Decision Date: December 5, 2017

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99, ; permit; composting facility; public notice; preliminary application; appealable decision; costs

This preliminary application involved two appeals filed by Revolution Organics Limited Partnership (“Revolution”). In August 2016, Revolution applied for a permit from the Ministry of Environment (the “Ministry”) that would authorize the introduction of waste into the environment from its existing compost operation located near Lytton, BC (the “Facility”). Revolution submitted its permit application “under protest”, as Revolution was of the view that its Facility does not discharge waste and that it already held an approval from the Ministry for the Facility.

Revolution’s first appeal was against a February 2017 decision (the “February Decision”) of the Ministry’s Acting Deputy Director, Environmental Management Act (the “Acting Director”). The February Decision advised Revolution of deficiencies or defects in Revolution’s proposed public notice associated with its permit application, and set out corrections and imposed timelines for posting the notice. The Board had found that those portions of the February Letter constituted an appealable “decision” under section 99 of the Environmental Management Act (the “Act”) (Decision No. 2017-EMA-004(a)).

The second appeal (Appeal No. 2017-EMA-012) was against a September 2017 decision (the “September Decision”) issued by the Ministry’s Director, Environmental Management Act (the “Director”). The Board had found that the only substantive decision in the September Decision was an extension of the timelines set in the February Decision (Decision No. 2017-EMA-012(a)).

As a preliminary matter with respect to both appeals, the Acting Director and the Director, collectively, requested that the Board dismiss portions of the appeals on the basis that:

(1) a portion of the appeal against the February Decision was filed after the expiry of the 30-day deadline for appeals, because that portion of the February Decision were originally communicated to Revolution in a July 2016 letter from the Ministry; and

(2) alternatively, some of the issues raised by the appeals could be disposed of as part of the preliminary application, with any remaining issues to be decided during a subsequent appeal hearing.

The portion of the appeal that the Directors contended was filed too late was Revolution’s contention that: 1) the Facility does not discharge waste; and, 2) the Facility has a prior approval. Similarly, the issues that the Directors sought to have decided in the preliminary application were: 1) whether the Directors erred by determining that the Facility does, or would, discharge waste for the purposes of the Act and its regulations; and 2) whether the Directors erred by determining that Revolution did not already hold an “approval” from the Ministry in respect of the Facility.

Revolution submitted that the preliminary application ought to be denied, and sought an order that the Directors pay its costs in relation to the preliminary application.

Although the Directors claimed that these parts of the February Decision were appealable “decisions” under section 99 of the Act which were appealed too late, the Board noted that it had previously found (Decision No. 2017-EMA-004(a)) that the appealable “decisions” in the February Decision consisted of the requirements imposed on Revolution regarding the content and timelines for posting notice of its permit application. Thus, the portion of the appeal against the February Decision that the Directors claimed was appealed too late was not actually the “decision” under appeal. Rather, it consisted of grounds for appeal that raised questions of mixed law and fact regarding the Directors’ authority to make the decisions under appeal. Given that the Board had not, and did not, find that these were appealable “decisions”, the Board denied the Directors’ application to strike these portions of the appeals.

Regarding the Directors’ application to decide certain issues as part of the preliminary application, the Board noted that Revolution objected to deciding these issues separately from the other issues raised by the appeals. The Board found that these issues were of significant importance to Revolution’s appeals, and there was a lack of consensus amongst the parties regarding the facts underlying these issues. In these circumstances, the Board decided that the issues should be heard at the same time as the remaining issues, based upon a full evidentiary record. Accordingly, the Board denied the Directors’ application to have these issues decided as part of the preliminary application.

Finally, regarding Revolution’s application for costs, the Board found that it was premature and any application for costs should be made at the conclusion of the hearing on the merits of the appeal.

In summary, the Board denied the Directors’ preliminary applications, and denied Revolution’s application for costs.