to pollution. No regulations or
trative guidelines have been developed specifying
mat or content of assessments.

ggers for Remediation of Contaminated Site

onomic reasons, the sites which tend to be
ated are those which are intended for
opment purposes, Developers recognize that
overnments have discretionary authority to
d approval for rezoning, and could reject a
Consequently
I on environmental grounds.
ers consider remediation as an important aspect
opment. In any event, developers generally will
clean up their contaminated sites to avoid future
under the common law.
important trigger for remediation arises via
22 of the Waste Management Act. Section 22
a Manager of the Ministry of Environment to
person who had possession of a polluting
Contaminated Sites legislation Discussion Paper

substance, or a current or past owner, to carly out
investigations of contamination and remediation in
accordance with any criteria established by the Ministry's
Director. Section 22 provides broad authority for
assigning the costs of clean-up to persons who originally
caused the problem.
While section 22 provides the Ministry with considerable
flexibility, its wide scope means that predicting if and

when a party could become liable is a very uncertain
matter. No guidance is given on which principles of
liability apply. Retroactivity is clearly intended and
persons named in an order are intended to be fully liable.
As concerns over contaminated sites mount, parties will
increasingly recognize that planning for potential liability
under section 22 is a very difficult, if not impossible,

matter.

3.4 Actual Clean-ups of Contaminated Material
The actual clean-up of a contaminated site is subject to a
number of treatment and handling requirements. If the

site contains "special waste" then the requirements
contained in the Special Waste Regulation will'pply. If
the site contains other (generic) waste or contaminants
at lower concentrations, then the clean-up could be
compelled by an order under section 22 of the Waste
Management Act. Finally, the terms of waste disposal
approval (usually a permit) issued under section 8 of the
Waste Management Act could also govern clean-ups,
although in practice section 22 would normally be used
for this purpose.

As a result of Bill 68,

the Waste ManaLsement Act now
enables a Manager of the Ministry to issue a "certificate
of compliance (s. 20.2). This provision, however, awaits
the passage of regulations specifying the procedures and
conditions under which certificates are issued.

Hazardous waste management is a problem for parties
cleaning up contaminated sites, since British Columbia
has no central treatment facility for hazardous wastes and
shipment to other jurisdictions for disposal is expensive.
Accordingly, in many cases waste which has been
extracted from a site must be stored. Storage facilities
for special waste require authorization pursuant to
section 3.2 and section 4 of the Waste ManaLrement Act
Contaminated Sites Legislation Dlsensslon Paper

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and must meet the operational and performance
requirements set out in Division 2, Part 4, of the Special
Waste Regulation.
It should be noted that legislation generally is silent on
government authority to enforce clean-ups. For example,
except under emergencies, the government lacks the
power to undertake remedial measures at the expense of
a property owner. While entry onto private property and
unilateral clean-up of that property by government should
not be arbitrary, the Ministry is of the view that in
certain instances, the public interest would be served to
do so (as discussed in 4.4.2 below).

'verify'hat

Legislative authority to request that proponents
clean-ups have been carried out according to a
predetermined clean-up plan has not been provided in
the context of contaminated site provisions though it
could form part of the requirements of site specific order
provisions.

3.5 NotIflcations
In B.C. there are presently two statutory provisions
allowing for notification of potential problems due to
contamination of land. Section 320.1 of the Land Title
Act enables a Director of the Ministry of Environment to
file a notice of land contamination on the title to that
land where the site contains "special waste" and where
there is a danger to human health.

The second notification provision is s. 215(1) of the Land
Title Act which provides for the registration of a
covenant restricting the use or development of land.
Unlike section 320.1, which is a simple notification,
section 215(l) of the Land Title Act is regulatory in
nature, as it can restrict land use.
A parallel use of the Ministry of Crown Lands'Crown

Land Registry System" for non-titled properties should
also be considered as public notification.

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Contaminated Sites Legislation Discussion Paper

LEGISLATIVE NEEDS IN BRITISH COLUMBIA

Purpose of New Legislation

resent, the main factors governing assessment and
diation of contaminated sites are the common law,
ial application of certain statutory provisions
bly order powers), and market forces.
The
stry's experience is that the common law, current
ation and the market place have significant
ations to achieving cost effective and appropriate
diation. What is missing is legislation designed to
with contaminated sites in a direct and systematic
ner. The following elements of the regulatory
cwork need improvement:
identification and assessment - there is a
need to establish a legislative basis for an
effective system of identifying and assessing
contaminated sites;
liabilitv for clean-up - effective regulation
requires clear rules assigning liability for
remediation of contaminated sites on the
basis of the 'polluter pay'rinciple;

enforcement

the Ministry requires
appropriate measures to ensure that
-

remediation is carried out in a timely and
technically appropriate manner;

public review - legislation needs to spell out
what provisions will be made for public
review of remediation of major contaminated
sites; and

deletration to municioalities - legislation
should provide the option to delegate
functions to municipalities where

appropriate.

lowing sections consider each of these needs in

ated Sites Legtstatton Dtseusston Paper

4.2 Effective Procedures for Identification and
Assessment of Contaminated Sites

4.2.1 General Duty to Provide PreHxnhxttry Assessxnents

Part 3.1

above described the constraints facing the
Ministry when it attempts to identify the full range of
possible site contamination. Section 22 of the Waste
ManaLtement Act already enables a Manager of the
Ministry to obtain information pertaining to pollution, but
could be improved by clarifying the duties on persons to
provide preliminary and detailed assessments. To
overcome this deficiency, the Ministry is of the view that
legislation needs to clarify the duty to report where
contamination problems might be evident or identifiable.

While this duiy needs to be broad and extensive, it should
not be one which requires detailed assessments in all
instances. Rather, there is a need for information which
is in the nature of 'preliminary assessments'. Preliminary
assessments of the extent of contamination on a site
would suffice to inform the Ministry whether more
detailed assessment is required.

Legislation needs to specify those instances where a
responsible person must furnish a preliminary
assessment. For instance, a duty to provide the Ministty
with a preliminary assessment could be triggered by the
following events:

development/redevelopment applications;

applications for municipal permits to
remove/deposit soil to/from a site;
decommissioning of industrial/commercial

facilities;
rehabilitation/redevelopment of industrial and
commercial facilities;
waste permit applications and waste permit
amendment applications for discharges to land
or storage of special waste; and
"discovery" of a contamination problem by
provincial and municipal authorities by any
other means.

