Precautionary Tale? BC Environmental Appeal Board Says 'Polluter-Pays' And 'Precautionary' Principles Not Applicable To The Permitting Process Under The BC Environmental Management Act

The British Columbia Court of Appeal in J.I. Properties Inc. v PPG Architectural Coatings Canada Ltd, 2015 BCCA 472 ("JI Properties") affirmed the "polluter pays" principle in the context of remediation cost recovery actions under the Environmental Management Act, SBC 2003, c 53 (the "EMA") However, in a recent decision by the BC Environmental Appeal Board it was held that neither the polluter pays nor precautionary principles apply to section 16 of the EMA which deals with granting permits for the discharge of waste.

In Toews v. British Columbia (Ministry of Environment) [2015] B.C.E.A. No. 25, the Environmental Appeal Board addressed, in part, the application of the precautionary principle and the polluter-pays principle to the interpretation of section 16 of the EMA which deals with granting permits for the discharge of waste. The Board confirmed that the polluter-pays principle was imported to Part 4 of EMA (i.e. the cost recovery framework) but refused to extend its application to section 16. The Board also distinguished the precautionary principle from a precautionary approach. The Board held that a cautious and technically rigorous approach should be adopted in assessing the potential risk of injury to human health and damage to the environment.

Facts

Between 1950 and 1954, Rio Tinto Alcan Inc. (formerly Aluminum Company of Canada) ("Rio Tinto"), established an aluminum smelter in Kitimat. Rio Tinto owned much of the land in the Kitimat valley and over time sold parcels to commercial and residential development. The residential lands retained an easement in favour of Rio Tinto allowing Rio Tinto the right to emit discharges into the air. Eventually, the Province moved to a "multi-media" approach to permitting, which resulted in a single authorization for permit holders to discharge different forms of waste. In 1999 Rio Tinto received a multi-media permit P2-00001 (the "Permit"), which authorized the discharge of effluent, emissions and waste. The permit specified a maximum daily discharge of 27 tons of SO2.

In or about 2007, Rio Tinto sought to amend the Permit in order to increase production at the Kitimat Smelter. In April 2013, pursuant to section 16 of the EMA, the Director amended the allowable emissions and increased the permissible amount to 42 metric tons per day subject to Rio Tinto's submission and implementation of an Environmental Effects Monitoring Plan ("EEMP") (the "2013 Amendment"). The Director confirmed specific...