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Appeals from the Environmental Management Act
/ Waste Management Act
2009
Decision Date: November 25,
2009
Panel: Alan Andison
Keywords:
Environmental
Management Act – s. 104; stay; preliminary decision;
RJR-MacDonald Inc. v. Canada (Attorney
General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)
Ermes Culos and four other persons (the “Applicants”)
appealed a decision of the Director, Environmental
Management Act, Ministry of Environment, to amend an
operational certificate. The amended operational
certificate authorizes the
Village of Cache Creek and Wastech Services Ltd. (“Wastech”)
to manage municipal solid waste at a sanitary landfill
located in Cache Creek, BC. Among other things, the
amendments authorize an expansion of the landfill’s
footprint to include an additional 6.7 hectare area
which is referred to as “Annex A”, located adjacent to
the existing landfill.
The Applicants requested a
stay of the Director’s decision pending the Board’s
decision on the merits of the appeal.
In determining
whether a stay ought to be granted, the Board applied
the three-part test set out in RJR-MacDonald Inc. v.
Canada (Attorney General). With respect to the
first stage of the test, the Board found that the
Applicants had raised serious issues to be tried which
were not frivolous, vexatious or pure questions of law.
Regarding the second part of the test, the Board found
that the Applicants failed to establish that their
interests in the environment and human health would
suffer irreparable harm pending the outcome of the
appeal unless a stay was granted. The Board found that
there was no evidence that allowing the construction of
Annex A would cause irreparable harm. The Board also
found that allowing the operation of Annex A before it
overlaps with the existing landfill would not cause
irreparable harm. There was conflicting evidence on the
question of whether the use of Annex A will cause
environmental harm once it overlaps with the existing
landfill, but the Board held that it would be
inappropriate to decide that question in a preliminary
application, as it would amount to deciding the merits
of the appeal, and in any case the appeal would likely
be decided before the overlap occurred.
Turning to the third
part of the test, the Board found that the balance of
convenience weighed in favour of denying a stay. The
Board held that the Applicants had not demonstrated any
harm to the environment or human health if a stay was
denied, whereas granting a stay could interrupt
Wastech’s business operations and affect its financial
interests. In addition, for the limited purpose of
deciding the stay application, the Board found that many
of the Director’s amendments appear to provide for the
protection of the environment and human health, which
are the very interests that the Applicants seek to
protect.
Accordingly, the application for a stay was denied.
Decision Date: July 14, 2009
Panel: David Searle
Keywords:
Environmental Management Act –
ss. 40, 41; Contaminated Sites Regulation – ss.
6, 7(1); contaminated site; groundwater contamination;
detailed site investigation; preliminary site
investigation; subdivision
CNT Holdings Inc. (the “Appellant”) appealed a decision
of the Director, Environmental Management Act,
Ministry
of Environment, directing the Appellant to conduct a
detailed site investigation of two lots it owns near
Williams Lake, BC.
The lots consisted mainly of undeveloped land which was
zoned for rural use. A small portion of one lot was
occupied by a market and was zoned for rural and
commercial use. Neither were zoned for residential
use. For
many years previous, starting in the mid-1950’s, the
market had been operated as a convenience store and gas
bar. In 1989, the Ministry issued a pollution abatement
order to a previous owner of the gas bar, to address
groundwater contamination originating from the gas bar.
In 1990, the gas bar was decommissioned and two
underground storage tanks were removed. Contaminated
soil under the gas pumps was removed to a depth of seven
metres, but removal beyond that was considered
impractical. Groundwater remediation was also
considered impractical. New groundwater wells were
constructed on adjacent properties that had been
contaminated by pollutants which migrated from the gas
bar.
In 2004, the Appellant purchased the lots. The
Appellant was aware of the previous environmental
concerns. In 2007, the Appellant applied for rezoning
and subdivision of the lots. The Appellant sought to
subdivide the two lots into six lots, five of which
would be developed for residential use and would,
therefore,
require rezoning. The market would remain on the sixth
lot. The Appellant’s rezoning application was referred
to the Ministry in October 2007, and the Ministry
provided no comments. As part of the subdivision
application process, the Appellant prepared a site
profile which was forwarded to the Ministry, as required
by the Environmental Management Act and the
Contaminated Sites Regulation. In March 2008, the
Director issued his decision requiring a detailed site
profile for both lots. This requirement suspended any
approval of the Appellant’s subdivision application.
The Appellant appealed the Director’s decision on the
basis that requiring a detailed site profile was unfair
and unreasonable. The
Appellant argued that the Ministry should have advised
it early in the rezoning process if the Ministry had
concerns about the property. The Appellant submitted
that it would not have proceeded with the rezoning and
subdivision, and incurred further costs, if it had known
that a detailed site investigation would be required,
because the cost of preparing a detailed site
investigation will make the subdivision non-economical.