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assessment, be in a position to determine if a
contamination problem warrants further assessment of
site conditions, human health, and environmental
impacts. Legislation is required to clarify how the
Ministry would request detailed assessments.
Regulations should set out criteria for determining
whether a detailed assessment is warranted (including

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detailed assessment is not warranted, a letter of "nonapplicability" to persons who are concerned whether
such an assessment might be required.

Preliminary assessments as well as Ministry decisions
respecting whether detailed assessments are necessary
would be registered in the Ministry's site information
data base (as discussed below in 4.2.3).

4.2.3 Database of Contaminated Sites
There is need to establish a sites information database
to support the identification and assessment process.
Such a database would be especially beneficial if it lists
sites considered or assessed for contamination, describes
the types and locations of known information about the
site (including aerial photos, well logs, assessment
reports, etc.), contains a record of site status for all sites
referred to the Ministry for assessment, and sets out
Ministry decisions on whether detailed assessments are
required.

Information on this database should be available to the
public, subject to government policy respecting the
handling of proprietary information and limitations on
the liability of government in relation to developing,
maintaining and providing access to such a database.
The provision of a legislatively-based database would help
to resolve the growing concern that the government and
its officials are subject to a high degree of liability arising
from their disclosure, or non-disclosure, of information
pertaining to contaminated sites. Agencies often have,
or are perceived to have, a good deal of information
which might influence the decision of a requesting
member of the public (e.g., a prospective purchaser of
Government agency officials will
real estate).
increasingly be pressed for information, and will be
uncertain as to the extent of the duty to collate
information from their files. Legislation does not set
limits on the extent of the duty to disclose information in
the possession of government agencies and potential
liability.

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difficulty facing government officials is illustrated in
a recent B.C. Supreme Court decision which found the

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orders on title, but tt may be another matter altogether
to place other 'raw'nformation about contamination on
title. The feasibility of attaching such inforxnation on title
and the implications of such annotation require further
evaluation. The challenge for law reform is to balance the
need for certainty and the need to warn the public about
potential hazards.

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4.3 LiabQity for Clean-Up: Implementation of the
'Polluter-Pay'rinciple
4.3.1 Responsible Persons
The Ministry considers that liability for the clean-up of
contaminated sites should be governed by the principle
of 'polluter pay'. While this principle is logical and
supportable, it is a complex task to define "polluters'or
the purpose of assigning liability. An inappropriate
definition of polluters, of course, means that taxpayers
will have to pay a greater share of clean-up costs.

'Polluters'hould include not only those persons who

actually operated a site and discharged hazardous
contaminants as part of the operations, but also those
persons who contributed, directly or indirectly, to
pollution on a given site. Jurisdictions which have
passed contaminated site legislation use very broad
definitions of polluters, or 'responsible persons'. For
example, U.S. federal legislation the (Comorehensive.
Environmental Resoonse. Comoensation and Liabilitv Act,
or CERCLA) specifies four classes of responsible persons:
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vast owners or ooerators who owned or
operated the site at the time that the
hazardous substance was deposited on the site;

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Lrenerators of waste who arranged to deposit
the waste on the contaminated site; and
transoorters who accepted hazardous
substances for transport to facilities they
selected and from which there was
subsequently a release or threatened release.

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subsequently transferred the facility to another
person without disclosing such knowledge;
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Many U.S. states have passed legislation similar to
CERCLA (to regulate those sites which are tiot covered by
CERCLA). Most adopt the above categories but others
such as Oregon have expanded the list of responsible
persons to include:

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or removal or remediation

fine classes of 'responsible
al description of activities
Nevada's CERCLA-type
vides that a "person who

any hazardous material
requiring the cleaning and
ed area is responsible for
ation."
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manager wide discretion to
tions, etc. could benefit
which persons could be
p costs. The legislative
rsons'mports a degree of
he current situation where
ainty, that a wide variety of
the cost of clean-up. The
merits of designating four
which are most commonly
on (operators, owners,
(For further details of the
—

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be seen as candidates for
nated Ministry official (e.g.
discretion to determine
ed, and which responsible
clean-up. That is, actual
ized by the exercise of an
Lrement Act, meaning that
uld necessarily be liable in
s, as is provided under the
ould apply.

onal Contaminated Sites
to deal with orphan sites,
not to have identifiable
responsible persons, or responsible persons exist but are
unwilling or unable to contribute to clean-up. Such
persons would be subject to responsibilities under the
liability provisions under proposed amendments to the
Contaminated Sites Legislation Discussion paper

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Waste Management Act (attempts at recovery of costs by
government are required).

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In addition, as discussed below, there would be a number
of defences or exemptions from liability.

4.3.2 Types of LiabBity — Absolute and Strict

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a general rule, responsible persons would be held
liable according to the rule of absolute liabilitv. There
would be no provision for 'due diligence'efences such
as acting according to accepted practices of the day, or
that the pollution occurred in the absence of pollution
controls.
The Ministry notes that many other
j~risdictions have adopted absolute liability as a means of
achieving the clean-up of contaminated land. Almost all
U.S. state and federal contaminated site legislation either
expressly imposes absolute liability, or has been
interpreted to impose absolui.e liability. U.S. state and
federal legislators apparerttly have recognized that the
defence of due diligence would often prevail under the
common law or under legislation providing for this
defence, and thus significantly limit the contribution by
polluting persons to the costs of cleaning up
contaminated sites. The European Community has also
prepared an absolute liability regulatory framework which
its members are expected to implement. Ontario in
1986 introduced absolute liability as a means of ensuring
that polluters pay for the costs of cleaning up spills. (See
Appendix 2 for further details of the U.S. and Ontario
approaches.)

The Ministry considers that absolute liability would not
be appropriate for owners. Owners could be held strictlv
~liabl, a less onerous type of liability. Strict liability
means that. past and current owners can obtain relief
from liability where they did not know of the existence of
the contamination and exercised all due diligence in the
maintenance of the site, including preventing the release
of hazardous substances. But liability would be attributed
to owners who, for example, did not exercise due
diligence in ascertaining contamination before purchase
or in preventing release of a hazardous substance, or
vendors who unfairly transferred their responsibility. At
the same time, buyers who purchase without inquiring
into the possibility of contamination and have not

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The issue of joint and several liability arises where there
was more than one responsible person with respect to a
contaminated site. Joint and several liability means that

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a responsible person must pay the entire cost if other
responsible persons cannot be found or lack funds to pay
their share.

