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Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E5 Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.eab.gov.bc.ca E-mail: [email protected]

DECISION NOS. 2016-EMA-130(a), 131(a); 2016-EMA-133(a); 2016-EMA-144(a), 145(a), 146(a), 147(a), 148(a) and 149(a) (Group File: 2016-EMA-G05)

In the matter of nine appeals under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53.

BETWEEN: John Pickford Beverley Haskins Peter Luscombe John Henry Dressler Rodger Hamilton Ellis O’Toole Angie Delainey Becky Bravi Tricia McLellan

APPELLANTS

AND: Director, Environmental Management Act APPLICANT/ RESPONDENT

AND: Atlantic Power Preferred Equity Ltd. THIRD PARTY

BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Chair

DATE: Conducted by way of written submissions concluding on January 27, 2017

APPEARING: For the Appellants: John Pickford Beverley Haskins Peter Luscombe John Henry Dressler Rodger Hamilton For the Appellants: Ellis O’Toole Angie Delainey Becky Bravi Tricia McLellan For the Applicant/Respondent: For the Third Party:

John Pickford Beverley Haskins Peter Luscombe John Henry Dressler Rodger Hamilton Erin Gray, Counsel Johnny Van Camp, Counsel Meghan Butler, Counsel Jonathan McLean, Counsel

DECISION NOS. 2016-EMA-130(a), 131(a), 133(a) 144(a)-149(a)

PRELIMINARY ISSUES

APPLICATIONS

[1] On December 9, 2016, Brady Nelless, Delegate of the Director, Environmental Management Act (the “Director”), applied to the Board to dismiss all nine of the appeals filed against his September 6, 2016 decision to approve an application to amend Air Emissions Permit #8808 (the “Air Permit”) held by Atlantic Power Preferred Equity Ltd. (“Atlantic”). In the alternative, the Director asks the Board to strike various grounds for appeal identified in the Appellants’ Notices of Appeal.

[2] The Director submits that the appeals ought to be dismissed, or that certain grounds for appeal ought to be struck, because they fall outside of the Board’s jurisdiction for two reasons:

• the Appellants do not have standing to appeal because they do not meet the requirements under sections 99 and 100 of the Environmental Management Act (the “Act”); and/or

• the Notices of Appeal challenge clauses of the Air Permit that were not amended as part of the September 6, 2016 decision.

[3] The Director further applies to strike certain Notices of Appeal because they fail to articulate any grounds and/or lack sufficient particularization to enable the Director to know the case he is expected to meet.

[4] The September 6, 2016 amendments allow Atlantic to increase the quantity of treated rail ties that can be incinerated at its Williams Lake facility on various terms and conditions (the “Amendment Decision”). The Director acknowledges that the Amendment Decision authorizes expanded activities for Atlantic, and sets new limits for the discharge of certain forms of waste into the environment, chiefly hydrogen chloride (HCl) and sulphur dioxide (SO2). However, the Director states:

… the aim of this application is not to frustrate the appellants’ appeals. Rather, given the number of appeals filed and the breadth of issues they raise, the respondent aims to narrow the substantive issues properly before the Board. By requesting the Board to consider its jurisdiction, whether the appellants have standing under the Act and whether each ground raised is in fact appealable, the respondent strives to ensure the material issues are adjudicated in a fair reasonable and efficient manner.

[5] These applications have been conducted by way of written submissions.

[6] Seven of the Appellants made submissions opposing the applications. No response was received from two of the Appellants; specifically, Beverley Haskins and Peter Luscombe.

[7] Atlantic, the Permit Holder, was added as a Third Party to the appeals. It supports the Director’s applications.

[8] It should be noted that four of the Appellants in this case also appealed a September 8, 2016 decision to amend Atlantic’s landfill permit #8809 (the “Landfill


Permit”), located 1.4 kilometres away from the facility. That decision was made by a different Delegate of the Director, Daniel P. Bings, who has similarly filed an application to dismiss the appeals filed against his amendment decision. Although there are overlaps in the facts and law in the two directors’ applications to dismiss, the Board has decided the applications in separate decisions because the appeals have not been consolidated or joined, the appeals are against different permits, are for different facilities, and were made by different decision-makers.

[9] The Board’s decision on the applications in relation to the Landfill Permit amendment appeals is found in O’Toole et al v. Director, Environmental Management Act, (Decision Nos. 2016-EMA-150(a), 151(a), 152(a), and 153(a)) (Group File: 2016-EMA-G07), issued on March 29, 2017 (the “Landfill Permit Preliminary Decision”).

BACKGROUND

Atlantic’s facility and existing permits

[10] Atlantic owns and operates the subject facility, which is a 65 megawatt biomass-fired electricity generating facility located at 4455 Mackenzie Avenue North in Williams Lake, BC. The facility has been using a combination of wood waste from sawmill operations and other waste wood as its fuel source.

[11] Atlantic is authorized to discharge specified emissions to the air from the facility under the Air Permit, which was originally issued by the Ministry in 1991, and amended on or about November 20, 2012.

[12] The Air Permit addresses a number of subjects, including: the operating parameters of the discharge, the authorized works, monitoring and reporting, and the authorized fuel.

[13] Prior to the Amendment Decision, the authorized fuel was “untreated wood residue”, as well as “the incineration of wood residue treated with creosote and/or a creosote-pentachlorophenol blended preservative (treated wood)” (e.g., rail ties), provided that:

• the treated wood component did not exceed 5% of the total biomass fuel supply calculated on an annual basis;1

• the treated wood was well mixed with untreated wood waste prior to incineration; and

• none of the wood residue had been treated with metal derived preservatives.

[Emphasis added]

1 While the Air Permit allowed up to 5% contaminated rail ties in the feedstock, Atlantic has not burned rail ties at the facility since 2010. (Atlantic’s document titled “Frequently Asked Questions”, page 2, attached to the affidavit of Rodger Hamilton).


[14] Other authorized fuels were, and still are, set out in clause 2.7.1 of the Air Permit.

[15] As a result of the combustion processes employed at the facility, fly ash and bottom ash are created. Fly ash is typically produced from a furnace or incinerator that is carried into the air. It is captured by electrostatic precipitators at the facility before the air is discharged through a stack. Bottom ash is the non-combustible residue of combustion in a furnace or incinerator.

[16] The fly ash and bottom ash constitute “refuse” that must be removed from the facility. The ash is placed in a bunker and hauled 1.4 kilometers by truck to a landfill authorized under the Landfill Permit. The landfill is located at District Lot 4941, Cariboo District, adjacent to Soda Creek Road.

Application to amend the Air Permit

[17] According to a “Fact Sheet” issued by Atlantic and provided in evidence to the Board, Atlantic supplies power to BC Hydro under a long-term energy purchase agreement. That agreement expires in 2018, but has an option for renewal.

[18] In support of renewal negotiations, Atlantic wanted to secure additional fibre (feedstock) for the facility to supplement a diminishing local fibre supply. It determined that rail ties, among other alternative fuels, would be a viable option.

[19] As noted above, Atlantic’s Air Permit allowed it to burn some treated wood; specifically, up to 5% of the total biomass fuel supply calculated on an annual basis. According to the Fact Sheet, Atlantic decided to pursue an amendment to its Air Permit that would allow it to burn a 50/50 mix of rail ties and traditional wood fibre on a periodic basis.

[20] On or about October 15, 2015, Atlantic applied to the Director for an amendment to its Air Permit to allow up to 50% treated rail ties of the total biomass fuel supply on an annual basis. The Ministry considered the application to be a “significant amendment”, which triggers broad public notification requirements under the Public Notification Regulation, B.C. Reg. 2002/94 (the “Regulation”). Atlantic notified the public that, among other things, it was applying to raise the limit on waste rail ties as a proportion of the authorized fuel from the current 5% to 50%. Atlantic’s Fact Sheet appears to have been produced as part of the notification/information distribution process.

[21] Pursuant to section 7 of the Regulation, “a person who may be adversely affected” by the application may notify the Director, in writing, stating how that person is affected. Under subsection 7(2) of the Regulation, the Director “may” take that information into consideration.

[22] Over the course of late 2015 and early-to-mid-2016, members of the public provided the Director with numerous comments and concerns regarding the proposed amendments. Of note, some of the Appellants sent emails to the Director raising concerns about the adverse impact that burning rail ties may have on the local air quality and environment, as well as concerns with the impact of the resulting ash on the landfill and surrounding area.


