In the matter of an appeal to the Environmental Appeal Board under section 44 of the Waste Management Act, R.S.B.C. 1996, c. 482.
| BETWEEN: | Houston Forest Products Co. Northwood Inc. West Fraser Mills Ltd. Laurie Mutschke and Emily Dodd Dave Stevens Dr. Elizabeth Bastian | APPELLANT | |
| AND: | Assistant Regional Waste Manager | RESPONDENT | |
| BEFORE: | A Panel of the Environmental Appeal Board | ||
| Toby Vigod, Chair |
| DATE OF HEARING: | Conducted by way of written submissions concluded on April 22, 1999 |
| APPEARING: | For the Appellants: | Gordon Gill |
| Houston Forest Products Co. | Nils Daugulis, Counsel | |
| Northwood Inc.: | Peter Voith, Counsel | |
| West Fraser Mills Ltd. | Paul Cassidy | |
| Laurie Mutschke | Tim Howard, Counsel | |
| Dave Stevens | Tim Howard, Counsel | |
| Dr. Elizabeth Bastian | Tim Howard, Counsel | |
| For the Respondent: | Dennis Doyle, Counsel | |
APPLICATION TO JOIN/CONSOLIDATE THE APPEALS
The Assistant Regional Waste Manager ("the Assistant Manager") made three separate decisions to amend the respective waste permits of Houston Forest Products Co. ("Houston"), Northwood Inc. ("Northwood"), and West Fraser Mills Ltd. ("West Fraser") (collectively, "the Corporate Appellants"). Among other things, the amendments place largely corresponding emissions and monitoring requirements on the Corporate Appellants’ use of their wood waste incinerators, known as "beehive burners". Each of the Corporate Appellants individually appealed the Assistant Manager’s decision to amend its waste permit, each taking issue with some of the beehive burner amendments. Dr. Elizabeth Bastian, Dave Stevens, and Laurie Mutschke, on behalf of herself and infant Emily Dodd (collectively, "the Individual Appellants"), also appealed the same three decisions as they relate to the permitting of the beehive burners.
This is an application by the Individual Appellants to have all six appeals heard together, or "consolidated". Counsel for the Individual Appellants makes it clear that he is not using the term "consolidate" in the civil litigation sense (i.e. to fuse them into a single appeal, effectively doing away with the separate identity of each proceeding). Rather, his proposal is to achieve greater efficiency and consistency by arranging to address the issues raised in the six separate appeals through a single hearing process.
BACKGROUND
West Fraser operates a sawmill and planer mill complex in Smithers, B.C. Houston and Northwood operate similar mill complexes in the community of Houston, approximately 60 kilometres south of Smithers in the Bulkley Valley. Pursuant to the Waste Management Act, each of the Corporate Appellants has a waste permit that authorizes it to discharge, into the air, contaminants from its mill, including its beehive burner.
On January 26, 1999, the Assistant Manager amended the permits issued to both Houston and West Fraser, and on January 27, 1999, the Assistant Manager amended Northwood’s permit. The amendments to each permit, as they effect the operation of the beehive burners, are substantially similar. Specifically, the amendments to each permit relate to the rate and characteristics of the air emissions from the beehive burner; the upgrading of burner system (including the capacity to regulate the flow of woodwaste to the beehive burner); semi-annual progress reporting; environmental protection planning; and the provision for visual monitoring of the burner operation. It is these amendments that are variously the subject of these appeals.
On February 5, 1999, Houston appealed the Assistant Manager’s decision to amend its permit. Houston seeks an order deleting the amendments that require the upgrading of the beehive burner to regulate the feed of fuel into the burner. Houston also seeks to delete the amendments requiring it to submit semi-annual progress reports to the Regional Waste Manager in a format suitable for publication and distribution; and to implement a continuous emissions monitoring system consisting of a video camera and a computer system which will enable Pollution Prevention staff and members of the general public to view real-time video images of the beehive burner emissions on the Internet.
On February 18, 1999, Northwood appealed the decision to amend its permit. Northwood takes issue with the amendments in respect of the maximum rate and opacity of the discharge from its burner, and the requirement that it submit Environmental Protection Plans as may be requested by the Regional Waste Manager.
Like Houston, Northwood also seeks to have deleted from its permit the amendments requiring it to submit semi-annual progress reports, to install a continuous video and computer monitoring system, and to implement improvements to the burner system that will regulate fuel feed to the burner system.