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The issue of Joint and several liability is a complex one.
The Ministry recognizes that the imposition of joint and
several liability could be potentially unfair a relatively
minor contributor to a site's contamination could be
ordered to pay for the entire clean-up. The Ministry,
however, is of the view that adequate safeguards could
mitigate the potential harsh effects of joint and several
—

liability. Indeed, joint and several liability is an
unavoidable and necessary aspect of the 'polluter
For many sites, it becomes technically very
difficult, if not impossible, to determine the relative
contributions of various responsible persons to a
particular contamination problem. Moreover, in many
sites, the contribution to the contamination by even one
of many polluters would necessitate the same degree of
clean-up.

pay'rinciple.

The Ministry notes that the harshness implied by Joint
and several liability could be mitigated in appropriate
cases. For one, legislation could provide
to Ministry officials. In addition, the Ministry
is considering the possibility of providing a legislative
option of mediation for determining the distribution of
liability between responsible parties. Mediation has the
potential to resolve the issues of relative liability more
quickly and less expensively than proceeding through the
courts but would require consent of all the responsible

'apportionment'uidelines

parties,

:

Certain U.S. states, for example, provide that liability will
be apportioned if there is a reason for doing so, and if
not. liability will be Joint and several. Some states direct
their officials to consider factors such as:

the ability of the parties to demonstrate that
their contribution to a discharge, release, or
disposal of a hazardous material can be

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distinguished;

the amount of hazardous material involved;
the degree of toxicity of the hazardous material

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the degree of involvement by the parties in the
generation, transportation, treatment, storage,
or disposal of the hazardous waste;

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the application of pesticides has been carried
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Contaminated Sites Legisiation Discussion Paper

an owner occupies or has occupied a smgle
family residential property of 5 acres or less,
unless the state proves that the hazardous
substance release occurred after the owner
occupied the property or the owner knew
about the release prior to purchase (California);
ail d

the state fails to prove a causal relationship
between the health or safety threat of a site
and tb.e acts or omissions of the responsible
person (Maine).

Some states such as Massachusetts provide that
exemptions apply only to the clean-up costs exceeding
the value of the real property.

&

The Ministry is in the process of examining the
experience of these U.S. exemptions to determine their
appropriateness in a B.C. context.
Further consideration must also be given to whether
legislative liability, if any, could or should be imposed on
other parties such as receivers-managers. trustee in
bankruptcy, directors of companies, and professional

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advisors (e.g. realtors, environmental consultants,
awyers) .

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4.8.6 Settlement Agreements
The Ministry recognizes the. need to establish a means
for the expeditious settlement of liability claims. For
instance. where a responsible person wishes
settle
with the government at an early stage, this persontoshould
be afforded the opportunity to do so.
agreements are particularly important whereSettlement
there is
xnore than one responsible person, and some
are
engaged in lengthy litigation and further negotiation with
other responsible persons. For instance, certain persons
might dispute whether they fall within a category
of
"responsible persons" and litigation over this matter
could become time-consuming; responsible persons who
are willing to settle at an early
stage should not be
required to incur those lengthy delays.

It is expected that settlement agreements will
used
mostly with parties, whose relatively minor share be
of
cleanup is fairly evident.
4.8.7 Lixnits on'Liability
There is a need for legislation to set upper limits on
liability of government agencies or officials, including any
municipalities or agencies to which responsibility
is
delegated in relation to authorizations for site
remediation or further development.

4.4 Powers to Ensure Rexnediation
4.4.1 Approval of Remediation Plans
Legislation should provide authority for officials to
approve remediation plans subJect to any changes and
requirements that the officials consider
including posting of financial guarantees thatnecessary,
the work
will be completed satisfactorily. Regulations might
be
required to set out guidelines for remediation plans and
factors to consider in evaluating requirements for
financial guarantees.
22

Contaminated Sites Legislation Discussion paper

and remediate private land.

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4.4.4 Injunctions to Prevent Development Before
Clean-up

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There is a need for legislation empowering the
government to obtain an injunction against a person who
fails to carry out the necessary investigations or to obtain

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Where there is uncertainty about the success of the
remediation, that is the measures taken are of an interim
nature, the Ministry should have the option of requiring a
bond or clean-up fund contributions to ensure proper
closure, decommissioning, or final remediation of the
site (e.g, a landfill site).

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the Mintstry and other agencies in
regulatory process for that particular site.
4.4.6 CertiScations
A recent amendment to the Waste Manatrement Act (s.

20.2) provides the Ministry with authority to issue
certificates of compliance with existing provincial
requirements. property owners and local governments
often request the Ministry of Environment to certify
lands as be'ing environmentally safe or suitable for
specific purposes. Regulations (pursuant to section
35(2)) are needed to define criteria and procedures for
issuing certificates of compliance.

These regulations, for example, could clarify that
certification could include conditions attaching to the
final approval of clean-up work on the site. Where ongoing monitoring of the site will be required, the
certificate could indicate the party responsible for the ongoing activity and stipulate the required monitoring
program and reporting arrangements.
Future legislation or regulations could also provide the
authority to make the certification conditional on posting
financial security or on-going monitoring to ensure the
long term care and maintenance of the site. Where the
site meets current standards by virtue of use of risk
assessment/risk management. but where contaminants

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and app o al of assessments,

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determination of the extent of public
involvement;
requirement of financial assurances for the due

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Delegation of regulatory responsibility to municipalities
would have to take into account factors such as:

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technical capabilities of municipal staff;
indemnification against liability of municipal
officials; and
the types of projects and sites, including
whether they pose unique, specialized
assessment and remediation.

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performance of the remediation process; and
certiflcation of the remediated site.