The Director’s decision

[23] On September 6, 2016, the Director issued the Amendment Decision pursuant to his authority under section 16(1)(b) of the Act. The Amendment Decision allows the “incineration of up to 50% by wet weight of rail tie material and clean, non-hazardous construction and demolition debris”, and includes new clauses in relation to this increased rail tie burning, as well as amendments to existing terms and conditions.

[24] The Director provided the Board with a table showing the changes that he made to the Air Permit. Portions of the table provide a useful “before and after”, line-by-line comparison of the amendments to the pre-existing Air Permit, and are attached as Appendix “A” to this decision.

The Appeals

[25] Nine individuals filed separate Notices of Appeal against the Amendment Decision. The individuals, and their appeal file numbers, are as follows:

John Pickford (2016-EMA-130)

Beverley Haskins (2016-EMA-131)

Peter Luscombe (2016-EMA-133)

John Henry Dressler (2016-EMA-144)

Rodger Hamilton (2016-EMA-145)

Ellis O’Toole (2016-EMA-146)

Angie Delainey (2016-EMA-147)

Becky Bravi (2016-EMA-148)

Tricia McLellan (2016-EMA-149)

[26] Four of the Appellants (Mr. O’Toole, Ms. Delainey, Ms. Bravi and Ms. McLellan), are represented by counsel and made joint submissions on these applications. They are referred to in this decision as the “Represented Appellants”.

[27] John Pickford, Beverley Haskins, Peter Luscombe, John Henry Dressler and Rodger Hamilton, are self-represented in their appeals. Each of these Appellants filed a Notice of Appeal in the Board’s Form 1. Each of these Appellants provided their mailing address and address for service, as well as unique grounds for appeal and remedies sought. None of these Appellants specifically described how they were aggrieved by the Amendment Decision in their Notices of Appeal.

[28] The Represented Appellants filed separate Form 1 Notices of Appeal against the Amendment Decision, but their grounds for appeal and remedies sought are identical. Each of the Represented Appellants also included a description of how he or she is specifically aggrieved by the Amendment Decision.

[29] The Board notes that, except for Ms. McLellan, all of the Appellants live in Williams Lake. Ms. McLellan works in Williams Lake and her daughter attends school there.


[30] The Board further notes that all of the Appellants identify concerns with the impact of the Amendment Decision on the air quality in Williams Lake, and take issue with various aspects of the Amendment Decision and the decision-making process in their grounds for appeal. Except for Mr. Hamilton, who seeks a number of changes to the Amendment Decision, the Appellants ask the Board to rescind the Amendment Decision or otherwise prevent an increase in the burning of treated rail ties.

Summary of the Parties’ positions on the applications

i) The Director

[31] The Director notes that section 100(1) of the Act addresses who may file an appeal under the Act (i.e., who has standing to appeal), and section 101 of the Act establishes the time to file an appeal. These sections state as follows:

100(1) A person aggrieved by a decision of a director or a district director may appeal the decision to the appeal board in accordance with this Division.

101 The time limit for commencing an appeal of a decision is 30 days after notice of the decision is given.

[Emphasis added]

[32] Section 99 of the Act defines an appealable “decision” as follows:

99 For the purpose of this Division, “decision” means

(a) making an order,

(b) imposing a requirement,

(c) exercising a power except a power of delegation,

(d) issuing, amending, renewing, suspending, refusing, cancelling or refusing to amend a permit, approval or operational certificate,

(e) including a requirement or a condition in an order, permit, approval or operational certificate,

…

[Emphasis added]

[33] The Director submits that the Amendment Decision does not invite “a wholesale review of all sections” of the Air Permit. He submits that the only “decision” under section 99 that is appealable in this case (i.e., that was issued within 30 days of the appeals) is the Amendment Decision, and only the amendments actually made in that decision may be appealed. Those amendments are identified in the Appendix “A” table. Thus, the Director submits that the Board only has jurisdiction to consider an appeal of the new clauses or changes to the Air Permit.

[34] Further, the Director submits that only those individuals who can establish that they are “persons aggrieved” by the Amendment Decision have standing to


appeal that decision under section 100(1) of the Act. Based upon the evidence provided, the Director submits that the Appellants’ standing “is not so clear”.

[35] In the alternative, if the Appellants have standing to appeal, the Director submits that a substantial number of their grounds for appeal are not properly within the Board’s jurisdiction. He argues that, for an appellant to be able to challenge a particular clause or change in the Amendment Decision, there must be evidence that he or she is personally aggrieved by the particular clause or change. The Director submits that the grounds for appeal for which an appellant has not established how he or she can be aggrieved ought to be struck as beyond the Board’s jurisdiction.

[36] As noted earlier, the Director also applies to strike certain Notices of Appeal, and/or grounds for appeal, if they lack sufficient particularization to enable the Director to know the case he is expected to meet.

ii) Atlantic

[37] Atlantic supports the Director’s applications and submits that the appeals should be struck or narrowed as requested by the Director, for the reasons given by the Director.

[38] Atlantic also clarifies the specific nature of the amendments under appeal, and the scope of the appeals. It submits that the substance of the amendments to the Air Permit is to allow expansion of the types of fuel that can be used in Atlantic’s biomass-fired power generating facility, and to make consequential restrictions on the emission output characteristics, fuel handling requirements, site changes, monitoring and reporting requirements.

[39] Atlantic argues that some of the Appellants’ grounds for appeal are beyond the scope of the Amendment Decision and constitute a collateral attack on the whole of the Air Permit (or on matters unrelated to that permit), or are caught by the principle of issue estoppel vis-à-vis the original permit.

[40] Atlantic submits that the Board’s jurisdiction to hear an appeal of the Amendment Decision, in effect, confines the subject matter of the appeals to the “real issues” that arise from that decision. It states, “[n]either the Board nor the parties should be faced with having to respond, possibly with expert evidence, to wide ranging complaints regarding air quality or other environmental concerns at Williams Lake”, which do not arise from the Amendment Decision.

iii) The Appellants

[41] The seven Appellants who responded to the Director’s applications all oppose his challenge to their standing, and his applications to strike their grounds for appeal. Although some of the Appellants provide more detailed responses than others, it is apparent that these Appellants believe that they are “aggrieved” by the Amendment Decision based upon either their residency, their employment, or their children’s activities in Williams Lake, and that their grounds for appeal ought to be heard and decided by the Board.


[42] In addition, the Represented Appellants argue that the appeals should not be limited to the changes made to the Air Permit by the Amendment Decision. Rather, they submit that the actual “decision” they have appealed is the Director’s “refusal to amend” the Air Permit as requested by some of the Represented Appellants during the notification and comment phase of the application process.

[43] The Represented Appellants also argue that, in order to have standing to appeal, and in order to argue a particular ground for appeal, an appellant does not have to establish that he or she is “aggrieved” by each specific ground for appeal. They further submit that the Board “does not parse individual paragraphs in notices of appeal”; rather, it attempts to evaluate the main theme or thrust of the disputed paragraphs to determine whether it has jurisdiction to consider the matter raised by that ground for appeal.

[44] Finally, the Represented Appellants submit that many of the Director’s submissions contain arguments against the factual and legal merits of a particular ground for appeal. They submit that such arguments go to the merits of the appeal and should not be accepted in a preliminary application to strike grounds for appeal.

[45] The Represented Appellants provided five affidavits in support of their submissions, three of which were sworn by a Represented Appellant (Ms. Bravi, Ms. Delainey and Mr. O’Toole). The other two affidavits were sworn by Mr. Hamilton, an individual Appellant not represented by counsel, and by Kim Herdman, who did not appeal the Amendment Decision.

iv) The Director’s Reply

[46] The Director submits that the Represented Appellants have, in effect, recast the issue to be determined on this application as whether the appealed decision is a “refusal to amend a permit” under section 99(d) of the Act. The Director submits that such a characterization is incorrect. He submits that the only decision that may be appealed in this case is the Amendment Decision, containing amendments to the Air Permit.

[47] Moreover, the Director submits that the main jurisdictional issue raised in his applications is one of standing; standing to appeal the Amendment Decision and to raise certain grounds for appeal. To establish this standing, the Director submits that the Appellants must provide evidence of how they are negatively and personally affected by the impugned Amendment Decision (i.e., how they are “aggrieved” by that decision), as well as evidence to establish that they are negatively and personally affected (aggrieved) by each ground for appeal.

