Decision Date: September 16, 2010

Panel: Alan Andison

Keywords:  Environmental Management Act; permit; preliminary decision; adjournment

Ruth Madsen appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment (“Ministry”), issuing a permit to Aboriginal Cogeneration Corporation (“ACC”).  The permit authorizes ACC to discharge air emissions from a “biomass to energy facility” proposed to be located in Kamloops, BC.  The facility would generate electricity using chipped creosote treated rail ties and untreated wood residues as fuel.  Ms. Madsen appealed the permit on numerous grounds, focusing on the potential adverse effects of the facility’s emissions on human health and the environment.

Before the appeal was heard by the Board, Ms. Madsen applied to adjourn the hearing of the appeal indefinitely, pending a commitment from ACC that it intends to proceed with the permitted facility.  She applied on the basis that ACC representatives had publicly stated that ACC did not intend to build the permitted facility in Kamloops, and ACC was seeking other sites to build the facility.

The Director supported the application for an adjournment.  ACC objected to the application for an adjournment.

The Board noted that the circumstances of the adjournment request were unusual, in that ACC wanted to proceed with the appeal hearing despite indicating that it had no intention of building the facility at the permitted site.  The Board found that, if the hearing proceeded in these circumstances, the parties and the Board would incur significant expenses to conduct a four-day oral hearing, yet the Board’s decision would be “purely academic”.  In addition, the Board noted that an adjournment would not encumber ACC, since there was no stay in place against the permit, and therefore, ACC’s permit remained valid regardless of the appeal.  Further, granting an adjournment would not inhibit ACC’s ability to apply to the Ministry for a new permit to build the facility in a different location, should ACC opt to do so.  In these circumstances, the Board concluded that the appeal should be adjourned indefinitely, subject to the presentation of substantive and compelling evidence that either ACC intended to proceed with the facility in Kamloops or that ACC’s ability to exercise its rights under the permit were frustrated by the existence of the appeal.

Accordingly, the application for an adjournment was granted.