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4.6 Public Notice and Review

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The Ministry recognizes the need to define what
provisions will exist for public input on proposals to
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needs for review may vary
greatly from site to site, and
have introduced a flexible process of review. In the U.S.,
state and federal legislation typically requires that a site
owner develop, subject to government approval, a public
communications strategy which refiects how
needs will be reviewed by the public. particular
Public
communications strategies for complex situations might
require the establishment of a public liaison committee.
the conducting of public meetings and/or opportunities
for the public to review and comment on the assessment
and remediation process and decisions. The goals of the
U.S. legislation, it seems, are to ensure that the public is
accurately informed about the assessment and clean-up
process, that the public is given a meaningful opportunity
to review and romment on the specific components of
the process, and that the format of review is tailored to
the particular requirements of a contaminated site.
An important element of public input legislation
concerns notification. From the point of view of
managing future risks to public health and the
environment, and in light of some of the uncertainties
about these risks, legislation might include a formal legal
requirement for public notification about key steps in the
process. The owner might also be required to maintain,
and make accessible to interested parties, a copy of key
elements of the public file, Such requirements would
apply to maJor contaminated sites and would be like
those now imposed with respect to waste management
permit or approval applications. as specified in the Waste
Management Regulation.

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5.

WHAT ABOUT PROVINCIAL CLEAN-UP CRITERIA'

The question arises over whether clean-up standards
(e.g.. in the form of the Criteria) should be incorporated
in regulations or be left simply as administrative
guidelines. From the point of view of property owners
and professional consultants, there may be a number of
advantages to having these criteria clearly and
unambiguously stated in the form of a regulation pursuant
to the Waste Management Act. An important advantage
for these parties is the possibility that liability could be
limited on the basis that they carry out clean-ups
according to the required standard.
On the other hand, clean-up standards which are based
in regulation may lack flexibility. Given the potentially
complex nature of large site assessments, it may be

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A FINAL NOTE ON CONSULTATION

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The Ministry of Environment intends to seek various
meetings and opportunities for discussion of planned
legislation will be provided. In addition, written
submissions are welcome.

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desirable to have procedural requirements (including
analytical protocols) set out in regulations, but with
technical criteria or standards set out in guidelines and
incorporated into the site assessment and remediation
on the site-specific basis, and reflected in the terms and
conditions attached to required permits and approvals.
That is, the Ministry would retain flexibility to determine
an appropriate clean-up standard for a specific site
without being constrained by a general standard
prescribed in the regulation which may not be
appropriate in that particular instance,

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The input and responses to the discussion paper will be
and
the basis for further drafting of legislation
would
be
regulations. The Ministry suggests that it
particularly helpful while preparing submissions or
responses to the paper, to keep the following points in
mind:
Responses should be provided to the Ministry
as soon as possible. The Ministry faces certain
legislative deadlines and it is the intent of the

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Ministry to conclude this consultation period
by March 29, 1991.

lt would be useful if respondents indicated
which issues or law reform directions are of
most concern or importance to them.
It is particularly useful to obtain responses
which are specific that is, reference made
to certain specific provisions policies, and
situations. Examples and illustrations of
problems or solutions are helpful.
—

Responses to this discussion paper should be sent to:
Dr. J.H. Wiens
Head, Contaminated Sites Unit
Ministry of Environment
810 Blanshard Street
Uictoria, B.C. USU 1X5

The Ministry anticipates that further consultation will be
undertaken as Regulations are drafted. Draft legislation
will be reviewed in the normal legislative review
processes, but Regulations will in all likelihood be
distributed in draft form.

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waste very broadly, thus providing the
discharges of waste to the environment.s
waste
Under section 3 of the Waste Manatrement Act, the introduction of waste
or
order
approval,
into the environment requires a permit,
management plan. Section 8 of the Act provides for the issuance of a permit
many
to introduce waste into the environment or to store special waste. Inpermit,
the
to
attached
are
conditions
instances, structural and operational
Every person who produces, stores, transports, handles, treats,
deals with, processes or owns a special waste must keep the
special waste confined in accordance with the regulations.
The construction, establishment, alteration, enlargement,
extension, use or operation of any facility for treatment,
recycling, storage, disposal or destruction of special waste
requires a permit, approval, order, or waste management plan.

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"Waste" includes air contamirants, litter, effluent, refuse,

biomedical special wastes and any other substance designated by
the Lieutenant Governor in Council whether or not the waste has
any commercial value or is capable of being used for a useful

purpose.

The introduction of waste is defined to mean "depositing the
waste on or in or allowing or causing the waste to flow or seep
on or into any land or water or allowing or causing the waste to
be emitted into the air". Where "special waste" is released from
the required confinemer.t. it is deemed to have been introduced
into the environment unless authorized by a permit, approval,
order, waste management plan or the regulations.
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In addition, the permit may be conditional on the permittee giving security
in the amount and form and subject to the conditions that the manager
issuing the permit specifies. Through this permitting process, some
discharges will be prohibited entirely and some will be allowed at regulated
levels.

When waste or pollution escapes or threatens to escape into the
environment without a permit or in non-compliance with a permit, the Act
provides a scheme of offences, penalties and Ministry orders.
The Ministry relies on two sections of the Waste Manatrement Act to enforce
remediation of contaminated sites. Section 10(2) of the Act authorizes the

Minister, where he considers it "reasonable and necessary to lessen the risk
of an escape or spill", to order a person who has "possession, charge or
control" of a polluting substance to "construct, alter or acquire at the
person's expense any works, or carry out at the person's expense any
measures that the Minister considers reasonable and necessary to prevent
or abate an escape or spill of the substance."4

Section 22 provides the second important order power. Where the
contaminated site is actually "causing pollution". a manager may under
section 22 of the Act "...order the person who had possession charge or
control of the substance at the time it escaped or was emitted, spilled,
dumped, discharged, abandoned or introduced into the environment...", or
any other person who caused or authorized the pollution, to abate the
pollution,s
The scope of S. 22 was recently increased by Bill 68 which now also enables
a manager to order abatement by the person who owns or occupies the land
on which the substance is located or on which the substance was located
immediately before it escaped or was emitted, spilled, dumped, discharged,
abandoned or introduced into the environment.

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A "polluting substance" is defined to mean "...any substance,

whether gaseous, liquid or solid, that could, in the opinion of the
Minister, substantially impair the usefulness of land, water or air
if it were to escape into the air, or were spilled on or were to
escape onto any land or into any body of water."

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Section I of the Act defines "pollution" to mean; "...the presence
in the environment of substances or contaminants that
substantially alter or impair the usefulness of the environment;"
the term "environment" is defined to include air, land and
water.

