• Ellis O’Toole; Angie Delainey; Becky Bravi; Tricia McLellan v. Director, Environmental Management Act

    Decision Date:
    File Numbers:
    Decision Numbers:
    2016-EMA-150(a) 2016-EMA-151(a) 2016-EMA-152(a) 2016-EMA-153(a)
    Third Party:
    Atlantic Power Preferred Equity Ltd., Third Party


    Decision Date: March 29, 2017

    Panel: Alan Andison

    Keywords: Environmental Management Act – ss. 16(1)(a), 99(d), 100(1); standing; person aggrieved; permit amendment; landfill

    The Director, Environmental Management Act (the “Director”), Ministry of Environment, requested that the Board dismiss all four appeals that were filed against his decision to amend a landfill permit held by Atlantic Power Preferred Equity Ltd. (“Atlantic”). He submitted that the Appellants had no standing to appeal the landfill permit amendment, because they were not “aggrieved” by his decision as required by section 100(1) of the Environmental Management Act (the “Act”).  Alternatively, the Director requested that certain grounds for the appeals be struck from the Appellants’ Notices of Appeal.

    Atlantic owns and operates a biomass-fired electricity generating facility in Williams Lake, BC. The facility uses various types of wood waste as its fuel source. Atlantic holds both an air emissions permit, which authorizes the discharge of certain emissions to the air from the facility, and a landfill permit, which authorizes the discharge of certain waste to the ground from the facility. The combustion of wood waste at the facility creates ash, which is trucked to a landfill.

    The amendment to the landfill permit was issued on the Director’s own initiative, after Atlantic applied for an amendment to its air emissions permit. Atlantic sought the amendment to its air emissions permit so that up to 50% of the facility’s fuel could be rail ties, which are treated with creosote, rather than untreated wood waste. Prior to the amendment, only 5% of the fuel could be rail ties. As part of the application process for that amendment, Atlantic engaged in a public notification and consultation process. In response, several members of the public, including two of the Appellants, provided comments to the Director regarding the potential adverse effects of burning rail ties.

    The Director granted the amendment of the air emissions permit, and two days later, the Director issued the amendment of landfill permit.

    The four Appellants who appealed the amendment of the landfill permit also appealed the amendment of the air emissions permit.

    In deciding whether to dismiss the appeals of the landfill permit amendment, the Board first considered the nature of the appealed decision. The Board found that the decision was not a “refusal to amend” the landfill permit with respect to comments that the Director had received from the public during the consultation process regarding the air emissions permit amendment, nor was the decision a renewal or replacement of the entire landfill permit. Rather, it was a decision initiated by the Director to make minor amendments to the landfill permit, and only those amendments were properly the subject of any appeal against that decision.

    Next, the Board considered whether any of the Appellants were “aggrieved” by the Director’s decision to amend the landfill permit. The Board reviewed the legal test for determining whether a person is “aggrieved” by a decision under the Act. The Board noted that the burden is on an appellant to disclose enough information or evidence to allow the Board to reasonably conclude, on a prima facie basis, that the appellant’s interests are, or may be, prejudicially affected by the substance of the appealed decision. The Board found that the amendment in this case did not authorize any additional waste discharges, any changes in the characteristics of the waste being discharged, or any changes to the authorized works. The decision also had no identifiable links to the amendments of the air emissions permit. The decision consisted of minor “housekeeping” changes, updates to expired dates, and some changes to reporting requirements. Unlike an appeal of an air emissions permit, which may involve air contaminants that can travel significant distances from the emission source, there was no information or evidence that the landfill permit amendment may have impacts on areas surrounding the landfill. Although the four Appellants live and/or work in Williams Lake, there was insufficient information or evidence to conclude that any of the Appellants’ interests were, or may be, prejudicially affected by the amendment of the landfill permit.

    Accordingly, the Board granted the Director’s application to dismiss the appeals.