Decision Date: April 25, 2002

Panel: Marilyn Kansky, Carol Quin, Phillip Wong

Keywords: Waste Management Act – ss. 1, definition of “environment”, 10(1), 13; Wood Residue Burner and Incinerator Regulation – ss. 1, 2; Rebate of Waste Management Fees Regulation – ss. 1, 2, 3; Canadian Charter of Rights and Freedoms – s. 15(1); beehive burners; jurisdiction; particulate matter; air quality; episode management; Webcam system

Ms. Mutschke and Emily Dodd, Mr. Stevens and Dr. Bastian (the “Individual Appellants) appealed three decisions by the Assistant Regional Waste Manager (the “Assistant Manager”) to amend three permits which authorized emissions from what are commonly known as “beehive burners.” Northwood Inc. (“Canfor”) and Houston Forest Products Company (‘Houston) appealed the decision of the Assistant Manager to amend their respective waste permits.

The Board considered several issues. The Board first determined that the provisions of the amended Wood Residue Burner and Incinerator Regulation (the “Amended Regulation“) and Rebate of Waste Management Fees Regulation did not render the Individual Appellants’ appeal moot. The Board next considered whether the amendments to the permits were for the protection of the environment, and concluded that the particulate matter from the beehive burners contributes to the air quality of the Bulkley Valley, and causes an adverse effect on the environment and on human health. For this reason, the Board held that it was clearly within the jurisdiction of the Assistant Manager, and hence the Board, to amend the permits with respect to the beehive burners for the protection of the environment.

The Board next found that all of the Assistant Manager’s amendments to Canfor’s and Houston’s permits were within his jurisdiction and were reasonable. The Board also found that they were not in conflict with the Amended Regulation, except for an amendment requiring that images from a Webcam system set up to monitor burner emissions be displayed on the Internet.

The Board then considered whether it should vary the Assistant Manager’s decision with respect to each permit. After finding that it would not be a breach of procedural fairness or a denial of natural justice to consider and impose any or all of the Individual Appellants’ Proposed Amendments, the Board considered whether it was reasonable under the circumstances to vary the permits as requested by the Individual Appellants. The Board concluded that some aspects of the amendments proposed by the Individual Appellants should be included in the permits held by Canfor and Houston. In particular, the Board ordered that those permits be referred back to the Assistant Manager to add provisions addressing burner phase-out progress reporting, and burner operations. The Board also directed the Assistant Manager to consult with Houston regarding “episode management,” and with Canfor regarding permit amendments with respect to the Environmental Protection Plan.

Lastly, the Board considered whether the terms of the permits violated section 15(1) of the Charter of Rights and Freedoms. The Board found that the Individual Appellants failed to establish that they suffered discrimination as a result of the permit amendments.

The Individual Appellants also asked the Board to order costs to them in respect of certain expert fees. Since Canfor agreed to pay these costs, the Board did not consider the issue further.

Accordingly, the appeals by Canfor and Houston were dismissed. The Individual Appellants’ appeal against West Fraser’s amended permit was dismissed. The Individual Appellants’ appeals against the amended permits of Canfor and Houston were allowed, in part. Further, the Board rescinded those portions of the permit amendments relating to the Webcam system that were in conflict with the Amended Regulation. Lastly, the Board recommended that the provincial government initiate a process, in consultation with local communities and industry, to identify and implement one or more value-added solutions as an alternative to the beehive burners