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ln addition to abating pollution, the manager may also (pursuant to Bill 68,
which was put into legal force in September, 1990) order the affected
person to carry out remediation in accordance with any criteria established
by the director and any additional requirements specified by the manager.
2. Special Waste Regulation
The Special Waste Retrulation, B.C.Reg. 63/88, introduced in 1988, contains

the principal siting, performance and operating standards for special waste
facilities as weil as defining the administrative requirements for

transporting, storing and disposing of special waste.s Amendments are
contemplated shortly.

The Environment Management Act: Environmental Emergencies and
protection

3.

The Environment Manatrement Act, SBC 1981, c. 14 allows the province to
deal with environmental emergencies, and thus serves as a basis of authority
for the provincial management of contaminated sites. The following

provisions are now available to the provincial government:

Section 5 - if the Minister of the Environment considers that an
environmental emergency7 exists and immediate action is
necessaiy to prevent, lessen or control any hazard that the
emergency presents, he may declare an environmental
emergency and order any person to provide labour, services,
material, equipment or facilities or to allow the use of land for
the purpose of preventing, lessening or controlling the hazard
presented by the emergency.

Section 6 the Minister of the environment may certify that
money is required for immediate response to an environmental
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"Special waste" is defined in the Regulation to include dangerous
goods that are no longer used for their original purpose and that
are recyclable or intended for treatment or disposal, waste oil,
waste asbestos, waste pest control product containers and
wastes containing pest control products, and leachable wastes."

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The Act defines "environmental emergency" in section 1(1) to
mean an occurrence or natural disaster that affects the
environment and includes a flood, a landslide, and "...a spill or
leakage of oil or of a poisonous or dangerous substance."

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emergency. This money may be paid out of the consolidated
revenue fund, and is a "...debt due to the government
recoverable...from the person whose act or neglect caused or
who authorized the events that caused the environmental
emergency in proportions the court determines" pursuant to
section 6(3).

Section 4 the Minister may declare in writing that an existing
or proposed work, or undertaking, or product use or resource
use has or potentially has a detrimental environment impact.
Having made such a declaration the Minister may then make an
interim environmental protection order restricting, modifying
or prohibiting operation of the work or undertaking, or the use
of the product or resource. These interim orders may require
the person affected to do anything specified in the order for a
period not exceeding 15 days; the Lieutenant Governor in
Council may also make such an order either permanently or for a
specified period.
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4. Land Title Act

Under Section 215 of the Land Title Act, the provincial or local government
may require the owner or developer to register, on the title to the land, a
covenant restricting uses of the land. A section 215 covenant. for example,
has been used on several occasions by the piovincial government to prevent
the use of land known to be contaminated at James Island and Big Bend.
Section 320.1 of the Land Title Act provides that the Director of the Waste
Management Branch may file on the title of contaminated property, a notice
specifying the nature of the contamination and the estimated period of
contamination.
5. Local Government Bylaws and PoHcles

The Municioal Act and the Vancouver Charter enable municipalities in
British Columbia to adopt a wide range of bylaws and policies which could
affect the rights and duties of owners of contaminated land. Some of the
important provisions of the Municipal Act include:

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Section 932 gives local governments the power to pass bylaws to
prevent, abate and prohibit nuisances. and to provide for the
recovery of the costs of abatement of nuisances from the person

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causing the nuisance or other persons described in the bylaw;
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Section 936 gives the municipal council the authority to declare
a 'nuisance'nd order that it be removed or othenvise dealt with
by its owner, and, if the owner fails to do so, the council may
take steps to abate the nuisance on its own initiative;s
Section 734 - provides that the municipality may "for the health,
safety and protection of persons and property", and subject to
the Health h-c, regulate all aspects of the construction,
alteration, repair or demolition of buildings and structures,
including imposing a requirement to hold a building permit
before commencing construction;

Section 734(2) provides that where the construction is on land
subject to flooding or some other natural disaster, a building
inspector may require the owner of land to provide him with a
report "that the land may be used safely for the use intended."

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Section 692 - gives local governments the general authority to
regulate persons, their premises and their activities 'to further
the care, protection, promotion and preservation of the health of
the inhabitants of the municipality', and to require a person
remedy or remove the unsanitary conditions for which he is
responsible or which exist on property owned, occupied or
controlled by him. All regulations made by or contained in these
bylaws are not valid until approved by the Minister of Health.
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Municinal Act and the Vancouver Charter also authorize local
government officials to exercise delegated powers respecting the approval of
subdivision plans. Section 83 et seq. of the provincial Land Titles Act,
R.S.B.C. 1979, c. 219 provide for subdivision plan approval by an "approving
officer". This approval power has been delegated to local governments; the
approving officer is a designated municipal official.
Section 85(3) of the Land Title Act provides that the approving officer may
refuse to approve the subdivision plan if he considers that the deposit of the
plan is against the 'public interest'. In particular, section 86 (1)(c](vi) gives
the approving officer the discretion to refuse to approve the subdivision plan
if after due consideration of "all available environmental impact and planning
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While these provisions are similar to those contained in the
provincial Health Act, the power to abate nuisances contained in
the Municioal A~c is not restricted to nuisances which endanger
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studies", the approving officer considers that the "anticipated development
of the subdivision would adversely affect the natura! environment to an
unacceptable level".
Finally, it should be noted that the City of Vancouver has reviewed the
difficulties of regulating contaminated sites from a municipal perspective
and adopted a number of interim policies, For example these policies
deal
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APPENDIX 2: OTHER IIURISDICTIONS

I. The U.S. Approach
The Love Canal problem in New York precipitated aggressive new
legislation, in 1980, to identify and clean up contaminated land. The U.S.
Congress took the first step when it adopted the Comnrehensive
Environmental Resnonse. Comnensation and Liabilitv Act (CERCLA),or
Superfund) in 1980. CERCLA provided the federal government with the
mandate to remove or clean-up abandoned and inactive hazardous waste
sites and to provide federal assistartce in toxic emergencies.
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the present owner or operator of the site;
any past owner or operator who owned or operated the site at
the time that the hazardous substance was deposited on the site;
any person (generator) who arranged to have his own waste
taken to site for disposal or treatment; and
any person who transported the hazardous substance to the site,
if that person seiected the site.