[48] Considering the submissions provided by the Appellants, the Director states that only three of the Represented Appellants, Ms. Bravi, Ms. Delainey and Mr. O’Toole, have provided the requisite affidavit evidence to establish that they are likely to be personally affected by any impacts to the air quality in their immediate surroundings as a result of the Amendment Decision. The Director submits that other Appellants, Mr. Pickford, Ms. Haskins, Mr. Luscombe, Mr. Dressler, Mr. Hamilton and Ms. McLellan, have not provided similar evidence and their appeals should be dismissed for lack of standing.


[49] However, regardless of whether an appellant has established his or her individual standing to appeal the Amendment Decision (such as the three Represented Appellants), the Director reiterates that none of the Appellants have established standing to argue all of their grounds for appeal, and those grounds for appeal ought to be struck.

[50] The Director further submits that the appeals of Ms. Haskins and Mr. Luscombe ought to be dismissed because they did not respond to his applications; i.e., they did not contest the applications.

ISSUES

[51] The Panel finds that the issues to be decided in these applications are:

1. Does the “decision” under appeal include a “refusal to amend” as alleged by the Represented Appellants? What is the “decision” under appeal?

2. Do the Appellants have standing to appeal the Amendment Decision as persons “aggrieved” under section 100(1) of the Act.

3. Should any of the Appellants’ grounds for appeal be struck?

[52] Although the Director also applied to strike certain Notices of Appeal and/or grounds for appeal because they lack sufficient particularization to enable the Director to know the case that he is expected to meet, these arguments are not a proper basis for either dismissal of the entire appeal, nor an application to strike, at this stage of the appeal process. Provided that an appellant has standing to appeal and the ground for appeal is something that the Board has jurisdiction to consider, any clarification or particularization may be addressed prior to the hearing, either during the Statement of Points process, or through an application for particulars. If an appellant refuses to provide particulars, or provides information which a responding party believes is still inadequate, the Board will determine whether there is sufficient information to ensure that the responding parties understand the case to be met. The Board notes that some of the Appellants provided additional information to clarify their grounds for appeal in response to these applications.

RELEVANT LEGISLATION

[53] The Amendment Decision was issued under section 16 of the Act, which states, in part, as follows:

Amendment of permits and approvals

16(1) A director may, subject to section 14(3) [permits], this section and the regulations, for the protection of the environment,

(a) on the director’s own initiative if he or she considers it necessary, or

(b) on application by a holder of a permit or an approval,

amend the requirements of the permit or approval.


…

(4) A director’s power to amend a permit or an approval includes all of the following:

(a) authorizing or requiring the construction of new works in addition to or instead of works previously authorized or required;

(b) authorizing or requiring the repair of, alteration to, improvement of, removal of or addition to existing works;

(c) requiring security, altering the security required or changing the type of security required or the conditions of giving security;

(d) extending or reducing the term of or renewing the permit or approval;

(e) authorizing or requiring a change in the characteristics or components of waste discharged, treated, handled or transported;

(f) authorizing or requiring a change in the quantity of waste discharged, treated, handled or transported;

(g) authorizing or requiring a change in the location of the discharge, treatment, handling or transportation of the waste;

(h) altering the time specified for the construction of works or the time in which to meet other requirements imposed on the holder of the permit or approval;

(i) authorizing or requiring a change in the method of discharging, treating, handling or transporting the waste;

(j) changing or imposing any procedure or requirement that was imposed or could have been imposed under section 14 [permits] or 15 [approvals].

[Emphasis added]

[54] Subsection 16(4)(j) gives the Director the power on an amendment to change or impose any procedure or requirement that was, or could have been, imposed under section 14 of the Act. Section 14 is the general permitting section, which states as follows:

Permits

14(1) A director may issue a permit authorizing the introduction of waste into the environment subject to requirements for the protection of the environment that the director considers advisable and, without limiting that power, may do one or more of the following in the permit:

(a) require the permittee to repair, alter, remove, improve or add to works or to construct new works and to submit plans and specifications for works specified in the permit;

(b) require the permittee to give security in the amount and form and subject to conditions the director specifies;


(c) require the permittee to monitor, in the manner specified by the director, the waste, the method of handling, treating, transporting, discharging and storing the waste and the places and things that the director considers will be affected by the discharge of the waste or the handling, treatment, transportation or storage of the waste;

(d) require the permittee to conduct studies and to report information specified by the director in the manner specified by the director;

(e) specify procedures for monitoring and analysis, and procedures or requirements respecting the handling, treatment, transportation, discharge or storage of waste that the permittee must fulfill;

(f) require the permittee to recycle certain wastes, and to recover certain reusable resources, including energy potential from wastes.

[Emphasis added]

[55] Also relevant to the issues on these applications are the Board’s powers on an appeal under the Act. They include the following:

Procedure on appeals

102(2) The appeal board may conduct an appeal under this Division by way of a new hearing.

Powers of appeal board in deciding appeal

103 On an appeal under this Division, the appeal board may

(a) send the matter back to the person who made the decision, with directions,

(b) confirm, reverse or vary the decision being appealed, or

(c) make any decision that the person whose decision is appealed could have made, and that the appeal board considers appropriate in the circumstances.

[56] Other relevant sections of the legislation have been set out in the decision, as appropriate.

DISCUSSION AND ANALYSIS

1. Does the “decision” under appeal include a “refusal to amend” as alleged by the Represented Appellants? What is the “decision” under appeal?

[57] The Represented Appellants take issue with the Director’s characterization of the appealable decision at issue in this case. They note that the Director continually states that it is only new clauses or “changed” wording that can be appealed. They disagree. The Represented Appellants submit that a decision to decline to amend a permit is an appealable decision within the meaning of section 99(d) of the Act: a “refusal” to amend a permit. The Represented Appellants submit that the Director received many comments during the amendment


application process which he “refused” to incorporate into the Amendment Decision. They submit as follows:

… the Director was fully aware of requests by the Represented Appellants and others that he respond to specific adverse environmental consequences of allowing the burning of contaminated rail ties. The Director chose not to address certain of those concerns by way of amending the Air Emissions Permit. Those are appealable decisions. (paragraph 61)

[58] The Represented Appellants provided examples of concerns raised with the Director during the application process. They submit that these examples expand what can be appealed to cover the subjects that the Director declined to address in the Amendment Decision, and which the Represented Appellants argue should be considered and addressed by the Board.

[59] In support, the Represented Appellants rely upon a recent Board decision in British Columbia Society for the Prevention of Cruelty to Animals, Wild Arc Rehabilitation Centre v. British Columbia (Ministry of Environment), [2016] B.C.E.A. No. 10 (Q.L.) [BCSPCA]. In that case, the appellant (BCSPCA) appealed the regional manager’s decision not to include a condition in the appellant’s permit under the Wildlife Act. The Represented Appellants submit that this is an example of where the Board has exercised jurisdiction to hear an appeal of a decision in which the statutory decision-maker refused to include a provision in a permit.

[60] The Represented Appellants also rely upon their more detailed submissions on this point filed in response to the applications to dismiss, and to strike, in the Landfill Permit amendment appeals (see, the Landfill Permit Preliminary Decision).

[61] The Director submits that, even if a member of the public provides written comments and/or requests to the Director during the application process, and those comments or requests are not accepted, this does not constitute a “refusal to amend” under section 99(d) of the Act. For there to be a “refusal”, as contemplated by section 99(d) of the Act, the Director submits that there must first be an application by a permit holder. The Director states that section 16(1) of the Act and section 2 of the Regulation support this conclusion. Section 16(1) of the Act states:

16 (1) A director may, subject to section 14(3) [permits], this section and the regulations, for the protection of the environment,

(a) on the director’s own initiative if he or she considers it necessary, or

(b) on application by a holder of a permit or an approval,

amend the requirements of the permit or approval.

[Emphasis added]

[62] Section 2 of the Regulation states:

2(1) Every person who applies for a permit or approval must make an application on a form supplied by a director, sign and date the application and provide the following information:


…

(2) If a holder of a permit or approval proposes to make a significant amendment, that person must make an application on a form supplied by a director, sign and date the application and provide the following information:

…

(3) If a person who holds a permit or approval proposes to make a minor amendment, that person must write to the director who issued the permit or approval indicating the desired changes.

(4) An application under this section must be submitted to a director by the applicant or the applicant's agent and, unless the director requires otherwise, an obligation imposed by this regulation on an applicant may be carried out by the applicant's agent.

[Director’s emphasis]

[63] In other words, the Director submits that only permit holders are capable of applying, in the prescribed form, for an amendment of their permit under the Act. He submits that it is not possible for a person to make an application to a director to amend a permit that is held by someone else, as these Appellants assert they have done.

[64] Atlantic adopts the Director’s submissions on this issue.

