Decision Date: August 16, 2017

Panel: Michael Tourigny

Keywords: Environmental Management Act – ss. 28, 100(1); Public Notification Regulation – s. 4(6); operational certificate; landfill; public notice; standing; public interest; person aggrieved

Ermes Culos appealed a decision of the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”), to issue an operational certificate authorizing an extension of the Cache Creek landfill (the “Landfill Extension”). The operational certificate was issued to Belkorp Environmental Services Inc. (“Belkorp”) and the Village of Cache Creek (the “Village”). Mr. Culos is resident of Ashcroft, which is located approximately 12 km from the Cache Creek landfill and the Landfill Extension. The Cache Creek landfill was first authorized by the Ministry in 1987, and received municipal solid waste primarily from Metro Vancouver as well as the Village and surrounding Thompson-Nicola Regional District (the “Regional District”). In 2016, the Director approved plans for the closure of the Cache Creek landfill by the end of 2016.

The Landfill Extension is located adjacent to the Cache Creek landfill. In 2010, following an environmental assessment and extensive consultation with the public, First Nations, and other stakeholders, a certificate was issued under the Environmental Assessment Act authorizing construction of the Landfill Extension. In 2012, after further public consultation, the Minister of Environment approved an amendment to the Regional District’s Solid Waste Management Plan to include the Landfill Extension as an authorized disposal facility.

Subsequently, a draft operational certificate was prepared by the Ministry in consultation with the Village, Belkorp, and a stakeholder group for the Landfill Extension which included two local First Nations. In late July and early August 2016, notice of the draft operational certificate was sent by letter to Belkorp, the Village, the Regional District, and ten local First Nations, and was published in a local newspaper. The newspaper notice invited the public to provide comments on the draft operational certificate within 30 days of publication. Comments expressing concern about the proposed operational certificate were sent to the Ministry by Mr. Culos, one other individual, and one First Nation. Belkorp provided the Ministry with responses to those comments. After reviewing the comments and Belkorp’s responses, the Director provided written responses to each party who had provided comments. On December 15, 2016, the Director issued the operational certificate. One week later, the Director notified the three parties who had expressed concerns, including Mr. Culos.

Mr. Culos appealed the operational certificate on the grounds that the public notice was so flawed that it deterred public comments, and that the Landfill Extension was not environmentally sound and was inextricably tied to the Cache Creek landfill, such that the landfill’s environmental problems were also the Landfill Extension’s problems. He requested that the Board reverse the decision to issue the operational certificate, or send the matter back to the Director with directions regarding the public notification process.

First, the Board considered whether Mr. Culos could make appeal submissions as a representative of the public, rather than as an individual. The parties did not dispute that Mr. Culos had standing to appeal as an individual, but the Director and Belkorp argued that most of his appeal submissions were advanced on behalf of “the public” generally. The Director and Belkorp submitted that the scope of his appeal was limited to how the operational decision may affect his individual interests. The Board found that in Gagne v. Sharpe 2014 BCSC 2077, the BC Supreme Court interpreted the phrase “person aggrieved by a decision” in the Environmental Management Act (the “Act”) to mean an appellant who establishes that that he or she has a genuine grievance because the appealed decision prejudicially affects his or her interests, as distinct from the general public’s interests. Consequently, the Board held that his appeal should be limited to addressing how the operational certificate may affect him personally, as distinct from the general public.

Next, the Board considered whether the public notification process complied with the legislation and was procedurally fair. The Board found that the newspaper notice and the 30-day period for public comment complied with, and even exceeded, the requirements in section 28 of the Act and the Public Notification Regulation. The Director considered all comments received in response to the public notice, and Mr. Culos received substantive written responses to his comments. In addition, Mr. Culos received personal notice shortly after the operational certificate was issued. The Director was not legally required to notify the general public when the operational certificate was issued. The Board also concluded that Mr. Culos suffered no procedural unfairness.

Regarding the environmental soundness of the Landfill Extension, the Board found that the Landfill Extension and the Cache Creek landfill each operate under separate authorizations, and therefore, any alleged problems with the Cache Creek landfill are not automatically those of the Landfill Extension. Furthermore, the design and operation of the Landfill Extension have no connection to the Cache Creek landfill, except for using some ancillary infrastructure such as scales and buildings. There was no evidence that any actual or perceived environmental problems with the Cache Creek landfill are also those of the Landfill Extension. Moreover, the Board held that significant measures to protect the environment from contamination were imposed by the operational certificate and the environmental assessment certificate. Mr. Culos provided no evidence to support his assertion that the operational certificate’s requirements were inadequate to protect the environment and human health.

Finally, the Board noted that Mr. Culos purported to challenge whether the Ministry had discharged its duty to consult the First Nation that expressed concerns to the Director about the operational certificate. The Board found that Mr. Culos had no standing to make such submissions, and in any event, the First Nation had filed its own appeal against the operational certificate, but abandoned that appeal before it was heard.

Accordingly, the Board dismissed the appeal.