Decision Date: August 2, 2019

Panel: Darrell Le Houillier

Keywords: Environmental Management Act – s. 16; Administrative Tribunals Act – ss. 16, 17; monitoring plan; emissions; sulphur dioxide; air quality objective; human health; mediation; consent order

In November 2014, Unifor Local 2301 (“Unifor”), Elisabeth Stannus and Emily Toews filed separate appeals against a Letter of Approval issued by the North Region Director (the “Director”), Ministry of Environment (the “Ministry”). The Letter of Approval approved an Environmental Effects Monitoring Plan (the “EEM Plan”) that Rio Tinto Alcan Inc. (“Rio Tinto”) prepared in relation to air emissions from its aluminum smelter located in Kitimat, BC. Unifor is a union that represents approximately 950 workers at the smelter. Ms. Stannus and Ms. Toews reside and work in Kitimat.

Rio Tinto was required to prepare the EEM Plan, and implement it once approved, pursuant to a permit amendment that the Director issued in 2013. The permit amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. Based on modelling of the predicted dispersion of the sulphur dioxide emissions from the smelter, and scientific information about the potential effects of the sulphur dioxide emissions, the Director had concluded that the increased sulphur dioxide emissions would have no significant adverse effects on human health or the environment.

As a preliminary matter of jurisdiction, the Board decided that the Letter of Approval was not an appealable “decision” as defined in section 99 of the Environmental Management Act. The Board’s decision was the subject of judicial review proceedings, culminating in a decision by the BC Court of Appeal (Unifor Local 2301 v. Rio Tinto Alcan Inc., 2017 BCCA 300). The Court concluded that the Letter of Approval was part of a staged decision-making process for amending the smelter’s permit, and was an appealable “decision” under section 99 of the Environmental Management Act. After the judicial review proceedings concluded, the Appellants sought to proceed with the appeals of the Letter of Approval.

Before the appeals were heard, the Board conducted a mediation with the parties, which resulted in an agreement to resolve the appeals.

By consent of the parties, the Board ordered that several clauses in the permit and the EEM Plan were amended with respect to monitoring the impact of sulphur dioxide emissions on human health. The amendments included: adding a threshold for determining human health impacts based on the Provincial Ambient Air Quality Objective for sulphur dioxide; incorporating the EEM Plan into the permit; and, setting out steps that would be taken to mitigate the sulphur dioxide emissions if the threshold is exceeded. The appeals were dismissed.