The Panel’s Findings

[65] The Panel agrees with the Director that, for the purposes of section 99(d) of the Act, a refusal to amend does not include a director’s refusal to amend in accordance with a request by a member of the public. The Panel also finds the following argument by the Director compelling. At paragraph 21 of his reply submissions, the Director states:

Following their logic, a person who simply writes to a director under EMA [the Act] with a request that goes unanswered has standing to appeal to the Board. However, that requests were made by these appellants (and many other residents of Williams Lake) in response to the Director’s invitation for public comments during Atlantic Power’s application process does not elevate those requests to the status of applications, such that their so-called “refusal” makes them appealable decisions. They were, at all times, comments the Director may consider [section 7 of the Regulation] before making a decision: nothing more. ….

[Director’s emphasis]

[66] The Director also addressed the Represented Appellants’ reliance on the BCSPCA decision. He distinguishes that case on the grounds that, in BCSPCA, the appeal was brought by the permit holder who submitted a renewal application to


the director, and the director, in issuing the renewed permit, removed – or refused to include – a pre-existing clause in the permit.

[67] The Panel agrees that the facts in the present case are completely different from the facts in BCSPCA. Of particular note, in BCSPCA the permit holder appealed the decision, not a member of the public. This case is not authority for the proposition that the Director’s failure to include a provision requested by a member of the public constitutes, under section 99(d) of the Act, a “refusal to amend a permit”.

[68] The Panel finds that on the facts, and in law, there is no appealable “refusal to amend” in this case, as those words are meant in section 99(d) of the Act. The submissions made to the Director in accordance with section 7 of the Regulation cannot be considered an application to amend the Air Permit. Section 16(1) of the Act makes it clear that an amendment can only be requested by the permittee, or can be made by a director on his or her own initiative. Therefore, the Represented Appellants’ comments, concerns, suggestions, or requests that were provided to the Director during the notification process on the amendment application, cannot be considered a refusal to amend the Air Permit under section 99(d) of the Act.

[69] Regarding the Represented Appellants’ more detailed and expansive arguments that it incorporated from its response to similar applications in relation to the Landfill Permit amendment appeals, the Board adopts its reasoning in that decision rejecting those arguments (see the Landfill Permit Preliminary Decision, at pages 14-16).

[70] For all of these reasons, the Panel finds that the decision under appeal is not a “refusal to amend” under section 99(d) of the Act. Rather, the decision made by the Director is a decision to amend the Air Permit. The Amendment Decision was made by the Director on the application of Atlantic, and that is the only decision under section 99 of the Act that is properly before the Board. In this regard, the Director points out that, because the Amendment Decision authorizes an increase in the burning of treated rail ties from 5% to 50% of the total biomass fuel supply calculated on an annual basis, it is only that increase that is the subject of the appeals. Although he incorrectly characterizes this as a 45% increase in burning of treated rail ties, rather than a 900% increase, the Panel agrees that it is only the increase authorized in the Amendment Decision that is properly before the Board, not the decision to allow treated rail ties to be burned at all. The Air Permit already allowed burning of up to 5% of the total biomass fuel supply calculated on an annual basis.

[71] However, contrary to the Director’s decision, this finding does not mean that an appeal of the Amendment Decision is restricted to new clauses or changes made to the Air Permit, as opposed to changes that could have been made, and ought to have been made, to the Air Permit under section 16 of the Act. When it comes to the exercise of discretion to issue or amend a permit, a director’s failure to address certain matters “for the protection of the environment” is a common issue raised in appeals filed under the Act. Under section 102(2) of the Act, the Board has the power to hold a “new hearing”, and under section 103(c) of the Act, it has the power to “make any decision that the person whose decision is appealed could have made, and that the appeal board considers appropriate in the circumstances.” This


allows the Board to consider issues that the Director could have considered when deciding whether to approve Atlantic’s application to amend the Air Permit.

[72] However, the Board is still confined to the considerations relevant to Atlantic’s application and the Amendment Decision under appeal. As stated by the Director, the Amendment Decision does not open the door to a review of all sections of the Air Permit. Whether the Appellants’ grounds for appeal fall within the Board’s jurisdiction in this particular case, some of which allege failures to include or address certain matters in the Amendment Decision, will be discussed under Issue #3, below.

2. Do the Appellants have standing to appeal the Amendment Decision as persons “aggrieved” under section 100(1) of the Act.

A) The test for standing

[73] Section 100(1) of the Act sets out who may appeal a “decision” under the Act; i.e., who has standing to appeal. It states:

100(1) A person aggrieved by a decision of a director or district director may appeal the decision to the appeal board.

[Emphasis added]

[74] Over the years, the Board has interpreted the words “a person aggrieved” in section 100(1) of the Act to mean that an appellant must establish that he or she “has a genuine grievance because an order has been made which prejudicially affects his interests.” This was based, in part, upon a decision of the House of Lords in Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C.), which found as follows:

The words “person aggrieved” are of wide import and should not be subjected to a restricted interpretation. They do not include, of course, a mere busybody who is interfering in things that do not concern him; but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.

[Emphasis added]

[75] In Gagne v. Sharpe, 2014 BCSC 2077 [Gagne #1], the BC Supreme Court confirmed the Board’s interpretation of “a person aggrieved”. The Court also clarified that a person seeking to appeal a decision under the Act must show how his or her specific interests are prejudiced – prejudiced in a way that is particular to the individual - and that the prejudice be established on a prima facie evidentiary standard. The Court states at paragraph 74:

[74] I agree that it is clear the legislation intended to remove the subjective element from the test and for the Board to employ an objective standard. I also agree with the respondents when they say that the word “aggrieved” must have some meaning that separates a challenger from the general public and the Board may require a challenger to establish, on a prima facie basis,


something more than a subjective genuine interest. Simply stated, a person aggrieved must demonstrate some form of prejudice to their individual interest, albeit only on a prima facie basis.

[75] Moreover, I accept the respondents’ submission that the Board’s interpretation of “person aggrieved” in section 100 is consistent with our Court of Appeal decision in Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75, the legislative history of the term, and dictionary definitions of the word aggrieve. With regard to the appropriate dictionary definitions, I note that there were many definitions put forward by the Board and there is no necessity for me to repeat them.

…

[77] Furthermore, I recognize that the Board is different from a court because as a creature of statute it has no inherent jurisdiction to grant standing to persons or groups on either a public interest or genuine interest basis. The Board's jurisdiction is limited by the terms of its enabling legislation and it can only grant standing to a person aggrieved. ….

[Emphasis added]

[76] In the Allen case quoted in paragraph 75 of Gagne #1 (above), the BC Court of Appeal considered the meaning of “aggrieved” under the standing provision in the Dentists Act, R.S.B.C. 1996, c. 94:

[26] In construing similar language in the Ombudsman Act, R.S.B.C. 1979, c. 306, Dickson J., for the court, wrote, in British Columbia Development Corp. v. Friedmann (Ombudsman), [1984] 2 S.C.R. 447 at 469:

I would hold that a party is aggrieved or may be aggrieved whenever he genuinely suffers, or is seriously threatened with, any form of harm prejudicial to his interests, whether or not a legal right is called into question.

[Emphasis added]

[77] In a subsequent oral judgment delivered by the BC Supreme Court on a judicial review from the Board’s reconsideration of its standing decision (Gagne v. Environmental Appeal Board, Victoria 14-3037, October 31, 2014) [Gagne #2], the Court addressed the meaning of a prima facie evidentiary standard. The Court applied the following general principles from In the Matter of a Production Order, (6 July 2006), Vancouver BL0455 (B.C.S.C.):

[26] Justice Hollinrake in the oral ruling cited earlier provided the additional clarification that what must be shown is more than a mere allegation of fact, but less than proof on a balance of probabilities. The “prima facie” evidentiary standard means that the petitioners must present some evidence beyond [m]ere assertions, but short of proof on a balance of probabilities.

[Emphasis added]

[78] Applying that standard, the Court in Gagne #2 then found as follows at paragraph 24:


It is not inconsistent with the prima facie standard to require at least some objective evidence of how the amendment prejudicially affects a person’s interests. In my view, it was not unreasonable for the Board to conclude that the evidence of the petitioners was insufficient in these particular circumstances. Even on a prima facie standard, the burden is on a person seeking standing to disclose enough information or evidence to allow the Board to reasonably conclude that the person’s interests are, or may be, prejudicially affected. It was the Board’s view of the totality of the evidence that the claim of the petitioners failed to meet this burden, even on a prima facie basis.

