Decision Date: November 16, 2015

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 14(1), 99, 101(1); permit amendment; monitoring plan; emissions; appealable decision; person aggrieved; reconsideration

This decision was the Board’s reconsideration of whether an approval of an environmental effects monitoring plan (the “Plan”) was an appealable “decision” as defined in the Environmental Management Act (the “Act”), and if so, whether Unifor Local 2301 (“Unifor”) had standing under the Act to appeal the approval of the Plan. The Plan applies to emissions from an aluminum smelter operated by Rio Tinto Alcan Inc. (“Rio Tinto”) in Kitimat, BC. Unifor is a union that represents the smelter’s workers and retired workers, many of whom live in the Kitimat area.

Rio Tinto was required to prepare the Plan, and implement it once approved, under a condition in a permit amendment that the Director had issued in 2013. The amendment applied to Rio Tinto’s permit authorizing emissions from the smelter. In addition to requiring the Plan, the amendment also increased the maximum daily limit on sulphur dioxide emissions from the smelter. When the Plan was approved, the amendment was already the subject of appeals filed by two Kitimat residents, Elisabeth Stannus and Emily Toews. Unifor did not appeal the amendment.

In October 2014, the Director approved the Plan. Ms. Stannus, Ms. Toews, and Unifor filed separate appeals against the approval of the Plan. Unifor appealed on several grounds, including concerns about the impact of the Plan on the health of workers at the smelter. In support of its appeal, Unifor provided affidavit evidence that workers at the smelter have disproportionately high rates of cancer and respiratory illnesses, and that a significant number of workers work partially or primarily outdoors and are exposed to airborne emissions.

Before accepting the appeals against the Plan, the Board requested submissions from the parties regarding whether the approval of the Plan was an appealable “decision” as defined by section 99 of the Act, and whether the Appellants had standing to appeal as “persons aggrieved” by the Plan under section 100(1) of the Act.

The Board found that the Director’s approval of the Plan was not an appealable “decision” as defined by section 99 of the Act (Emily Toews, Elisabeth Stannus, and Unifor Local 2301 v. Director, Environmental Management Act (Decision No. 2014-EMA-003(a), 004(a), 005(a), December 4, 2014)). Rather, the Board found that the Plan was incidental to, and flowed from, the permit amendment issued in 2013, which was appealed by Ms. Stannus and Ms. Toews but not Unifor. Given the Board’s finding that the approval of the Plan was not appealable, it was unnecessary to decide whether the Appellants had standing to appeal the Plan. The appeals were rejected as being outside of the Board’s jurisdiction.

Unifor sought a judicial review of the Board’s decision. On September 4, 2015, the BC Supreme Court set aside the Board’s decision as it pertained to Unifor, and remitted the matter back to the Board for reconsideration (Unifor Local 2301 v. British Columbia (Environmental Appeal Board), 2015 BCSC 1592). Specifically, the Court found that the Board’s interpretation of “decision” in section 99 of the Act was unreasonable. The Court held that the approval of the Plan ought to have been considered part of a two-stage decision-making process involving the permit amendment. The Court concluded that the approval of the Plan was part of the permit amendment decision, and therefore, the approval of the Plan was appealable as a “decision” under one of the subsections of section 99 of the Act. The Court did not specify which subsection within section 99 applied.

In accordance with the Court’s directions, the Board reconsidered whether the approval of the Plan was an appealable “decision” as defined in section 99 of the Act, and if so, whether Unifor had standing to appeal as a “person aggrieved” by the approval of the Plan under section 100(1) of the Act.

On the first issue, the Board noted the Court’s finding that the approval of the Plan was the second stage of a two-stage decision-making process involving the permit amendment. On that basis, the Board concluded that the approval of the Plan was appealable under the same subsection as the permit amendment; namely, subsection 99(d) of the Act.

Turning to the issue of standing, the Board found that Unifor had provided sufficient evidence, on a prima facie basis, to establish that the approval of the Plan prejudicially affected its interests. Specifically, Unifor provided evidence that its members’ health may be affected by alleged deficiencies in the Plan regarding the potential health impacts of the increase in sulphur dioxide emissions that was authorized in the permit amendment. Consequently, the Board concluded that Unifor was a “person aggrieved” by approval of the Plan, and therefore, had standing under section 100(1) of the Act to appeal approval of the Plan.

Accordingly, the Board found that it had jurisdiction over Unifor’s appeal.