Decision Date: April 27, 1999

Panel: Toby Vigod

Keywords: Preliminary application; scope of appeal; relevance; permit amendment; application to dismiss; costs

This was a decision on a preliminary application by Pacifica to limit the scope of an appeal by Philip Fleischer, John Keays and others against a decision of the Assistant Regional Waste Manager (“Regional Manager”) to amend an Air Permit held by Pacifica. In particular, the Appellants took issue with the amendments which extended the time frame for imposition of “Level A” requirements for particulate emissions (“PM10”) and total reduced sulphate emissions (“TRS”) from the Recovery Boiler in Pacifica’s Powell River pulp mill.

Pacifica applied to the Board to limit the scope of the appeal to exclude submissions related to volatile organic compounds (“VOCs”), polyaromatic hydrocarbons (“PAHs”) and all other substances that were not the subject of the amendments. It also requested that the Board either dismiss the appeal of John Keays, or order that he deposit with the Board a sum of money sufficient to cover the costs of the Respondent and the expenses of the Board in relation to his appeal.

The Panel found, based on the submissions before it, that some of the issues raised with respect to PAH’s and VOC’s could be relevant to the permit amendments. The Panel therefore found that it was prepared to allow evidence about PAH’s, VOC’s, and other substances, insofar as those substances related to the permit amendment and in particular, the extension of time to comply with level A objectives of PM10 and TRS.

The Panel also found that Mr. Keays had a genuine concern about the effects of the emissions on marine life, and that his appeal was not based on improper motives and was neither frivolous nor vexatious. The Panel found that it was therefore not prepared to dismiss or stay his appeal. The Panel also found, in light of this finding, that it was not necessary for Mr. Keays to deposit security for the costs of the appeal.

The application to limit evidence was allowed in part. The application to stay or dismiss John Keays’ appeal and to require him to deposit security for costs was dismissed.