Decision Date: February 25, 2011

Panel: Alan Andison

Keywords:  Environmental Management Act – s. 104; stay; preliminary decision; RJR-MacDonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)

The Regional District of North Okanagan (the “Regional District”) appealed a decision of the Director, Environmental Management Act, Ministry of Environment, to amend an operational certificate.  The amended operational certificate authorizes the Regional District to manage municipal solid waste at a landfill and recycling facility located near Armstrong, BC.  The amendments require the Regional District to take certain interim measures, and submit interim and final plans for the Director’s approval, regarding monitoring and reducing methane gas levels at the landfill.  The Director issued the amendments following detection of methane gas levels in excess of the lower explosive limit (LEL) in a landfill gas monitoring well located at the landfill’s property boundary, approximately 20 metres from a home and 100 metres from three other homes.

The Regional District requested a stay of the Director’s decision pending the Board’s decision on the merits of the appeal.  The Regional District submitted that the timelines imposed by the Director for investigating the cause of the high methane levels and implementing a monitoring and mitigation strategy were unreasonable, and that installing mitigation measures without fully investigating the source may cause a fire in the landfill, which would cause harm to the environment, human health and landfill infrastructure.  The Regional District also submitted that the Director’s timelines may cause it to spend public money fruitlessly by implementing mitigation measures without completing proper site investigations, if those measures turned out to be incorrect.  The Regional District also submitted that no methane had been detected in homes within 100 metres of the landfill gas monitoring well since early December.

The Director opposed the stay application, based on concerns about public safety arising from the risk of a methane explosion.

In determining whether a stay ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General).  With respect to the first stage of the test, the Board found that the Regional District had raised serious issues to be tried which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that the Regional District failed to establish that their interests would suffer irreparable harm pending the outcome of the appeal, unless a stay was granted.  The Board found that the Director’s amendments did not impose a timeline for the Regional District to install mitigation measures; rather, the amendments imposed a timeline for it to submit interim and final plans that would propose mitigation measures and a timeline for implementation, subject to the Director’s approval.  Thus, it remained open to the Regional District to propose a timeline for installing mitigation measures.  The Board also found that there was no evidence that the Regional District would suffer irreparable financial harm if a stay was denied, because the deadline for the Regional District to submit a final plan for the Director’s approval had passed, and it appeared that the Regional District was ignoring the Director’s deadline so that it may investigate the methane source to its satisfaction before it proposed mitigation measures.

Turning to the third part of the test, the Board held that the Regional District would suffer some inconvenience by having to submit a final plan for the Director’s approval, before the appeal was decided.  However, the Board found that the Regional District would not suffer inconvenience or extra costs arising from implementing mitigation measures if a stay was denied, given that the Director left it up to the Regional District to propose a timeline for implementing mitigation measures.  In addition, for the limited purpose of deciding the stay application, the Board found that the Director’s amendments were intended to protect the environment and human health from the serious danger associated with the explosive level of methane that was detected near four homes.  Although no methane was detected in those homes during later sampling, the Regional District acknowledged that it did not know the cause of the high methane level that was previously detected.  Given that uncertainty, and the serious risks associated with explosive methane levels in close proximity to homes, the Board concluded that the balance of convenience favoured denying a stay of the Director’s decision.

Accordingly, the application for a stay was denied.