Canada: Who Is Responsible For Rehabilitation Under The Quebec Environment Quality Act?

A ruling of the Quebec Superior Court in Gagnon c Suncor Énergie inc.¹ that turns in part on the interpretation of ss 31.51 to 31.57 of the Quebec Environment Quality Act² specifies who is responsible for the characterization study and environmental rehabilitation required by these provisions.

The dispute

In a motion for a permanent injunction and damages, the owner of contaminated land on which a service station and a mechanical service garage had been operated sought to have Suncor Energy Inc. support the cost of decontaminating his entire property, alleging that Suncor had obligations under the Environment Quality Act as well as a contractual obligation to do so. Suncor previously owned three underground storage tanks on the site for the use of the service station and had supplied the operator of the service station with petroleum products, but at no time was it the operator of the service station itself and it had no ties to the mechanical service garage.

The Environment Quality Act

• Under s 31.51 of the Act, "a person who permanently ceases an industrial or commercial activity of a category designated by regulation of the Government is required to perform a characterization study of the land on which the activity was carried on."
  
  Since Suncor was neither the owner nor the operator of the service station and it was never involved with the operations of the mechanical service garage, it did not "cease an industrial or commercial activity".
• Under s 31.52 of the Act, a person who, as owner or lessee or in any other capacity, has the custody of land in which contaminants are found in a concentration exceeding the regulatory limit values is required, on being informed of a serious risk of offsite contamination, to give immediate notice thereof in writing to the owner of the neighbouring land concerned, with a copy to the Minister.
  
  There was no evidence that Suncor ever had custody of the site.
• Under ss 31.53 and 31.54 of the Act, any person intending to change the use of land where an industrial or commercial activity of a category designated by regulation of the Government has been carried on is required to first perform a site characterization. Any change in the use of the land is subject to the Minister's approval of a rehabilitation plan if contaminants are present in the land in a concentration exceeding the regulatory limit values. For purposes of these provisions, the carrying on of an activity different from the activity previously carried on constitutes a change in the use of the land.
  
  Since Suncor was never the owner of the land nor the operator of the service station or the garage and consequently never carried on any activity on the site, it cannot have "changed the use of the land."
• Under s 31.57 of the Act, the requirement to submit a rehabilitation plan to the Minister for approval also applies to any person intending to rehabilitate all or any part of contaminated land on a voluntary basis and to leave contaminants in the land in a concentration exceeding the regulatory limit values.
  
  Suncor did not leave contaminants in the land.

Finally, the Court took cognizance in its ruling of the testimony of an official from the Quebec Department of Sustainable Development, Environment and Parks³ to the effect that s 31.51.1 of the Act, which places certain obligations on the owner or operator of a tank that is part of a petroleum equipment installation, is of no legal effect since there is no implementing regulation.

No obligation for Suncor under the Act

The Court found that Suncor had no obligation under the Act although it was the owner of the petroleum storage tanks on the site. Suncor's obligation to decontaminate was purely contractual and was fully discharged in the circumstances.

Footnotes

¹ Serge Gagnon c Suncor Énergie inc., 2014 QCCS 3669.

² CQLR c Q-2.

³ Now known as the Department of Sustainable Development, Environment and the Fight against Climate Change.

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