The Appellant also submitted that, as part of the
rezoning application, it completed a geotechnical
investigation on all six proposed lots to determine
their suitability for sewage disposal systems, and no
indication of contamination was found.
The Board found that the Director has authority under
the Environmental Management Act and the
Contaminated Sites Regulation to require a detailed
site investigation, and that he properly exercised his
discretion by requiring a detailed site profile in this
case. Specifically, the Board held that the evidence
showed that the contamination caused by the former gas
bar was not fully remediated by the previous owner.
Although the Ministry’s Contaminated Site Registry
listed the site’s status as “inactive – no further
action”, the Registry also indicated that the site had
not gone through the entire remediation process and the
Ministry could require further assessment or remediation
in the future, despite the fact that it required no
further action in 2000 when the notation was made. The
Board also found that the geotechnical investigation of
the lots’ suitability for sewage disposal systems was
not deep enough to be conclusive regarding the historic
contamination. Further, the Board found that it was
reasonable for the Ministry not to comment on the
rezoning application, because there is no legal
requirement for the Ministry to do so. The statutory
requirement to submit a site profile to the Director,
and for the Director to decide whether further
information is needed, applies to subdivision
applications. Furthermore, the Board noted that the
legislation makes the Appellant, as the owner of the
site, responsible for conducting the detailed site
investigation, regardless of the fact that the
contamination was originally caused by someone else.
In these circumstances, the Board agreed with the
Director that a detailed site investigation is
warranted. However, the Board found that the Director’s
decision was too broad, because the evidence of
groundwater flows indicates that the area of concern is
limited to the former gas bar site, which is proposed
lot 1, and does not include lots 2 to 6.
In conclusion, the Board found that the matter should be
remitted back to the Director with directions to limit
the detailed site investigation to lot 1 of the proposed
subdivision, and that he consider whether an
investigation of adjacent lands should be conducted.
Accordingly, the appeal was allowed, in part.
Decision Date: May 7, 2009
Panel: Alan Andison
Keywords:
consent order; air emissions; permit
Delta Cedar Products
Ltd. (“Delta”) appealed a decision by the District
Director of the Greater Vancouver Regional District (the
“District Director”) to amend Delta’s permit that
authorizes the discharge of particulate emissions from a
wood-fired boiler at Delta’s sawmill located in Delta,
BC. In the
amendment, the District Director required Delta to
reduce certain emission levels, undertake certain works,
and submit certain reports, all by specific dates. Delta
appealed on the grounds that the amendments were
unreasonable, that the District Director failed to
consider the financial impacts of the amendments on
Delta, and that the District Director failed to give
reasons for the amendments.
Before the appeal
was heard by the Board, Delta and the District Director
reached an agreement to settle the appeal.
By consent of the
parties, the Board ordered that the amendments were
confirmed with certain exceptions. Most of the
exceptions pertained to the dates for compliance with
the amendments, such that Delta was given additional
time before it was required to comply with the
amendments.
Accordingly, the
appeal was allowed, in part.
Decision Date: April 9, 2009
Panel: David H. Searle, Roberta Gerath, R.G. Holtby
Keywords:
Waste Management Act – ss. 1 –
definition of “effluent”, 13; Environmental
Management Act - s. 140; Interpretation Act –
ss. 35, 36; amended permit; sewage lagoon; groundwater;
burden of proof; jurisdiction; precautionary approach;
transitional provisions
The City of Cranbrook (“Cranbrook”)
has a sewage
treatment system that includes two storage lagoons.
Treated effluent is pumped to the lagoons for storage,
and the effluent is disposed via spray irrigation on
agricultural fields located primarily southeast of the
lagoons. This operation is authorized by a waste permit
that was issued to Cranbrook in 1975.
In
1997, Canadian Pacific Railway (“CPR”) experienced some
instability at its tracks approximately 3 miles north of
Cranbrook’s sewage lagoons. CPR retained an engineering
firm to review the track instability and prepare a
geotechnical report. That report concluded that
effluent seepage from Cranbrook’s lagoon #2 poses a risk
to the stability of the tracks when the elevation of the
effluent in the lagoon reaches 824 metres above sea
level (“ASL”) and higher because it causes the natural
groundwater flow to reverse and flow towards the
tracks.
In
April 1999, the Assistant Regional Waste Manager (the
“Assistant Manager”), Ministry of Environment, Lands and
Parks (now the Ministry of Environment), amended
Cranbrook’s waste permit. The amendments include a
requirement that Cranbrook manage lagoon #2 so that the
effluent level does not exceed 824 metres ASL.
Cranbrook appealed the amendments and requested that the
Board set aside the condition that sets the maximum
elevation of lagoon #2 at 824 metres ASL, or
alternatively, vary the amendments by increasing the
maximum elevation for lagoon #2 to 827.5 metres ASL. In
the further alternative, Cranbrook requested that it be
permitted to construct an outfall from the lagoons to a
nearby river. Cranbrook also requested a stay of the
amendments, which the Board denied (City of Cranbrook
v. Assistant Regional Waste Manager,
Appeal No. 99-WAS-23(a),
May 10, 1999).