[Emphasis added]

[79] The Court’s reference to objective evidence and a reasonableness standard in Gagne #2, builds upon the Court’s previous comment in Gagne #1 when it stated that “the Board may require a challenger [an appellant] to establish, on a prima facie basis, something more than a subjective genuine interest.” (paragraph 74).

[80] This Panel adopts and relies upon the findings above for the purposes of determining whether the Appellants have standing to appeal the Amendment Decision.

B) What constitutes “enough information or evidence” to establish standing?

[81] In his reply submissions, the Director submits that the Appellants must provide evidence of how they are negatively and personally affected by the impugned Amendment Decision; i.e., provide evidence to establish that they are “aggrieved”. Further, based upon the Director’s evaluation of the Appellants’ standing, it is clear that he believes that the type of evidence required is in the form of documents or a sworn affidavit. This is a theme throughout the Director’s submissions, and is highlighted by his reply submissions wherein he states:

Only Ms. Bravi, Ms. Delainey and Mr. O’Toole have provided the requisite affidavit evidence to establish they are likely to be personally affected by the alleged impact the amendment will have on the air quality in their immediate surroundings. The other appellants, Mr. Pickford, Ms. Haskins, Mr. Luscombe, Mr. Dressler, Mr. Hamilton, and Ms. McLellan have not provided similar evidence; therefore their appeals should be struck.

[82] The Director also submits that mere residency in Williams Lake is insufficient to establish standing: there must be evidence that goes beyond vague statements or unsubstantiated assertions respecting the impact that the impugned amendments will have on an appellant. In support, he relies upon the Board’s decision in Stevens v. British Columbia (Ministry of Water, Land and Air Protection), [2002] B.C.E.A. No. 9, paragraph 25 [Stevens].

[83] Neither Atlantic nor the Appellants provided specific argument on whether evidence is required to establish standing. However, the Represented Appellants did address the Director’s reliance on Stevens, arguing that the Director mischaracterized that case. The Represented Appellant submit that, in Stevens, Mr. Stevens was denied standing on the grounds that he was not a resident of the


town (Burns Lake) in which the facility at issue was located. Therefore, they submit that this case does not stand for the general proposition that “mere residency in Williams Lake is insufficient”.

The Panel’s Findings

[84] The word “evidence” comes up a number of times in Gagne #2 when the Court is discussing the meaning of prima facie in the context of the test for standing. It accepted the test from In the Matter of a Production Order that “the “prima facie” evidentiary standard means that the petitioners must present some evidence beyond [m]ere assertions, but short of proof on a balance of probabilities.”

[85] The Court in Gagne #2 then states at paragraph 24 that, “It is not inconsistent with the prima facie standard to require at least some objective evidence of how the amendment prejudicially affects a person’s interests”. However, the Court went on to conclude in the same paragraph that “Even on a prima facie standard, the burden is on a person seeking standing to disclose enough information or evidence to allow the Board to reasonably conclude that the person’s interests are, or may be, prejudicially affected.”

[86] In the Panel’s view, to determine whether a person is objectively, on a prima facie basis, “aggrieved” by the decision under appeal may or may not require evidence. This is consistent with the Court’s decisions in Gagne #1 and Gagne #2. If, for instance, the Board is satisfied on the basis of an address alone that it is reasonable to believe that the person’s interests “are, or may be” prejudicially affected by the decision under appeal, then no substantiating evidence is required. In Stevens, this was not the case. As noted by the Represented Appellants, in Stevens, the air permit under appeal was for a facility in Burns Lake. Mr. Stevens lived and worked in Smithers. In a case where the appellant does not live or work in the same town as the permitted facility, a mere address is unlikely to be sufficient to establish standing; some form of evidence to establish, on reasonable grounds, that the person may be personally prejudiced or impacted will likely be required. This is consistent with the Board’s findings in Stevens when the full context of the Board’s reasoning is considered:

22. … The Board agrees with Cheslatta that, although Mr. Stevens was able to engage in a consultation process, this does not mean that he has a right to commence an appeal. Standing to appeal to the Board is governed by the relevant statute. Regardless of his previous participation in the permit approval process, the Board finds that Mr. Stevens must still meet the test required under section 44 of the Act; namely, that he is a “person aggrieved.”2

2 In Stevens, the standing to appeal provision (section 44) was in the Waste Management Act. That statute was repealed and replaced with the Environmental Management Act. The substance of the standing provision in section 44 is the same as in section 100(1) of the Environmental Management Act.


23. As noted by the parties, the Board has previously found that residency and proximity are not the only relevant considerations in determining whether a person is aggrieved. In Houston, Mr. Stevens, among others, was granted standing even though he worked in Smithers and the burner was located in Houston. On the evidence presented in that case, the Board found that all of the appellants had been or may have been exposed to the particulate matter emitted from Houston’s beehive burner.

24. The Board therefore agrees that the distance of the burner to Mr. Stevens’ home and workplace is not a decisive factor. Air pollutants are mobile and can affect air quality at great distances. However, Mr. Stevens must provide some evidentiary basis upon which the Board can reasonably find that he will be affected such that he is a person “aggrieved.”

25. In this case Mr. Stevens has provided no evidence that smoke will, or even could, make its way from the mill site, located at Ootsa Lake, to Burns Lake, which is located between 50 and 60 kilometres away. Mr. Stevens provides evidence that particulate matter of the kind emitted by beehive burners is a scheduled toxin under the Canadian Environmental Protection Act. However, he does not provide any evidence to support his assertion that Burns Lake, or areas in and around Burns Lake, will be affected by the emissions. Moreover, Mr. Stevens does not say how often he travels to Burns Lake, the length of time he spends in the area or the time of year during which he travels. In this case, there are simply vague statements and unsubstantiated assertions.

26. This is distinguishable from the facts in Houston. In that case, there was evidence before the Board to support the assertion that some of the smoke from Houston’s burner made its way to Smithers at certain times of the year. Specifically, there was a memorandum from the Assistant Regional Waste Manager stating that “smoke from the Houston mills ends up in Smithers under normal winter/inversion outflow conditions.” No such evidence has been submitted in this case.

27. Accordingly, the Board is not satisfied that Mr. Stevens’ interests are personally affected by the emissions from the Cheslatta sawmill.

[Emphasis added]

[87] Although in Stevens the Board rejected the “vague statements and unsubstantiated assertions” provided by Mr. Stevens in support of his standing to appeal, this does not mean that every case will require documents or sworn affidavit evidence to establish standing. Each case is unique. In Stevens, the Board quoted from its decision in Houston Forest Products Co. and others v. Assistant Regional Waste Manager (Appeal Nos. 99-WAS-06(c), 08(c), and 11(c)-13(c), February 3, 2000), where the Board observed as follows:

… the grievance claimed to be suffered must be reasonable. In other words, it must be reasonable to believe that the subject matter of the appeal may prejudicially affect the person’s interests. This does not require an appellant to demonstrate definitive proof of prejudice suffered. As the Board stated in Fleischer and Goggins v. Assistant Regional Waste Manager et al. (Appeal No.


97-WAS-11(a), November 17, 1997) (unreported), “To require lay people to essentially ‘prove’ how they will or will likely be affected is to impose an impossible burden on them. Proof of their cases comes at the hearing stage when the merits of the case are addressed ….”

[88] Finally, in Gagne #1, the Court agreed with the Board that, “the word ‘aggrieved’ must have some meaning that separates a challenger from the general public and the Board may require a challenger to establish, on a prima facie basis, something more than a subjective genuine interest.” This distinction between the individual interest and the general public cannot be taken to mean that, in every case, a person within a community must provide information or evidence that he or she is somehow “uniquely” aggrieved by the decision vis-à-vis the rest of the community. In some cases, many people within a community will be aggrieved by a particular emission, such as an air emission. In such cases, it is the people who live outside of the obvious area of impact who may be no more “aggrieved” than any other citizen of the Province; it is those people who may need to provide more direct and compelling evidence to establish that he or she may be personally aggrieved by the decision.

C) Application of the test to the present case

[89] As stated by the Court in Gagne #2, “the burden is on a person seeking standing to disclose enough information or evidence to allow the Board to reasonably conclude that the person’s interests are, or may be, prejudicially affected” by the decision. [Emphasis added]

[90] The Board has already found that the “decision” is the Amendment Decision. The Panel finds that for a person to be “aggrieved” by the Amendment Decision, it must be reasonable to believe (the objective standard) that the Appellant’s interests are, or may be, prejudicially affected by the substance of that decision. In this case, the substance of Atlantic’s application and the Amendment Decision is the discharge of emissions to the air from the burning of an increased quantity of treated rail ties. As stated by the Director at page 2 of his applications, the Amendment Decision “authorizes expanded activities for Atlantic Power and sets new limits for the discharge of certain forms of waste into the environment, chiefly HCl and SO2.”

