Decision Date: March 22, 2010

Panel: Alan Andison

Keywords:  Environmental Management Act – sa. 100(1), 101; Environmental Appeal Board Procedure Regulation – ss. 3(2), 3(4), 3(5), 3(6); preliminary decision; standing; person aggrieved; limitation period; jurisdiction

Ruth Madsen appealed a decision by the Director, Environmental Management Act, Ministry of Environment, issuing a permit to Aboriginal Cogeneration Corporation (“ACC”).  The permit authorizes ACC to discharge emissions to the air from a “biomass to energy facility” that proposed to be located in Kamloops, BC.  The facility would generate electricity, using chipped creosote treated rail ties and untreated wood residues as fuel.  Ms. Madsen appealed the permit on numerous grounds, which focused on the potential adverse effects of the facility’s emissions on human health and the environment.  Initially, Ms. Madsen filed the appeal on behalf of an organization.  She subsequently clarified that her intention was that she would be the appellant, but she was appealing on behalf of the organization.

ACC challenged Ms. Madsen’s standing to bring the appeal.  ACC argued that Ms. Madsen filed her appeal after the expiry of the 30-day limitation period for appealing the permit.  ACC also submitted that she filed the appeal on behalf of an organization that is not a legal “person” as required under section 100(1) of the Environmental Management Act (the “Act”).

The Board requested submissions from the parties regarding whether Ms. Madsen, in her personal capacity, had standing to appeal as a “person aggrieved” within the meaning of section 100 of the Act.  The Board also addressed the issue of whether the appeal was filed within the limitation period set out in section 101 of the Act.

The Board found that Ms. Madsen is a “person aggrieved” within the meaning of section 100(1) of the Act.  The Board found that Ms. Madsen provided sufficient information about the potential effects of the emissions on her personal interests to establish that she is a person aggrieved by the permit.  Specifically, she established that emissions from the proposed facility may adversely affect her health and her enjoyment of her property, and the health of family members who reside with her.

In addition, the Board found that the appeal was filed within the 30-day limitation period.  The Board explained that, although the notice of appeal was initially deficient because it lacked the mandatory filing fee, the Environmental Appeal Board Procedure Regulation allows the Board to give appellants an opportunity to correct such deficiencies.  In addition, the Board referred to provisions in the Interpretation Act which indicate that a notice of appeal is deemed to have been filed on the date it is deposited with Canada Post, and that if the appeal period ends on a day when the Board office is closed, the time period is extended to the next day that the Board office is open.

Accordingly, the appeal was accepted as being within the Board’s jurisdiction.