Decision Date: June 11, 2010

Panel: Alan Andison, Robert Cameron, Gabriella Lang

Keywords:  Environmental Management Act – ss. 14 (1), 16(1), 16(4); permit amendment; landfill; fly ash disposal; air quality; leachate; groundwater; public consultation; dismissal for lack of evidence

David Harris and several other people (the “Appellants”) filed four separate appeals against a decision of the Director, Environmental Management Act, Ministry of Environment, to amend a permit held by Catalyst Paper Corporation and Catalyst Pulp Operations, doing business as Catalyst Paper General Partnership (“Catalyst”).  Catalyst owns and operates a pulp and paper mill in Powell River.  The amended permit authorizes the expansion of a landfill located in the Wildwood area of Powell River.  The landfill has received refuse from the pulp and paper mill since the 1960’s, and has operated under a permit since 1976.  The appealed amendments authorized Catalyst to expand the landfill’s total capacity from 100,000 cubic metres to 620,000 cubic metres, and to increase its area from 2.3 hectares to 6.1 hectares.  The components of refuse that could be discharged to the landfill remained the same under the amended permit: fly ash, waste asbestos and “miscellaneous mill waste” as defined in the permit.  The amendments also included requirements for maintaining slope stability, monitoring dust fall and groundwater quality, and submitting annual reports, among other things.

The Appellants appealed on several grounds including concerns about: the adverse effects of dust and leachate from the landfill; groundwater contamination; slope instability; ongoing environmental protection at the landfill; financial security for closure and remediation costs of the landfill; and, the adequacy of public consultation before the amendments were approved.

The Board’s written decision included its findings on the merits of the appeals, as well as written reasons for the Board’s oral ruling during the hearing that resuled in the dismissal of part of one appeal.

During the hearing, Catalyst had requested that the Board dismiss one of the appeals after the closing of the Appellants’ case, on the basis that those Appellants had provided no evidence to support their appeal.  After listening to submissions from the parties, the Board orally ruled that the Appellants failed to meet their evidentiary burden regarding their argument that Catalyst should provide financial security in relation to closure of the landfill.  However, the Board allowed those Appellants to continue with their appeal, to the extent that they had raised concerns about the amendments’ potential adverse effects on the environment.  In response, the Appellants requested that the Board allow them to re-open their case and submit more evidence regarding Catalyst’s finances, but the Board denied their request.  The Appellants then submitted that the Board’s refusal to allow them to re-open their case demonstrated bias by the Board.  The Board held that its ruling did not indicate bias.  The Board noted that its appeal process has well established procedures and evidentiary requirements, and that the Appellants had not argued that they should be able to re-open their case when the parties were asked to make submissions on Catalyst’s no-evidence motion.

Regarding the adequacy of the public consultation process, the Board found that Catalyst posted public and written notices of the proposed amendments at least 30 days in advance, as required under the Public Notification Regulation.  The Board also fund that Catalyst conducted a year-long consultation process which included public meetings and open houses.  In addition, the Director had logged all public comments, and she ensured that Catalyst responded and addressed environmental issues in its environmental assessment report, which was submitted in draft form to the public and the Ministry for feedback.  The Board further found that the Director had responded to the issues raised through the public consultation process.  In particular, she commissioned an independent assessment of the groundwater data, added additional dust monitoring locations, and added PCB testing to the groundwater monitoring requirements.  Based on the evidence, the Board held that the consultation process was extensive, thorough, and exceeded the regulatory requirements.

Next, the Board considered whether the amendments adequately protect the environment and human health.  Regarding air quality, the Board found that the Appellants provided no evidence that the transport and disposal of fly ash would have an adverse effect on Catalyst’s workers, or that air quality at the Appellants’ homes is adversely affected by the current landfill operations or would be adversely affected by the expanded landfill’s operations.  Conversely, the Board found that Catalyst’s evidence showed that workers’ exposure to fly ash would be well within health guidelines, and any dust and particulate emissions in areas surrounding the landfill would be below acceptable standards.  Further, the Board found that the amendments require ongoing control and assessment of dust and other air emissions from the landfill, and that monitoring data will be posted on Catalyst’s website to ensure that the public is informed of the data and can bring any concerns to the Director’s attention.  Based on the evidence, the Board concluded that the amendments adequately protect air quality.

Regarding groundwater quality, the Board found that the Appellants’ concerns about leachate were based on the historical operation of the landfill and a pollution abatement order that was issued by the Ministry in 1995 in response to groundwater contamination.  The Board held that groundwater conditions have improved since an asphalt cap was placed on the historic landfill to reduce leachate, and a leachate collection and control system was installed.  The Board also found that the proposed design for the expanded landfill includes a leachate collection system and an ongoing groundwater monitoring system designed to protect groundwater quality.  The Board found that the Director had the benefit of extensive data and assessments regarding groundwater quality when she issued the amendments, and that the Director may impose further amendments in response to any changing circumstances regarding groundwater quality.  Consequently, the Board found that the amendments provide adequate protection for groundwater quality.

Regarding slope stability at the expanded landfill, the Board found that the Appellants provided insufficient evidence to support their concerns.  The Board also found that the amendments required the design and construction of the expanded landfill to protect slope stability, and provided for ongoing monitoring of slope stability.  The Board noted that the Director could make further amendments if conditions changed.  The Board concluded that the amendments protected slope stability at the site.

Regarding Catalyst’s financial health, the Board found that the Director did consider Catalyst’s financial obligations with respect to landfill closure costs, and that the amendments include conditions, such as a requirement to maintain plans and costs for closure, that ensure there will be financial security to protect the environment during closure.

Finally, the Board found that the amendments include several conditions designed to protect against future unforeseen events that could adversely affect the environment, and that the permit conditions can be amended in the future if monitoring or other observations require changes, or if technology or operations change, in order to protect the environment.  The Board also held that the Director properly applied the criteria in section 16 of the Environmental Management Act when she issued the amendments.

Accordingly, the appeals were dismissed.