Decision Date: April 13, 2017

Panel: Alan Andison

Keywords: Environmental Management Act – s. 99; Organic Matter Recycling Regulation – ss. 3.1, 23(2), 33; Public Notification Regulation; permit; composting facility; public notice; appealable decision

As a preliminary matter, the Board considered whether a letter from the Acting Deputy Director (the “Director”), Ministry of Environment (the “Ministry”), contained an appealable “decision” as defined in section 99 of the Environmental Management Act (the “Act”). The letter addressed the content and timelines for a public notice that Revolution Organics Limited Partnership (“Revolution”) was required to issue. The public notice was regarding an application for a permit in relation to a composting facility that Revolution owns and operates near Lytton, BC. Revolutions composting facility is integrated with an organic farm, and processes material such as wood chips, tree cuttings, grass clippings, certain food products, and paper products. Revolution sought to appeal the Director’s letter.

The Organic Matter Recycling Regulation (the “OMR Regulation) regulates the production of certain types of compost and biosolids. In 2012, the Ministry determined that Revolution’s environmental impact study regarding its composting facility met the requirements of section 23(2) of the OMR Regulation with respect to the facility design, odour and leachate collection and treatment systems, and minimizing impact on adjacent lands.

In June 2016, the OMR Regulation was amended by adding section 3.1, which required compost facilities that process food waste or biosolids, and have a production capacity of 5,000 tonnes or more per year, to hold a permit unless the facility already holds an approval or operational certificate. Section 33 of the OMR Regulation contained transitional provisions for the application of section 3.1 to composting facilities that were already operating. Among other things, section 33 set out a timeline for composting facilities to apply for a permit, and provided the Director with discretion to specify a time by which applicant for a permit must take certain steps under the Public Notification Regulation.

Shortly after section 3.1 of the OMR Regulation came into force, Revolution advised the Ministry that its composting facility did not require a permit because the facility does not discharge “waste”, and it held a prior “approval” from the Ministry in relation to the 2012 environmental impact study. In response, the Ministry advised Revolution that it disagreed, and it expected Revolution to apply for a permit.

Subsequently, Revolution submitted a permit application to the Ministry under protest, and reiterated that the facility did not discharge waste and already held an approval. In January 2017, the Director advised Revolution that its permit application was complete, and the next step would involve consultation with the public and First Nations.

In February 2017, the Director issued the letter that Revolution sought to appeal. The letter addressed the content of the public notice that Revolution proposed to issue for the purposes of complying with section 33 of the OMR Regulation and sections 2(1) and 4(1) of the Public Notification Regulation. Specifically, in the letter, the Director objected to Revolution’s statement in its proposed notice that the facility discharges no waste and has received an approval from the Ministry. The Director then set out certain content and timelines for the notice, in relation to section 33 of the OMR Regulation and the Public Notification Regulation. Revolution appealed the Director’s letter.

The Board found that section 99 of the Act lists specific types of “decisions” that may be appealed to the Board, and an appealable decision must involve some exercise of authority under the Act or its regulations. A statement of opinions and/or expectations by a statutory decision-maker is not an appealable “decision”. While a letter may contain an appealable decision, it may also convey information that is not appealable.

The Board held that the timelines set out in the Director’s letter pursuant to section 33(3) of the OMR Regulation and section 6(5) of the Public Notification Regulation were appealable decisions under section 99(b) of the Act, because they imposed requirements. However, the timeline set out in the letter pursuant to section 5(1) of the Public Notification Regulation was not an appealable decision because that timeline is a legislated requirement.

In addition, the Board found that it was unclear whether the Director had the jurisdiction to specify the form and content of a notice for the purposes of the Public Notification Regulation. The Board held that it should not refuse to hear an appeal for lack of jurisdiction unless it is clear that the subject matter is not appealable. Therefore, the Board concluded that, at the appeal hearing, Revolution should be allowed to address the question of whether the Director has the jurisdiction to specify the form and content of the notice.

Accordingly, the Board concluded that the Director’s letter contained some appealable “decisions” as defined in section 99 of the Act.