[91] Whether or not these “expanded activities” and “new limits” are more or less protective of the environment, is in dispute.

[92] In his reply submissions, the Director accepts that Ms. Bravi, Ms. Delainey and Mr. O’Toole have standing to appeal. Thus, his challenges to these Appellants’ standing are denied.

[93] However, the Director reasserts his challenges to the other six Appellants’ standing on the basis that they have provided insufficient evidence that they are aggrieved. The Director notes that five of these Appellants only provide an address in Williams Lake on their Notices of Appeal, and their Notices of Appeal provide no information regarding how they are negatively and personally affected by the Amendment Decision. With respect to Mr. Pickford, the Director points out that his Notice of Appeal only provides a post office box number as his address: he makes


no link between residency or employment in Williams Lake, and provides no information addressing his standing to appeal.

[94] Regarding Ms. McLellan, the sixth Appellant whose standing is still in issue, the Director observes that, while Ms. McLellan explains how she is aggrieved in her Notice of Appeal, she does not provide sworn affidavit evidence in support of these claims.

[95] The Panel is very concerned with the Director’s approach to the Appellants’ standing. First, the Panel notes that all of the Appellants used the Board’s Notice of Appeal form (Form 1) to file their appeals. The form provides a blank space for an appellant’s mailing address and address for service, which is the information required by section 22(2) of the Administrative Tribunals Act. This basic contact information is all that is required by statute on the Notice of Appeal form. The form does not require an appellant to explain how he or she is aggrieved by the decision under appeal, let alone provide sworn evidence or documents in support of his or her standing to appeal. Therefore, to file applications to reject these Appellants’ appeals on the basis that their Notices of Appeal do not address standing or include compelling evidence in support of their standing, is both premature and unfair.

[96] Second, based upon the type of decision appealed and the information in the Notices of Appeal, the Appellants’ addresses in Williams Lake provided a reasonable basis to believe that these people were, prima facie, potentially aggrieved by the Amendment Decision: there was some reasonable basis to believe that the Board had jurisdiction over their appeals. The Board, therefore, accepted the appeals as filed without seeking further information to establish their standing to appeal. In the usual course, a party challenging an appellant’s standing will provide some information or evidence to the contrary. In this case, the Director did not provide any such information or evidence, despite having access to the Appellants’ addresses, the facility’s address, and technical information about the existing and proposed discharges from the facility which, in all likelihood, includes information regarding the prevailing winds and weather conditions in Williams Lake.

[97] Further, the Regulation required broad notification of this “significant amendment”, including publication in the British Columbia Gazette Part I and in local newspaper(s). Under section 7 of the Regulation, members of the community “who may be adversely affected” by an amendment to a permit may write to the Director and advise him of how they “may be affected”. The Director received numerous written comments under this section. If the Director ignored or rejected comments on the basis that the person was not, or could not be, “adversely affected” by the proposed amendments to the Air Permit, he does not say so in his submissions. This would have been useful information in the context of his challenge to the Appellants’ standing.

[98] Despite the lack of information or evidence that puts these Appellant’s standing into question, a number of the Appellants responded to the Director’s applications by providing additional unsworn information in support of their standing.

[99] Mr. Pickford states that he has been a resident of Williams Lake for many years, and that the amendments allow an increase in the burning of rail ties from


5% to 50%, a 900% increase. He states that “any human with lungs residing in Williams Lake is aggrieved by a 900% increase in burning of treated rail ties and concomitant increase in toxic emissions into the atmosphere.” He also states that he spends much time outdoors as a runner and walker, and is “vitally interested” in the quality of the atmosphere and the air that he breaths approximately 20,000 times daily.

[100] Mr. Hamilton resides in Williams Lake. He provided lengthy submissions in response to the Director’s applications, as well as a sworn affidavit that was attached to the Resident Appellants’ submissions. His affidavit was focused primarily on the extensive comments he sent to the Director during the application process, rather than on his standing to appeal. Mr. Hamilton states that the Amendment Decision under appeal authorizes a new and unique suite of air contaminants which will adversely affect the local air quality. He states that he is appealing as a person who will breathe that air, not as a “mere busybody”.

[101] Ms. McLellan provided information on how she is aggrieved in her Notice of Appeal. While she no longer lives in Williams Lake, Ms. McLellan advises that: (a) she co-owns a yoga studio which is located 4.1 kilometers from the facility, where she spends approximately five days per week, and (b) her daughter attends an elementary school in Williams Lake, approximately 3.1 kilometers from the facility. In addition, Ms. McLellan states that she bikes, hikes and cross-country skis in the vicinity of the facility. Ms. McLellan states that she and her daughter “breathes and smell the air that will become more polluted with this permit amendment.”

[102] Mr. Dressler provided a short submission, but did not address his standing. However, the Panel notes that, in addition to his residential address in Williams Lake, his Notice of Appeal states that clause 2.10 of the Amendment Decision (regarding storage and transport of the railway ties within the City limits) “will do great harm to the air environment of the City of Williams Lake and the health and well-being of its residents”, which would obviously include himself.

[103] The Panel finds that these four Appellants have disclosed sufficient information to establish, objectively, and on a prima facie basis, that the appealed decision may prejudicially affect their interests. Having reviewed their Notices of Appeal, none of the Appellants appear to be “mere busybodies”. There is no evidence to the contrary.

[104] Regarding Ms. Haskins and Mr. Luscombe, the Director submits that neither of these Appellants addressed why they are aggrieved in their Notices of Appeal, and did not provide any submissions in response to the Director’s applications. Therefore, their appeals ought to be dismissed as the applications were not contested.

[105] The Panel notes that, according to Google Maps, Ms. Haskin’s residential address is less than 10 kilometres south of the facility “as the crow flies”. Mr. Luscombe’s address is less than 5 kilometres from the facility, “as the crow flies”. Although these two unrepresented Appellants did not respond to the Director’s challenge to their standing, the Board is satisfied that they live in sufficient proximity to the facility that establishes they may reasonably be impacted or personally affected by the Amendment Decision. Also, based upon a review of their


Notices of Appeal, these Appellants do not appear to be “mere busybodies”, and there is no information or evidence to the contrary.

[106] The Panel finds that for a person to be “aggrieved’ by the air emissions authorized by the Amendment Decision, residency in Williams Lake may suffice.

[107] For the reasons provided above, the Panel finds that all of the Appellants have standing to appeal the Amendment Decision under section 100(1) of the Act.

[108] The Director’s applications to dismiss the appeals are denied.

3. Should any of the Appellants’ grounds for appeal be struck?

The Test

[109] The Director cites the Board’s decision in Cobble Hill Holdings Ltd. v. British Columbia (Ministry of Environment), [2014] B.C.E.A. No. 1 (Q.L.) [Cobble Hill], as the applicable test for an application to strike grounds for appeal.

[110] In Cobble Hill, the Board considered whether to strike certain grounds for appeal raised in appeals against a permitting decision made under section 14 of the Act. The Board first noted that its jurisdiction is derived from, and governed by statutes: it has no inherent jurisdiction. Therefore, in order to determine whether something is within its jurisdiction, the first step is to consider the relevant statutory provisions.

[111] The Board also adopted the test used by Canadian courts to strike claims. That is, claims should be struck only when it is “plain and obvious that the claim at issue cannot succeed”. The Board explained why it chose this test, and how it would be applied at paragraphs 46-50:

46. ... statutory interpretation – particularly interpreting the limits of one’s jurisdiction – is, unfortunately, not as simple as Cobble Hill appears to suggest. The language used in legislation is not always amenable to “black and white”, “yes and no” answers. There are often many grey areas. In these circumstances, a proper interpretation may benefit from a factual context, evidence, and additional argument. In the context of an application to strike, it would be careless - and could result in significant unfairness - to strike a claim or a ground for appeal unless it is “plain and obvious” that such a claim or ground for appeal is not within the tribunal’s jurisdiction.

47. Although the “plain and obvious” test establishes a high threshold to meet in order to succeed on an application, the Panel is of the view that the threshold should be high. In addition to the reasons provided above, during a preliminary application, neither the parties, nor the Board, have had time to fully comprehend the legislative framework and the implications of different interpretations of the legislation. There are occasions when evidence can be helpful to interpreting the “mischief” intended to be prevented by the legislation, the consequences of certain interpretations, as well as any technical meanings of words within a specialized area or context.


