• Marcus Lowe; Ermes Culos et al; Cornwall Watershed Coalition Society v. Director, Environmental Management Act

    Decision Date:
    File Numbers:
    Decision Numbers:
    2009-EMA-004(a) 2009-EMA-005(b) 2009-EMA-006(a)
    Third Party:
    Wastech Services Ltd.; Village of Cache Creek, Third Parties Metro Vancouver, Observer


    Decision Date: August 24, 2011

    Panel: Alan Andison, Robert Cameron, Ken Long

    Keywords: Environmental Management Act – ss. 16, 25(2), 28; Public Notification Regulation – s. 4(6); landfill; operational certificate; amendment; municipal solid waste; fly ash; public consultation; environmental assessment

    Marcus Lowe, Ermes Culos and four other persons, and the Cornwall Watershed Coalition Society (the “Appellants”) appealed a decision of the Director, Environmental Management Act, Ministry of Environment (the “Ministry”), to amend an operational certificate.  The operational certificate authorizes the Village of Cache Creek and Wastech Services Ltd. (“Wastech”) to manage municipal solid waste at a sanitary landfill located in Cache Creek, BC.  Among other things, the amendments authorized an expansion of the landfill’s footprint to include an additional 6.7 hectare area (the “Annex”) located adjacent to the existing landfill.

    The landfill is located on 47 Crown land near Cache Creek, and has operated since 1987 under a permit, and later the certificate, both issued by the Ministry.  The landfill receives waste from the Greater Vancouver Regional District, Powell River, Cowichan Valley Regional District, Cache Creek, and parts of the Thompson-Nicola Regional District.  It also receives fly ash from a solid waste incinerator in Burnaby.  The Board has heard several previous appeals involving the issuance or amendment of the landfill’s permit or certificate.

    The present appeal arose from Wastech’s application to the Ministry in March 2009 for certificate amendments that would allow the existing landfill to encompass the Annex, in order to extend the operating life of the landfill.  Wastech previously applied in 2007 for amendments authorizing the Annex to allow increased annual disposal capacity at the landfill, but Wastech did not proceed with that proposal because Metro Vancouver’s waste disposal needs did not increase as forecast.  In January 2009, Wastech advised the Ministry that it wanted to revive the Annex proposal, but with no increase to the annual rate of discharge to the landfill.  Wastech published public notices and conducted public consultations regarding both the 2007 and 2009 applications.  In response to public concern, the Ministry commissioned an independent team of consultants to review several previous technical reports that had considered the environmental impacts of the landfill.  The independent consultants’ report was completed in June 2009, and presented at public community meetings.  Wastech agreed to all of the recommendations in that report, some of which related to the proposed Annex.  In August 2009, the Director issued the amended certificate, subject to a number of conditions.

    On appeal to the Board, the Appellants raised several issues related to the process that led up to approving the amendments, and the potential environmental effects of the Annex.  The Appellants asked the Board to reverse the decision approving the amendments that authorize the Annex.

    The Board first considered whether the Annex is a new landfill that should have undergone different procedures prior to approval under the Environmental Management Act and the Environmental Assessment Act, including the amount and type of pubic consultation.  The Board held that the Annex is not a new landfill.  Rather, it is a part of the existing landfill, and the Annex is not a reviewable project under the Environmental Assessment Act The Board also held that the certificate amendments were consistent with the approved solid waste management plan for the landfill, as required by section 28(2) of the Environmental Management Act.

    In addition, the Board rejected the Appellants’ submission that a vote by Metro Vancouver Sewage and Drainage District Board to abandon all Interior BC landfills, and Metro Vancouver’s use of various waste reduction strategies, should have been considered by the Director before he issued the amended certificate.  The Board found that those were not relevant considerations in relation to the application for the amendments, because the Director is not bound by the Metro Vancouver Sewage and Drainage District Board’s decision, and there was evidence of the need for the amendments, mainly to accommodate solid waste generated by the Metro Vancouver area.

    Regarding the public consultation process that preceded the amendments authorizing the Annex, the Board held that the public consultation processes conducted in 2007 and 2009 complied with section 16(7)(b) of the Environmental Management Act and section 4(6)of the Public Notification Regulation, and no additional public consultation was required.

    Regarding the potential environmental effects of the Annex, the Board found that the manner of handling and disposing of fly ash in the Annex will protect the environment.  The Board found that concerns about the way fly ash was handled in other areas of the landfill were beyond the scope of the appeal.  Regarding air quality, the Board found that there would be no new impacts from trucking waste to the Annex, and that there was insufficient evidence to establish that flaring methane gas from wells at the landfill would harm human health.  However, the Board encouraged Wastech and Cache Creek to continue to pursue advanced gas recovery and utilization techniques.  Regarding leachate, the Board held that the system for collecting and managing leachate from the Annex would protect the environment.  Finally, the Board found that the vertical expansion of the landfill from the deposit of waste in the Annex will not cause problems with the existing landfill and will not result in environmental concerns.

    For all of those reasons, the appeals were dismissed.