Decision Date:  April 26, 2019

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99; Administrative Tribunals Act – s. 31(1)(a); preliminary decision; jurisdiction; waste management facility; appealable “decision”; summary dismissal; Unifor Local 2301 v. Rio Tinto Alcan Inc., 2017 BCCA 300

Sumas Environmental Services Inc. (“Sumas”) operates a waste management facility in Burnaby, BC. In 1998, Sumas received a permit for the facility under the former Waste Management Act, which provided for the issuance of permits to store, treat or recycle “special waste”.

In 2004, the Waste Management Act was repealed and replaced with the Environmental Management Act (the “Act”). The Act does not mention “special waste”, but it uses the phrase “hazardous waste” which is defined in the Hazardous Waste Regulation (the “Regulation”). Section 8 of the Act states that a person must not operate a facility for the treatment, recycling, storage, disposal or destruction of a “hazardous waste” except in accordance with the regulations. Section 43 of the Regulation requires the submission of a registration form when certain quantities of hazardous waste are stored, treated, recycled or disposed of at a site. Unlike the former Waste Management Act, the Act does not also authorize the issuance of permits to store, treat or recycle “hazardous” (or formerly “special”) waste.

In 2015, Sumas submitted an application to register its facility under the Regulation, but the application was returned to Sumas because it was incomplete.

On December 4, 2018, the Ministry of Environmental and Climate Change Strategy (the “Ministry”) issued a warning letter/inspection report to Sumas, stating that Sumas was not in compliance with section 43(2) of the Regulation or section 8 of the Act, because it had not submitted a complete application to register the facility. The Ministry warned that Sumas may be subject to enforcement action if it did not submit a completed application to register the facility.

On December 13, 2018, Sumas responded to the warning letter/inspection report. Sumas submitted that the facility’s permit is deemed to be a valid authorization under the Act based on section 140(2) of the Act, which provides that “A decision of a manager under the Waste Management Act is deemed to be a decision of a director under this Act.”

On December 20, 2018, the Ministry responded to Sumas, stating that it disagreed with Sumas’ position, and outlining the Ministry’s view that the facility’s permit was no longer valid due to the repeal of the Waste Management Act, and the lack of a similar permitting authority under the Act. Sumas responded by stating that it disagreed with the Ministry’s interpretation of the legislation.

On January 18, 2019, the Ministry’s Director of Compliance (the “Director”) sent a letter to Sumas confirming that the Ministry disagreed with Sumas’ position, and reiterating that the operation of the facility without a valid registration under the Regulation is contrary to the Act and may be subject to enforcement action. He advised that the next compliance assessment of the Facility was scheduled for no later than February 28, 2019.

Sumas appealed the Director’s letter to the Board.

The Director raised a preliminary objection to the appeal. The Director submitted that his letter did not contain an appealable “decision” as defined in section 99 of the Act. Specifically, the Director submitted that the letter: did not contain an order, impose a requirement, or contain an exercise of power under the Act; and, did not cancel or amend Sumas’ permit, which was invalid due to the historic change in the legislation. The Director also submitted that Sumas would have an opportunity to file an appeal if, and when, the Director makes an appealable “decision”. The Director requested that the appeal be summarily dismissed for lack of jurisdiction.

The Board held that although it takes a liberal approach to interpreting section 99 of the Act, there must be some exercise of authority under, or derived from, the Act that relates to section 99 of the Act, in order for there to be an appealable “decision”. Sumas had identified no statutory authority under the Act, its regulations, or any statutory authority derived from the Act, for the alleged decision in the Director’s letter. The Board concluded that, even when viewed liberally, the Director’s letter did not contain a final or substantive decision that was made under, or derived from, the Act. Rather, the letter confirmed the Ministry’s interpretation of the legislation, and explained the steps the Sumas may take to bring the facility into compliance and avoid the risk of enforcement action that the Ministry may take in the future. As such, the letter did not contain an appealable “decision” as defined in section 99 of the Act, and the Board had no jurisdiction over the appeal.

Accordingly, the preliminary application to dismiss the appeal was granted.