Decision Date: April 30, 1999

Panel: Toby Vigod

Keywords: Consolidation of appeals

This was a preliminary application concerning appeals to the Board by Houston Forest Products Co., Northwood Inc., and West Fraser Mills Ltd. (“the corporate appellants”), and Laurie Mutschke and Emily Dodd, Dave Stevens, and Dr. Elizabeth Bastian (“the individual appellants”). The individual appellants applied to have all six appeals heard together or “consolidated” to provide for greater efficiency and consistency.

The corporate appellants held waste permits that authorized the discharge of contaminants from their mills into the air. The Assistant Manager made separate decisions to make amendments to each of the waste permits that placed emissions and monitoring requirements on the use of wood incinerators known as beehive burners. The corporate appellants and the individual appellants were, for differing reasons, seeking an order overturning the amendments.

The individual appellants submitted that the six appeals should be heard together because they raised common questions of fact, evidence and law. With respect to the factual and evidentiary issues, they submitted that each of the permits were almost identical as they related to the emissions from beehive burners, and that the operations of the burners and the pollutants they emitted were also almost identical. For this reason, the individual appellants argued that the evidence to be lead in each of the appeals would substantially overlap. They also argued that the legal issues to be raised in each appeal were related.

The corporate appellants expressed concern that a consolidation of the appeals could jeopardize their right to raise preliminary issues with respect to the appeals of the individual appellants.

The Panel found that the Board may, in appropriate cases, address two or more separate, but related, appeals in a single proceeding. The Panel agreed that there were many common questions of fact and law that were likely to be raised by the six appeals, although some of the legal issues raised by the individual appellants were distinctly different from those raised by the corporate appellants. The Panel also found that the joining of the appeals did not affect the ability of any party to raise preliminary issues.

The Panel held that the appeals would be heard together, to the extent that doing so would eliminate repetition, but that the separate character of the individual appeals should be maintained. The application was allowed.