On February 22, 1999, West Fraser appealed the Assistant Manager’s decision to amend its permit. West Fraser takes issue only with the amendment that requires it to implement a video and computer monitoring system, and seeks to have that amendment removed from its permit.
On February 23, 1999, the Individual Appellants appealed all three decisions of the Assistant Manager to amend the permits of the Corporate Appellants. The Individual Appellants seek to have the permits quashed in so far as they authorize the operation of Houston’s, Northwood’s, and West Fraser’s beehive burners. In the alternative, the Individual Appellants seek to have the permits amended so as to eliminate or minimize any adverse effects that the air emissions from the beehive burners may have on human health. The Individual Appellants have also accepted full party status in the appeals filed by the Corporate Appellants.
By letter to the Board dated March 25, 1999, counsel for the Individual Appellants proposed that the above six appeals be consolidated to achieve the most efficient use of the parties’ and Board’s resources. Prior to considering the application to consolidate, the Board requested that the Respondent and the Corporate Appellants provide the Board with any submissions they may have in response to the application.
ISSUES
The sole issue raised in this application is whether and to what extent the six appeals should be heard together.
DISCUSSION AND ANALYSIS
Counsel for the Individual Appellants submits that the six appeals should be consolidated since they raise common considerations of fact, evidence, and law.
With respect to the factual and evidentiary issues, counsel for the Individual Appellants says that each of the permits relates to the emission of air pollutants from the operation of a beehive burner located in the Bulkley Valley. He points out that the terms of the respective permits relating to the operation of the beehive burners are, with minor variation, identical. Counsel for the Individual Appellants also notes that the same technology is employed in the operation of each burner, and that each burner emits the same primary pollutants, thereby contributing to the "loading of the Bulkley Valley airshed with inhalable particulate matter."
Because of these similarities in fact, counsel for the Individual Appellants says that the evidence to be led in each of the appeals will substantially overlap:
[i]t will relate to, inter alia, the nature of the beehive burner technology, and the controls and terms imposed by the permits. There is little differentiation between either the burners, or the permits, in this respect. It will also relate to the effect of the pollution produced by the burners. This will require examining the evidence regarding air pollution on an airshed level, and the evidence in that respect will be substantially similar, if not identical, in each appeal.
Counsel for the Individual Appellants also argues that the legal issues likely to be raised in each appeal will be related. He notes that since the Individual Appellants have filed the same Notice of Appeal, the legal issues raised in those three appeals will be identical. With respect to the Corporate Appeals, he points out that the issues raised by Houston and Northwood generally correspond, particularly with respect to the extent of the Assistant Manager’s jurisdiction and the necessity of the amendments to ensure protection of the environment. Counsel for the Individual Appellants also notes that West Fraser, in its appeal, takes issue with the video monitoring amendment, which is also contested in the other two Corporate Appeals.
In summary, counsel for the Individual Appellants notes that "the most efficient, expeditious and just resolution of the six appeals can be achieved through a joint hearing of the six appeals." This would eliminate the prospect of a single witness appearing before the Board to give much the same evidence on multiple occasions, as well as the equally undesirable prospect of different panels of the Board hearing similar evidence from the same witnesses at different times.
As for the practical question of the way in which a single hearing process for the appeals might be set out, counsel for the Individual Appellants submits that "the precise details of that process, including the order of issues and evidence, can be settled at a later date as part of pre-hearing management." However, he notes, "at this stage, all parties have a definite interest in knowing whether the six appeals will proceed separately, on separate dates before separate panels, or whether they will be joined for one focused hearing before the same panel."
The Respondent supports the proposal to consolidate the six appeals. He submits that although the grounds for appeal submitted in the six respective appeals are somewhat different, each of the appellants probably could be accommodated at the same hearing "by scheduling the issues so that hearing of those issues not common to all appellants can be dealt with on separate days." In that way, the Respondent submits, those parties not concerned with an issue being addressed by the Board at a particular time need not be present.
Houston submits that it shares the Individual Appellants’ desire for efficiency in the conduct of hearings, and that it "may be logical to have the appeals … heard together to the extent that issues and evidence are common, and … separately and consecutively to the extent that issues and evidence are separate." However, Houston submits that it is "inappropriate and premature, and prejudicial to Houston" for the Individual Appellants to seek consolidation at this stage.