Ms.
Ridge applied to the Board on behalf of the Fort Steele
Residents (the “Residents”) for participant status in
the appeal, based on their concerns that Cranbrook’s
spray irrigation operation is contaminating
groundwater. The Board granted the Residents limited
participant status (City of Cranbrook v.
Assistant Regional Waste Manager,
Appeal No.
99-WAS-23(b), August 20, 2002).
At the
parties’ request, the hearing of the appeal was
adjourned several times to allow the parties time to
attempt to negotiate a solution. At the parties’
request, the Board also attempted to mediate a
resolution to the appeal. Ultimately, the parties were
unable to reach an agreement, and they requested that
the Board adjudicate the appeal.
In
addition to the issue of the appropriate maximum
elevation for the effluent in lagoon #2, the parties
raised legal issues regarding: the Board’s jurisdiction
to make findings regarding the Residents’ evidence about
Cranbrook’s spray irrigation system; the legal test for
deciding the appropriate maximum elevation of lagoon #2;
the burden of proof; and, the legislation that applies
to the appeal.
The
Board found that it is not bound by strict rules of
evidence, and it has jurisdiction to consider new
evidence presented by the Residents that was not before
the Assistant Manager, to the extent that the evidence
is relevant to the permit amendments. It is not unfair
for the Board to consider the relevant portions of that
evidence, because the parties were given an opportunity
to respond to the evidence, although they declined to do
so.
Additionally, the Board found that, contrary to
Cranbrook’s submissions, the legal threshold for the
Assistant Manager to exercise his discretion to amend
the permit is not “reasonable certainty” that exceeding
824 metres ASL causes an adverse effect on the
environment. Rather, it is consistent with the relevant
statutory provisions, and previous Board decisions, to
take a cautious
approach in assessing the potential risks associated
with the elevation of lagoon
#2,
aimed at proactively preventing harm to the environment.
Similarly, the Board held that the evidentiary threshold
for the Assistant Manager to exercise his amending
powers is not “reasonable certainty”, but rather a
“balance of probabilities”. Moreover, the Board found
that Cranbrook is responsible for leading sufficient
evidence for the Board to conclude, on a balance of
probabilities, that allowing the elevation of lagoon #2
to exceed 824 metres ASL will not create an unreasonable
risk of harm to the environment. It is insufficient for
Cranbrook to simply seek to discredit the Assistant
Manager’s evidence, or argue that CPR has not proved its
case.
Regarding the applicable legislation, the Board noted
that when the Assistant Manager issued his decision, the
Waste Management Act empowered him to amend the
permit, and it also provided Cranbrook with a right of
appeal. At that time, the Environment Management Act
established the Board’s powers and procedures. In 2004,
those Acts were repealed and the Environmental
Management Act, which regulates waste discharge and
contains the appeal provisions, came into force. Based
on the relevant transitional provisions and the
Interpretation Act, the Board found that the appeal
was continued under the Environmental Management Act,
but the Waste Management Act applies for the
purposes of considering the merits of the amendments.
The Board also found that it was beyond its
jurisdiction in this case to amend the permit to provide
for an outfall as requested by Cranbrook, and in any
case, there was insufficient information before the
Board to justify authorizing an outfall. The Board held
that Cranbrook should apply under the current
legislation if it wishes to install an outfall.
Finally, regarding the appropriate maximum elevation for
lagoon #2, the Board found that the evidence clearly
established, on a balance of probabilities, that the
limit of 824 metres ASL is justified. The Board
concluded that there was overwhelming evidence that
approximately 330,000 m3 of effluent escapes
from lagoon #2 to the groundwater annually. The Board
also found that there was sufficient evidence to
establish, on a balance of probabilities, that at
elevations exceeding 824 metres ASL, effluent migrates
underground to the CPR right of way. The evidence
indicated that some of the slope failures along CPR’s
tracks were caused by a combination of unusual events of
high precipitation and high ground water. The Board
held that the consequences of such failures are severe,
and the risk of failure should be reduced by limiting
the elevation of lagoon #2 so that seepage to the right
of way is eliminated. Consequently, the Board confirmed
the requirement in the amendments that the elevation of
lagoon #2 not exceed 824 metres ASL.
Regarding other aspects of the amended permit, the Board
remitted the matter back to the Assistant Manager (now
the Director) with a number of directions aimed at
finding ways to minimize effluent leakage to the
groundwater. The Board also recommended that the
Ministry attach appropriate conditions to Cranbrook’s
spray irrigation system.
Accordingly, the Board
dismissed the appeal, subject to certain directions.
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