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'absolute'iability -- that is, unlike 'strict'iability, a

defence of due diligence does not avail. With a due diligence defence,
defendants could escape liability if they prove that all reasonable steps were
taken to prevent the occurrence (e.g., they used commonly-accepted
technology to handle waste). U.S. legislators recognized that the 'due
diligence'efence would often prevail, and thus significantly limit the
contribution by polluting industries to the cleanup costs.

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The legislation is clearly retroactive. It is immaterial that pollution occurred
in the absence of, or in compliance with, prohibitions. In fact, Congress
viewed retroactive liability as essential for dealing with the widespread
contamination which predated the introduction of environmental controls in
the 1960s and 1970s.
CERCLA imposes

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Liability under CERCLA is triggered by a release or threatened release of a
hazardous substance into the environment which causes the government to
incur expenses or "response costs" cleaning up the site. The law imposes
strict requirements for reporting releases or threatened releases, thus
enabling government to determine where a response is necessary. A central
feature of CERCLA is the establishment of an evolving National Priorities List
which lists, on the basis of reported information, sites of greatest concern.
Liability under CERCLA is expressly imposed on four classes of persons:

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The courts have construed CERCLA to impose joint and several liability
between those responsible under the Act. The result is that a party that
contributed a minor portion of the hazardous substance may, under certain
circumstances, be subject to liability for the enUre clean-up costs. The
courts have stated that the overriding purpose of CERCLA was to achieve
clean-ups, and it was not the intent of the legislation to direct the

conceptually difficult task of dissecting the respective (proportional)
contributions of the many parties which may have some connection to the

site.

It should be noted that CERCLA (and similar state legislation) provides some
relief. Important sources of relief occur in the following circumstances;

innocent Dronertv owners - this defence avails where the
person, at the time of acquisition, "did not know and had no
reason to know that any hazardous substance which is the
subject of the release or threatened release was disposed of on,
in, or at the facility," or where the person acquired it by
inheritance or bequest: and

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minimus (or minor) contributors as soon as possible in any
settlement proceedings.

Most U.S. states have adopted CERCLA-type legislation to cover those sites
which are not covered by the federal program. State legislation generally
contains provisions very similar to CERCLA, notably the 'responsible
absolute, joint, and several liability. Some states in fact go further than
CERCLA. For example, New Jersey's Environmental Clean UD Resoonsibilitv
A~ requires that prior to the sale of industrial land or the closing of a
business the vendor or owner of the business must assure the state'
Department of Environmental Protection that there has been no release of a
hazardous substance on the site. lf contamination has occurred, an approved
remediation program must be undertaken prior to the aale or closing of the
business. Less onerous variations of the New Jersey models have been
adopted in other states. including Washington and California, but have had
the similar practical result of compelling detailed disclosures by vendors
prior to a sale of property. This trend to vendor disclosure has significantly
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CERCLA recognizes that in certain instances, the liable parties would not be
able to fund the entire clean-up. To fully fund the clean-up bill, Congress
instituted a tax on the chemical industry, past and present. to pay for the
costs cleaning up inactive hazardous waste sites. A 'Superfund'as
established to collect the tax.

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altered the common law rule of 'buyer beware'n real estate transactions.
Moreover, the spectre of CERCLA liability compels purchasers to insist on
detailed vendor disclosures in order to preserve the 'innocent

owner'efence.

2. Ontario's Approach

While Ontario's approach to contaminated land approximates B.C,'s it differs
in several respects. For one, Ontario has adopted de-commissioning
guidelines. (" Guidelines for the Decommissioning and Clean-up of Sites in
Ontario" ) which apply to all provincially, municipally, and privately owned
sites and facilities to be closed down at which environmental contaminauon
may have taken place.

Where unwilling to meet the Ministry's decommissioning or site clean-up
objectives or time frames, enforcement is achieved by rigorous application of
broadly-worded order powers.

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Part 9 of Ontario's Environmental Protection Act dramatically restructures
the rules of liability and compensation in the context of "spills" (which,
given the broad definition of "spills", could apply to releases from
contaminated sites). In particular, absolute liability was imposed on owners
and controllers of a spilled pollutant in respect of the costs and expenses
incurred by the government and other persons. The more conventional
strict liability (which imports the defence of due diligence) was imposed on
owners and controllers for loss and damage incurred as a direct result of a
spill.

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Ontario's ~Ga Hand(intr Act alters the common law rule of 'bu„=er-beware'y
requiring a land owner, upon the sale or lease of property, disclose to a
prospective purchaser or lessee the existence of underground storage tanks.
The owner must also provide the purchaser or lessee with proof that the
tanks are in compliance with certain provisions of the regulations
promulgated under the Act.
3. guebec's Approach

In 1988, the Province of Quebec announced a "Contaminated Sites
Rehabilitation Policy4 to deal with the problem of contaminated sites in the
province. The policy is designed to allow the recovery of former industrial
sites with a view to ensuring that the quality of the soil is compatible with
the proposed use to which the land is put, A feature of this policy is that the
Ministry of Environment relies on local government to identify
contaminated sites and make referrals to provincial authorities.
Contaminated Sites teglstatlon Discussion Paper

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In these instances the various
ntribute to the costs of clean-up.
to draw up a clean-up program
on with municipalities each year.
il contamination and outlines a

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Environmental Law Research Foundatio
City of Vancouver, Manadier's Renort, Jan. 12, 1990.

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Epstein, S.L., L. Brown, and C. Pope. Hazardous Waste in America, San
Francisco: Sierra Club Books, 1982,
Glenn, W., D. Shier, K. Sisson, and J. Willms, Toxic Real Estate Manual,
Corpus Information Services: Toronto, 1989.

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Huestis, L., et al, Contaminated Sites Manadrement in the Province of British
Columbia: A Review of Provincial Roles and Resnonsibilities, prepared for
Ministry of Environment, Province of British Columbia, 1990.
Ministry of Environment, Contaminated Sites Rehabilitation Policv, Provinc.e
of Quebec, 1988.
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Columbia, 1990.

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Russell, J., and B. Andrews, Toxic Real Estate in British Columbia: Draft
Statute for Discussion, West Coast Environmental Law Research Foundation:
Vancouver, 1990,
Toxic Real Estate, The Continuing Legal Education Society of British

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Ministry of Environment, Criteria for Manadiind] Contaminated Sites in
British Columbia IDraftl, Province of British Columbia, 1990.