Houston notes that it may raise some preliminary objections to the Individual Appellants’ appeals, and is concerned that any sort of merger of the six appeals may improperly deprive Houston of its right to do so. Moreover, Houston notes that the Ministry of Environment, Lands and Parks ("MELP") has requested a pre-hearing meeting of the parties, to be held "as soon as possible", to determine whether the scope of the appeals may be narrowed, and it would be appropriate to await the outcome of that process before determining whether the appeals should be consolidated. Finally, Houston says that a decision to consolidate cannot properly be made on the information now before the Board, because it is not clear at this stage to what extent the factual, evidentiary, and legal issues raised by each party will actually overlap.
Northwood agrees that the matters raised in the six appeals should be dealt with in the most efficient and cost-effective manner possible. However, it "opposes any process that elevates the interests of efficiency and cost-effectiveness over its procedural and substantive rights." As such, it does not support any form of consolidation that may jeopardize its right to raise preliminary issues with respect to the Individual Appellants’ appeals.
Northwood is also opposed to any manner of consolidation in the civil sense (i.e. doing away with the separate identity of the six individual proceedings), but accepts that it may be appropriate for the Board to order that the matters be heard concurrently, or that witnesses should appear once on behalf of all three Corporate Appellants. However, Northwood says that any such measures "can only be properly evaluated or established once the Board and all parties have a better understanding of the issues and the actual similarity that arises from them." As such, Northwood takes the position that this application for consolidation may be premature.
West Fraser objects to the Individual Appellants’ proposal that the six appeals be heard together. West Fraser points out that it has only appealed one aspect of its permit (the video-monitoring requirement), and also submits that the air quality issues raised in respect of the two beehive burner operations in Houston will be different than those raised by its operation more than 60 kilometers away in Smithers. It says that it intends to participate in the appeals launched by Houston, Northwood, and the Individual Appellants only to the extent that its interests are affected by those appeals, and "does not wish to be drawn into a lengthy, omnibus hearing dealing with a variety of issues that do not concern it."
West Fraser also notes that it intends to raise preliminary objections to the Individual Appellants’ standing to bring their appeals, as well as the remedy they seek. It notes that these two legal issues alone are relevant only to the Individual Appellants’ appeals, and because they are distinct from West Fraser’s own appeal, West Fraser submits that they warrant separate appeal hearings.
In response to the concerns of the Corporate Appellants, counsel for the Individual Appellants submits that joining the appeals for hearing would not foreclose any party from raising preliminary or jurisdictional issues. Indeed, he says, "the fact that all three counsel propose to raise the same objections to [the Individual Appellant’s] appeals underlines the utility of joining the appeals for hearing."
Counsel for the Individual Appellants also submits that the proposal for consolidation is not premature. He argues that it is not appropriate to await the outcome of any discussions between the parties and MELP, which will be without prejudice, and may or may not hold any promise in any event. Nor, he submits, is it necessary to await further submissions from the parties, as it is clear from their respective Notices of Appeal that similar questions of fact and law will be at issue in each of the six appeals. Moreover, counsel for the Individual Appellants points out that, aside from Statements of Points and related materials filed immediately before a scheduled hearing, there is generally no other general pre-hearing disclosure in proceedings before the Board.
Counsel for the Individual Appellants concludes that "the common issues shared by the six appeals merit joining them together for a joint hearing. The timing, structure and details of that hearing can be worked out in due course."
The Board’s Procedural Manual provides that in appropriate cases, the Board may address two or more separate, but related, appeals in a single proceeding. Merging proceedings in this manner promotes the most efficient use of the resources available to the Board and the parties before it. However, where a "consolidated" procedure is adopted, the Board will ensure that procedural fairness is maintained, and that no party is denied a fair hearing or deprived of its right to present its own case.
Considering the material before it, the Panel agrees that there are many common questions of fact and law that are likely to be raised in the six distinct appeals, and that the evidence will certainly overlap to some degree. However, it also notes that the legal issues raised by the Individual Appellants are distinctly different from those raised by the Corporate Appellants. It finds, therefore, that although the separate character of each of the appeals should be maintained, the appeals should be heard together to the extent that doing so can eliminate needless repetition in the presentation of common evidence and argument.
The Board will proceed to schedule a single window of time in which all of the appeals will be heard by one panel of the Board. Once the dates of the proceedings are established, the Board will arrange a pre-hearing conference call with the parties to detail a schedule for the proceedings.
The Panel finds that this manner of joining the appeals need not affect the ability of any party to raise preliminary issues. The Panel finds that the parties may proceed with any preliminary applications as if the proceedings were not joined at all.
DECISION
This application is allowed.
Toby Vigod, Chair
Environmental Appeal Board
April 30, 1999
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