Decision Date: June 30, 1998

Panel: Toby Vigod

Keywords: Fluidized bed coal dryer; bad faith; improper purpose; Waste Management Act – s. 13

This was an appeal by Bullmoose against the decision of the Deputy Director to uphold the decision of the Assistant Regional Waste Manager to amend Bullmoose’s permit. The permit authorized Bullmoose to discharge air contaminants to the air from its coal preparation plant at its open-pit coal mine. The amendments at issue increased the stack sampling frequency of Bullmoose’s coal dryer from once every two years to three times every two years and lowered the Ministry of Environment, Lands and Parks’ (“MELP”) objectives for total suspended particulate for the ambient air quality data collected by Bullmoose.

Bullmoose appealed on the grounds that an increase in stack sampling would increase its annual operating costs by $4,000, but would not do anything to control emissions or improve the quality of the environment at the mine. As for the lowering of objectives, Bullmoose argued that the lowered MELP objective values could be exceeded because of activities out of its control due to the increased industrial activity in the area adjacent to the mine site monitoring station. In addition, in its closing arguments, Bullmoose alleged that the amendments to the permit were imposed as some form of retaliation.

The Board found that the Assistant Regional Waste Manager could only amend the permit for the protection of the environment and that amending the monitoring frequency in the permit would not have provided any such protection. In addition, the Board agreed with Bullmoose that each coal mine in the Province should be dealt with on a site-specific basis. The Board found that lowering the Ministry objective values was an appropriate amendment to the permit because the permit did not suggest, in any way, that Bullmoose would be held solely responsible if the ambient air levels were found to be above the objective levels. The Board found that the onus for establishing bad faith lay with Bullmoose and that there was insufficient evidence in support of this allegation. The appeal was allowed in part.