48. In addition, one of the reasons for the existence of administrative tribunals is to make the process more accessible to parties who are not represented by legal counsel. The threshold must be high to ensure that they have a chance to be heard on matters that are, arguably, within the tribunal’s jurisdiction.

49. With this latter point in mind, the Panel agrees with the philosophy adopted by the courts that a claim, in this case a Notice of Appeal, should be read “as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies” (per Speckling).

50. Accordingly, the test to be applied on these applications will be whether, based upon a generous reading, it is plain and obvious that the appeal, or the ground for appeal, is beyond the statutory jurisdiction of the Board.

[Emphasis added]

[112] The Board further explained the need for a generous reading of a ground for appeal in Fitzpatrick v. British Columbia (Ministry of Environment), (Decision No. 2013-WAT-004(a)), [2014] B.C.E.A. No. 10 (Q.L.) [Fitzpatrick]. At paragraph 29, the Board states:

29. The Panel also notes that many of the paragraphs at issue contain multiple points and arguments, some of which are of debatable relevance. Unfortunately, the nature of an application to strike at this juncture forces a preliminary determination of relevancy. Given the potentially serious consequences to an appellant that may flow from the Board’s decision on an application to strike (i.e., it can limit the scope of an appeal and the arguments to be made), as stated in Cobble Hill, the test establishes a high threshold and the paragraphs should be read “as generously as possible”. To achieve the latter, the Panel will attempt to evaluate the main theme or thrust of the disputed paragraphs, rather than focusing on the minutiae, in order to determine whether it is plain and obvious that the paragraphs are beyond the Board’s jurisdiction, or are clearly irrelevant to the appeal. If it is not plain and obvious that the paragraph should be struck, the Applicants’ jurisdictional concerns, and their concerns with factual and legal relevancy, will have to be raised again and addressed in the usual way during the hearing.

[Emphasis added]

[113] The Panel agrees that the plain and obvious test set out in Cobble Hill is applicable to the Director’s applications to strike some of the Appellants’ grounds for appeal. However, much of the Director’s analysis of the Appellants’ grounds for appeal relies upon the test for standing, rather than the plain and obvious test in Cobble Hill, to determine whether the particular ground for appeal should be struck. This is evident from the following paragraph in the Director’s reply arguments:

Given these appellants have alleged 25 grounds for appeal, the respondent considers it prudent and necessary to examine their standing respecting


grounds raised to ensure only those properly before the Board are advanced to a hearing on the merits. This approach serves both the interests of justice and judicial economy – these appellants are not prejudiced by striking grounds for appeal they lack standing under EMA to advance in any event. (paragraph 15)

[114] There are numerous specific examples in the Director’s main application that highlight this approach.

[115] The Panel finds that the Director’s approach conflates the test for standing to appeal the decision itself with the test for striking a ground for appeal. The test established in Cobble Hill is to evaluate whether it is plain and obvious that the ground for appeal, on a generous reading, is not within the Board’s jurisdiction. The test is not whether the appellant is personally aggrieved by each and every particular clause or change they challenge in an appealed decision, or aggrieved by the failure to add or change a clause for the protection of the environment.

[116] A similar conflation of the tests was made by the applicant in Cobble Hill. In that case, the Board distinguished the types of matters that the Board has jurisdiction to consider in an appeal under the Act, versus standing as a “person aggrieved” under the Act. At paragraph 82, the Board states:

82. Although Cobble Hill tries to link the common law test that the Board has adopted in relation to standing to the question of jurisdiction that is raised by its applications [to strike], the Panel finds that it is not necessary to determine the limits or extent of standing, or how standing applies to the Board’s jurisdiction to consider certain issues and order certain remedies.

[117] The Panel finds that, once an appellant has standing to appeal the decision itself, the appellant is “in the door” so to speak, and may raise concerns about how the decision-maker’s exercise of discretion was performed, whether it is consistent with the statutory requirement to protect the environment and human health, and any other ground that is within the Board’s jurisdiction. The person does not need to establish standing to argue each ground for appeal. Issues related to relevancy and proof of an appellant’s claims will be addressed during the hearing of the merits. However, if there is a legitimate question as to whether a particular ground for appeal is within the Board’s jurisdiction, this may be the subject of an application to strike, and it is properly raised in a preliminary application.

[118] In summary, as stated in Cobble Hill, a high threshold will be applied to an application to strike. Unless it is plain and obvious, on a general reading of a ground for appeal, that the Board does not have jurisdiction over the matter or that the ground is completely irrelevant to the subject of the appeal, the Board should hear the evidence and argument in a hearing of the merits. An application to strike should only be granted in clear cases. If, from a jurisdictional perspective, a ground for appeal is “borderline”, it would not be fair to strike it in a preliminary application: such matters must be determined at the hearing of the merits where all parties have an opportunity to present evidence and further explain their points.


Application of the test to the disputed grounds for appeal

[119] As a preliminary point, the Panel finds that the clarification given by the Board in Fitzpatrick at paragraph 28, also applies to the present case:

28. As a preliminary point it should be clarified that, in making a decision on this application, the factual assertions set out in the Amended Appeal are not being accepted by the Panel as “the facts” simply because they are asserted in the Amended Appeal or are referred to in this decision. The factual assertions set out in the Amended Appeal will be the subject of evidence at the hearing, and may also be the subject of objections and contrary evidence at the hearing. Ultimately, the Hearing Panel will be required to determine the facts, their relevance to the issues, and apply the facts to the law in order to make a decision on the merits of the appeal.

[120] The Panel will now proceed to consider the Director’s applications to strike the disputed grounds for appeal from each Appellant’s Notice of Appeal.

[121] Atlantic agrees with and adopts the Director’s submissions.

[122] Many of the Appellants did not specifically address each disputed ground for appeal in their submissions. To the extent that an Appellants’ submissions are responsive to the Director’s arguments, and/or are required to decide the application, they will be addressed.

[123] As noted earlier, two of the Appellants (Ms. Haskins and Mr. Luscombe) did not respond to the applications.

John Pickford (2016-EMA-130)

[124] The Director submits that grounds #2, #4, and #5 of Mr. Pickford’s Notice of Appeal ought to be struck. The grounds at issue have been summarized by the Panel.

2. The Ministry does not test ambient air for HCl.

[125] The Director submits that whether and where to establish ambient monitors is the Ministry’s policy decision to make, and is not part of the Amendment Decision; therefore, it is not within the Board’s jurisdiction to consider. Moreover, the Director submits that he added a new clause 3.2 to the permit (“Ambient Monitoring”), which is intentionally broad and capable of including HCl monitoring.

[126] The Panel finds that, given that the Director has added a new clause that is “capable of including HCl monitoring”, on a generous reading of the ground for appeal, it is not plain and obvious that the Board does not have jurisdiction to consider whether the Director ought to have specifically addressed such monitoring in the Amendment Decision.

[127] The application to strike this ground is denied.

4. Many residents are opposed to burning rail ties, but the Ministry “summarily dismissed” the opposition on the grounds that no reason


for the opposition was given. This is “disingenuous”. Further, a Ministry’s assessment states that the stakeholders’ concerns could be addressed by permit requirements. Mr. Pickford disagrees with this assertion.

[128] The Director notes that section 7 of the Regulation allows any person “who may be adversely affected by the … granting of an amendment to a permit” to write to the Director stating how he or she is affected, which the Director “may” consider. The Director submits that “Mr. Pickford’s subjective impression of whether and to what extent the Director considered the public’s opposition prior to making his decision is not a matter properly before the Board and ought to be struck”, citing the Board’s decision in Harris v. British Columbia (Ministry of Environment), [2010] B.C.E.A. No. 4 (QL) [Harris].

[129] Similar to the present case, in Harris, the decision under appeal was made under section 16 of the Act. The Board determined that its jurisdiction on the appeal was informed by the director’s jurisdiction as found within section 16, and states at paragraph 66:

66. Regarding the Appellants’ submissions concerning alternative sites and other matters beyond the Amended Permit’s conditions, the Panel notes that the Act strictly limits the Board's review powers to the Director’s decision to issue the Amended Permit, and the question of whether it protects the environment. This appeal is not about Catalyst’s decisions or any options that Catalyst did or did not consider - an appeal to this Board is not an open ended public inquiry into choices made by Catalyst.