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Municipal Acg, R.S,B.C. 1979, c. 290.
Snecial Waste Retlulation, B.C. Reg. 63/88.
Waste Management Act, S.B.C. 1982, c.41.

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BACKGROUND 6 CONMENYS d

The attached letter was received from Recycling Council of British Columbia

regarding recycling programs in Port Coquitlam. As it appears they have
really not been informed of the full extent of Port Coquitlam's Recycling
Program, I am suggesting we send the attached letter which outlines the broad
scope and scale of our program.

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Deputy City Engineer

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THE CORPORATION OF THE
CITY OF PORT COOUITLAM

M

EMORAlIDUM

TO:

Environmental Protection Committee

COPY:

Kip Gaudry, P.Eng.

DATE:

March 6, 1991

Deputy Engineer
FROM:

Danielle Page
Administration

RE:

Attached Correspondence — Recycling

His Worship IIayox Traboulay has asked that this correspondence be referred to
the Environmental Protection Committee for reply.

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rncerely,
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Jill Gillett
Coordinator.
Recycling

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TELEPHONE'41 "541 I
I AX. 464 3524

2520 SHAUCHNESSY STREET
PORT COOUITLAFL S.C.
VSC 2AS
OUR

FILE

March 11, 1991

Recycling Council of British Columbia
102 — 1525 West 8th Avenue
Vancouver, B .C.
V6J 1T5

Attentioni

Jill Gillett

Recycling Coordinator

Dear Ms. Gillett:
PORT COQUITLAM RECYCLIMG PROGRAM

RE

Further to your letter of February 27, 1991 we are pleased to advise that
the City of Port Coquitlam has already embarked on a very ambitious recycling
program which is due to kick off June 1, 1991. We will be providingbe our
will
residents with curb side pick up of recyclable materials. We
recyclable
all
will
place
residents
Bag"
where
"Blue
system
utilizing the
materials in the same bag aud place it at the curb side for our trucks to pick
up

Concurrent with the 1991 recycliug program we will be experimenting with ~
piles
the collection of compostsble materials and developing ourforownallcompost
compostable
in
1992
curb
side
pfck
up
full
institute
a
We do hope to

PN

materials.

service single family residences and
Initially our recycling program will
industrial, commercial and
residences,
multi-family
on
to
bring
then we plan
equipment permit.
and
physical
institutional facilities as soon as budgets

IPi;.

'gl/i

(

be pleased if you would provide your callers with the name of the
City of Port Coquitlam recycling coordinator. Re is Mr. Andrew de Boer of the
Engineering Department and can be reached at 941-5411.
We would

Immi Slim I 5I

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21

Alderman J. Keryluk

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Mayor.

Traboulay

Alderman Talbot
Kip Gaudry P. EnJ.I
Deputy City Engineer

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THE CORPORATION OP THE

CITV OF PORT COQUITLAM

TO:

Environmental Protection Committee

FROM:

Kip Gaudry, P. Eng.,
Deputy City Engineer

SUB JEC T:

TROPOSPHERIC OZONE FORECASTING SERVICE

DATE:

March 11, 1991

RECOMMENDATION

Por inf ormation.
BACKGROUND

&

COMMENTS.

Committee will recall that in December we forwarded our recommendation to
Council for support of the lropospberic Ozone Forecasting Service. The

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Community
Education on
Environment Br
Development

CEED Centre
11739 223rd Street

Maple Ridge. B.C.
V2X EX4 rtrt3-2229

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Mayor Len Traboulay
City Hall

2580 Shaughnessy Street
Port Coquitlam, B.C.

January 29, 1991
Dear Mr. Mayor:

Please find enclosed a letter from Cliff Serwa; Minister Df
Environment regarding our requested "Tropospheric Ozone
Forecasting Service" as a mechanism for reducing the use of
vehicles on days of high pollution forecast.
keep you abreast of our progress in ensuring
that environmental information is available to the population
so that we can make the appropriate decision on our
endeavours to improve the quality of life in the Fraser Valley.
I

will continue to

Yours truly,

lais
Executive Director

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Ministry of

Province of
British Columbia

Environment

parliament Suiidings
Victoria
Bnlish Columbia

vsv txs
OFFICE OF THE
MINISTER

January 8, 1991
Mz. Don Mallais

Coordinator

—

CEED Centre

11739 223rd Street
Maple Ridge, British Columbia
V2X 5X4

Dear Mr. Mallaist
Thartk you for your recent correspondence regartiing a proposed
tropospheric ozone forecast foz the Lower Eraser Valley.

a forecast
Current discussions are focused on providing such
would
which
plan,
management
as part of a zegional episode
potentially
of
periods
during
reductions
emission
include
poor air quality.
in
The Ministry of Environment is currently involved
Vancouver
Greater
the
and
Canada
discussions with Environment
of
reference
of
terms
the
broaden
to
(GVRD)
District
Regional
This
Committee.
Steering
the present Lower Mainland Oxidant
mechanism for a variety of
will provide a coordinating
of the NOx/VOC
initiatives, including implementation
principle by the
in
approved
Management Plan for Canada,
on
Environment
of
the
Ministers
of
Council
Canadian
November 29, 1990.
Harry Vogt,
I have directed your correspondence to Mr.
his information;
for
Branch,
Acting Director, Air Management
on this
information
further
provide
any
I suggest that you

subject to him directly.
Mainland will
The improvement of air quality in the Lower appreciate
your
I
and
efforts,
require our collective best matter.
this
in
interest
society's

Cl

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Minister
cct Mr. Harry Vogt

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THE CORPORATION OF THE
CITY OF PORT COQUITLAM
MEMORANDUM

TO:

Environmental Protection Committee

FROM:

Kip Gaudry, P. Eng.,
Deputy City Engineer

SUBJECT:

ENVIRONMENTAL

ACH~

DATE:

March 11, 1991

AUAEDS

That the Environmental Protection Committee seek nominees for the various
Environmental Achievement Awards available from Environment Canada.
BACKGROUND g COMMENTS.

The Federal Environment Ministry has released details of their Environmental
Achievement Award system. There are six basic categories:

1. Non-prof it Or ganizat ion
For example:

Ducks Unlimited Canada

2. Outstanding Communications for Environmental Awareness
Open to a professional communicator in any medium such as the 1990
winner, Mr. David Zazzuci.

