Decision Date: March 29, 2017

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 16(1)(b), 16(4), 99(d), 100(1); Public Notification Regulation – s. 7(2); permit amendment; air emissions; standing; person aggrieved; application to strike grounds for appeal

The Director, Environmental Management Act (the “Director”), Ministry of Environment, requested that the Board dismiss all nine appeals that were filed against his decision to amend an air emissions permit held by Atlantic Power Preferred Equity Ltd. (“Atlantic”). He submitted that the Appellants had no standing to appeal the permit amendment, because they were not “aggrieved” by his decision as required by section 100(1) of the Environmental Management Act (the “Act”). Alternatively, the Director requested that certain grounds for appeal be struck from each of the Appellants’ Notices of Appeal.

Atlantic owns and operates a biomass-fired electricity generating facility in Williams Lake, BC. The facility uses various types of wood waste as its fuel source. Atlantic holds both an air emissions permit, which authorizes the discharge of certain emissions to the air from the facility, and a landfill permit, which authorizes the discharge of certain waste to the ground from the facility.

Atlantic applied for an amendment to its air emissions permit so that up to 50% of the facility’s fuel could be rail ties, which are treated with creosote, rather than untreated wood waste. Prior to the amendment, only 5% of the fuel could be rail ties. As part of the application process for the amendment, Atlantic engaged in a public notification and consultation process. In response, several members of the public, including some of the Appellants, provided concerns and comments to the Director regarding the proposed amendment and the potential adverse effects of burning rail ties.

The Director decided to grant Atlantic’s application for an amendment to the air emissions permit, allowing up to 50% of the facility’s fuel to be rail ties, subject to certain conditions. The amendment also resulted in new limits for certain air contaminants, including hydrogen chloride and hydrogen sulphide.

In deciding whether to grant the Director’s application to dismiss the appeals, the Board first considered the nature of the appealed decision. The Board found that the decision to amend the air emissions permit was not a “refusal to amend” the permit, to the extent that the Director did not incorporate comments received through the public consultation process. The Board found that under section 7(2) of the Public Notification Regulation comments received during the public consultation process are simply information that the Director “may” consider before making a decision. The appealed decision was made in response to the application by Atlantic, the permit holder, for an amendment to its air emissions permit. The appeals are limited to considerations that are relevant to Atlantic’s application and the Director’s resulting decision, including any changes that could have been made to the air emissions permit “for the protection of the environment” as stated in section 16(1) of the Act.

Next, the Board considered whether the Appellants were “aggrieved” by the decision to amend the air emissions permit. The Board reviewed the legal test for determining whether a person is “aggrieved” by a decision under the Act. The Board noted that the burden is on an appellant to disclose enough information or evidence to allow the Board to reasonably conclude, on a prima facie basis, that the appellant’s interests are, or may be, prejudicially affected by the substance of the appealed decision. The Board found that all of the Appellants live and/or work in Williams Lake, and all of them identified concerns about the impact of burning rail ties on air quality in Williams Lake, as well as concerns about the Director’s decision-making process, among other things. The Board found that, in this case, residency in Williams Lake may suffice for a person to be aggrieved by the air emissions permit amendment. Moreover, most of the Appellants had provided detailed submissions, and in some cases sworn affidavits, explaining how their interests may be affected by the air emissions authorized by the amendment. Consequently, the Board concluded that all of the Appellants were persons “aggrieved” by the amendment, and therefore, they had standing to appeal the amendment under section 100(1) of the Act.

Turning to the Director’s application to strike certain grounds for appeal, the Board applied the test it had used in previous cases; namely, whether, on a generous reading, it was plain and obvious that the ground for appeal was beyond the Board’s statutory jurisdiction. The Board applied that test to each ground for appeal that the Director asked to be struck. The Board found that some of the impugned grounds for appeal were plainly and obviously within the Board’s jurisdiction in deciding the appeals, and some where not. For example, the Board found that a ground for appeal regarding the alleged impact of increased rail tie burning on Williams Lake’s community reputation should be struck. In conclusion, the application to strike was: denied with respect to four of the Appellants; granted by consent with respect to one ground for appeal of one Appellant; and granted with respect to some, but not all, of the grounds for appeal of four Appellants.

Accordingly, the Board denied the Director’s application to dismiss the appeals, but granted, in part, his application to strike certain grounds for appeal.