Decision Date: September 27, 1999

Panel: Toby Vigod

Keywords: Waste Management Act – ss. 3, 31; Wood Residue and Incinerator Regulation – s. 2, Schedule 1; silo burner; smoke; flyash; pollution of the environment; pollution abatement order; preliminary issue of jurisdiction

On July 23, 1999, the Regional Waste Manager issued a Pollution Abatement Order (“the Order”) requiring Slocan to abate pollution from an unmodified silo burner at its sawmill in Slocan City. Slocan subsequently appealed the decision, and made a preliminary application challenging the jurisdiction of the Regional Manager to issue the Order. Slocan sought a declaration that the Order was null and void.

Slocan argued that the Regional Manager was without jurisdiction to make the Order because it affected deadlines for filing a burner phase-out plan that already existed under the Wood Residue and Incinerator Regulation (“the Regulation“). In the alternative, Slocan submitted that the Regional Manager lost his jurisdiction by failing to take into account all relevant factors, by issuing the Order for improper purposes, and because the decision discriminated against Slocan.

The Board noted that its powers do not include the ability to issue a declaration that an order issued under the authority of the Waste Management Act is null and void, but that it does have the power to rescind an order or make any decision that the Regional Manager could have made.

The Board found that the mere issuance of a pollution prevention order does not, in itself, create a conflict with the Regulation. Pollution abatement orders are meant to address specific situations where a substance is “substantially” altering or impairing the usefulness of the environment. In contrast, the Regulation has a general focus in terms of dealing with the phase-out of certain categories of waste emitters. The Board concluded that the Regional Manager had jurisdiction to issue the Order. The Board also found that the requirements of the Order are consistent with section 31 of the Act and are not in excess of the Regional Manager’s jurisdiction. The Board dismissed the preliminary application and stated that it would proceed to set the matter down for a hearing on the merits.