3. Corporate Environmental Leadership
— Cannot be a municipality
—

for manufacturing
a high quality product with minimal impact on the environment.

The 1990 award winner was Laminage Penna Ltd.

4. Life Time Achievement
Any individual Canadian is eligible
— The 1990 award winner was Dr. Andrew Thompson for his lifetime work as
a champion for environmental protection.

5. Environmental Leadership by a Municipality
The 1990 award winner was the Regional Municipality of Sudbury for its
environmental rehabilitst ion pro]ect.
—

6. Environmental Science Fair Project
- 1990 award winners were two high school students from Quebec for a
pro]ect on recycling disposable diapers.
Please note the deadline for submitting nominations is March 22, 1991.

C.F. (Kip) Gaudry, P. Eng.
Deputy City Engineer
CFG:ck

THE CORPORATION OF TIER
CITY OF PORT COQUITIAN

NENORANDUM
February 22, 1991

TO:

Hip Gaudry, P.Eng.
Deputy City Engineer

FROM:

Danielle Page
Administration

REI

Attached Materials from the Federal Mir!ister of the Environment

DATE:

His liorship IIayor Traboulay is referring the attached materials to the
Environmental Protection Committee, for consideration.

PO.,T COOOITLAM
ENG!NEE,I!!G DEPE

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CITY OI

T'EO o n

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Minister of the Environment

Miniatre de I'Environne'ment

a'

February 14, 1991

fhvrier 1991

Madame,'onsieur,
De plus,en plus de Canadiens se
prhoccupent de la qualite de
1'nvironnement, notamment en
raison de son influence, sur
leur santh et leur prosperite.
DSsireux, de rendre hommage A
des .personnes qui se sont
distinguSes dans la protection
et. la restauration, du'ilieu
'Canada

naturel, Environnement
dSCerne cette annrae encore des
prix d'excellence environnement.ale .

Je vous invite
vos
parvenir
candidature.

R

A

nous faire
en
mises

Dear Sfr/Madam:
The quality of'ur environment
'con'tinues to be of major
concern to Canadians across the
country.

's offering

this year,
Canada

Again

Envi'ronment

Environmental
to honour Canadians from
life who have made
all walks of efforts
.to protect
outstanding
and restore the natural world
which our r health and
on
prosperity depend'.
I hope you will submit a
Achievement'wards

.Le 14

.

nomination,

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Robert R..de Cotret

Ottataa, Canada K1A OH3

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THE CORPORATION OP THE
CITY OP PORT COQUITLAM
MENORANDDM

Environmental Protection Committee
FROM:

Kip Gaudry, P. Eng.,
Deputy City Engineer

SUB'ECT:

Re-Refined Motor Oil

DATE:

March 11, 1991

RECOMNEHDATION

That Council support the use of re-refined motor oil in City owned and

operated vehicles.

EACKGRODND A COMMENTS

several years marketed
crude
re-refined motor oil. Historically, it was more expensive than virgin
that
uow
understanding
It
is
our
users.
and,this deterred slot of potential
than
less
to
or
close
oil
is
motor
re-refin
d
the
for
rate
the current
equivalent rates for virgin crude.
that they are
In talking with Cord Voncina, Operations Manager, he indicates
the
to
City fleet in
motor
oil
re-refined
looking at a program of introducing
made their
and
research
their
completed
not
have
1991. At this point they
Mohawk Oil of North Vancouver have for the past

final plans.

C.F. (Klp) Gaudry, P. Eug.
Deputy City Engineer
CFG:ck

THE CORPORATION OP THE
CITY OP PORT COQUITLAH

MEMORANDUM
TO:

Kip Gaudry, P.Eng.
Engineering Department

COPY:

Alderman Keryluk
Alderman Talbot

FROM:

Bryan R. Kirk

RE:

Use of Re-refined Motor Oil in City Vehicles

DATE:

March 4, 1991

City Administrator

The attached article and note from Bram Hoogendoorn is being referred to the
Environmental Protection Committee for consideration.

Thank you for bringing this matter to my attention.

/dp

Att.

c.c.:

B. Hoogendoorn

C ITY OF PORT COQU ITLAM
(604) 941-5411

2580 SHAUGHNESSY STREET. PORT COOUITLAM VBC 2AB

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1HE CORPORATION OF THE
CITY OF PORT COQUITLAM

DATE:

TO&

B.R. Kirk

FROM:

C. F. (Kip) Gaudry, P. Eng.
Deputy City Engineer

SUB JECT;

ATTENDANCE AT EPC MEETING MARCH 12, 1991.

March 6, 1991

City Administrator

asks that
Chairman, Alderman Keryluk of the Environmental Protection Committee March
12,
for
5&00
p.m.,
scheduled
EPC
the
you attend the next meeting of
like
your
would
Committee
The
Room.
Meeting
Floor
Second
1991, in the
recycling program. For
assistance in clarifying their role in the overall
stage and major
conceptual
initial
the
example, now that we are passed
fall
to the Public
program
the
of
implementation
the
does
budgetting process,
Environmental
the
of
Works Committee? If so, what is the ongoing involvement
Protection Committee in the programy
for the meeting on
Since discussions with you would be the only agenda item
that we meet
and
Talbot
Keryluk
Alderman
that night, I am going to propose to March 11, 1991 at perhaps, 6&30
or 7& 00
on
Monday,
prior to Council Meeting
p.m. Please advise if either date is acceptable to you.

C.F. (Kip) Gaudry, P. Eng.
Deputy City Engineer
CFG&

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Alderman Keryluk
Alderman Talbot
I.R. Zahynacz, P. Eng.

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THE CORPORATION OF THE
CITY OF PORT COQUITI AM

MEMORANDUM
TO:

COPY:

C.F. (Kip) Gaudry, P.Eng.
Deputy City Engineer

DATE:

March 8, 1991

Mayor Traboulay

Alderman Keryluk
Alderman Talbot
Igor Zahynacz, P.Eng.
FROM:

B.R. Kirk

City Administrator

Attendance at Environmental Protection Committee (EPC) Meeting
(March 12, 1991)

I have discussed Alderman Keryluk's request that I attend the next EPC meeting
with His Worship Mayor Traboulay,
The Mayor is prepared to meet with the Chair of both Committees to clarify
their role in the overall recycling programme and has suggested that they
contact Danielle Page to arrange a mutually convenient date and time.