[130] In Cobble Hill, the Board agreed at paragraph 214 that:

… public opposition is not, in and of itself, a relevant consideration under the Act. A decision-maker is required by law to consider the merits of an application; the fact that the “public” opposes an application is not a relevant consideration.

[131] In that same paragraph, the Board also noted that, as part of the notification process set out in the Regulation:

…it will likely be evident to a decision-maker that there is general public support or opposition to a project. However, a permit cannot be granted or rejected by the statutory decision-maker on the basis of its popularity, or lack thereof.

[132] To the extent that this ground for appeal is that the Director erred by failing to consider public opposition, the Panel agrees with the Director that this is not a proper consideration under the Act, and that a permit amendment cannot be rejected by a statutory decision-maker under section 16 on the basis of public opposition.

[133] However, on a generous reading of this ground for appeal, Mr. Pickford’s argument is that the Director failed to consider relevant considerations, as expressed by citizens under section 7 of the Regulation. On this reading, his ground is arguably within the Board’s jurisdiction to consider as the Director has


discretion (“may take into consideration”) the information provided under section 7, and whether it ought to have resulted in additional permit requirements.

[134] Provided that Mr. Pickford does not argue that public opposition to Atlantic’s application is a relevant factor to consider, the Panel is prepared to give this ground for appeal a very generous interpretation, and allow it to be argued.

[135] The application to strike this ground for appeal is denied.

5. Continuous emission monitoring with Canada EPS 1/PG/7 protocol mandated by the pre-amendment Air Permit has been deleted. There are no specifications for ambient air testing for HCl, SO2 and nitrogen dioxide (“NO2”).

[136] The Director agrees that monitoring in accordance with that protocol was removed. However, he notes that this requirement is now captured by the most recent edition of a new document which Atlantic is required to comply with according to amended clause 3.4. The Director submits that the amendments relating to continuous monitoring for HCl and SO2 represent new, more restrictive requirements, and continuous monitoring of NO2 is required under amended clause 3.1.1. Further, Atlantic must participate in an ambient air monitoring program satisfactory to the Director under the new clause 3.2. Therefore, the Director submits that there is no reasonable basis for this ground and it ought to be struck.

[137] The Panel finds that this is an example of the Director providing argument in support of certain amendments in the Amendment Decision, and in response to the ground for appeal generally. This is argument properly made during a hearing on the merits. It is not plain and obvious that this ground for appeal is beyond the Board’s jurisdiction.


Beverley Haskins (2016-EMA-131)

[139] The Director challenges the following ground for appeal in Ms. Haskins’ Notice of Appeal:

I am also concerned about the storage of the ties and the storage of the ash accumulations. We have not been assured that this will not be detrimental to our land and water systems.

[140] The Director submits that the Amendment Decision does not deal with the “storage of the ash accumulations”. Under the existing Air Permit, ash must be removed from the boiler regularly and disposed of on a site and in a manner approved by the Director. One of the places where the ash is deposited is Atlantic’s landfill authorized under the Landfill Permit. Therefore, the Director submits that Ms. Haskins’ concern with any detrimental impact to the environment from the storage of ash accumulations, is beyond the Board’s jurisdiction in relation to the Amendment Decision, and ought to be struck.

[141] Ms. Haskins did not provide any response to the Director’s application.


[142] The Panel finds that Ms. Haskins’ concern about the storage of ties is within the Board’s jurisdiction, and does not appear to have been challenged by the Director.

[143] Regarding Ms. Haskins’ concern about the storage of ash accumulations, it is not clear from the language used that she is referring to accumulations at the landfill. Giving the ground for appeal a generous reading, the Panel finds that consideration of an environmental impact relating to the storage of ash at the facility, relating to the increase in the rail ties being incinerated, is a relevant consideration under the Act. This is so even if that storage is only temporary until the ash is removed from the facility. Therefore, upon a generous reading, it is not plain and obvious that this ground is beyond the Board’s jurisdiction.


Peter Luscombe (2016-EMA-133)

[145] The Director submits that Mr. Luscombe’s ground for appeal #3 ought to be struck. This ground states as follows:

There is no clear indication how diligent the monitoring will be and who else beside the company [Atlantic] will be involved.

[146] The Director submits that this ground ought to be struck because Atlantic’s monitoring obligations have increased under amendments to clause 3.1, both in scope and “in kind”. Further, the Director states that “[h]ow diligently Atlantic Power performs its monitoring obligations under the Permit” is not part of the Amendment Decision; rather, it falls under the Ministry’s Compliance and Enforcement Branch’s mandate which is not appealable. Accordingly, this ground is not within the Board’s jurisdiction.

[147] Mr. Luscombe did not provide any response to the Director’s application.

[148] The Panel has tried to interpret this ground for appeal in the context of his first two grounds for appeal, neither of which have been challenged. Those grounds relate to concerns about adverse effects to the air quality in Williams Lake, and to health impacts resulting from HCl, and the other forms of waste discharged as a result of the “shredding, storage and incineration of rail ties”. The Panel finds that, in this context, and giving a generous reading of the disputed ground, Mr. Luscombe is concerned that the monitoring provisions in the Amendment Decision will not be sufficient to ensure that the shredding, storage and incineration of the rail ties are not causing adverse health effects.

[149] The Panel finds that monitoring is within the Board’s jurisdiction to consider on this appeal under sections 16(4)(j) and 14(1)(c) and (e) of the Act.

[150] In his application, the Director also submits that Mr. Luscombe has asked the Board to prohibit Atlantic from burning rail ties. The Director points out that, as the original Air Permit allowed the burning of 5% treated rail ties, the Board does not have the jurisdiction to order a complete prohibition. The Panel agrees. This remedy will be read down to request a prohibition of the quantity authorized by the Amendment Decision.


[151] The Director’s application to strike ground for appeal #3 is denied. However, Mr. Luscombe’s remedy will be read down as stated in the preceding paragraph.

John Henry Dressler (2016-EMA-144)

[152] Mr. Dressler states that the Amendment Decision is wrong and should be changed because:

The storage and transport of railway ties within the City boundaries will cause dust and odour for residents and City users. To suggest it can be “controlled and suppressed” is misleading and unrealistic.

This will do great harm to the air environment of the City of Williams Lake and the health and well-being of its residents.

[153] The Director applies to strike this ground for appeal. He submits that this ground for appeal is addressed by new clause 2.10, titled “Rail Tie Odour and Polycyclic Aromatic Hydrocarbon Control”. The Director argues that this new clause is, in fact, more protective of the environment and human health than the pre-amendment version of the Air Permit. He then relies on this claim to argue that Mr. Dressler lacks standing under the Act to appeal, as he cannot be aggrieved by a more protective clause. As the Panel stated earlier, this is not the applicable test for striking a ground for appeal.

[154] In the alternative, the Director argues that Mr. Dressler’s Notice of Appeal lacks sufficient particularization for the Director to know the case that he must meet. However, as the Panel has stated under the Issues section, provided that the appellant has standing to appeal (which Mr. Dressler does), and the ground for appeal is something that the Board has jurisdiction to consider, any clarification or particularization may be addressed prior to the hearing, either during the Statement of Points process, or through an application for particulars.

[155] In regards to clause 2.10, the Panel finds that Mr. Dressler’s concern with the amendment addressing dust and odour is clearly within the Board’s jurisdiction on this appeal. Whether the amendment is more protective of the environment, as alleged by the Director, is something to be decided on the merits of the appeal.

[156] The Director’s application to strike Mr. Dressler’s ground for appeal is denied.

Rodger Hamilton (2016-EMA-145)

[157] Mr. Hamilton appealed the Amendment Decision on 12 grounds. His Notice of Appeal explains the basis for each of his grounds for appeal, and identifies what he wants changed to address the concerns raised under each ground.

[158] The Director challenges grounds #1, #2, some of #3, #4, #5, #6, #7, #8, #9, #10, #11, and #12. The disputed grounds for appeal at issue have been summarized by the Panel.

1. The location where up to 300,000 tonnes per year of treated wood will be transferred from rail cars to trucks for transport to the facility has not been identified. The new clause 2.10 (“Rail Tie Odour and Polycyclic Aromatic Hydrocarbon Control”) deals with rail tie odour


and polycyclic aromatic hydrocarbon (“PAH”) control does not address the location of the treated wood transfer facility, but should have. He asks that the Amendment Decision be rescinded until the location is confirmed, consultation is undertaken, and the activity is properly assessed regarding its potential impacts on public health and the environment.

[159] The Director submits that Mr. Hamilton does not reference particular amendments in this complaint, nor does he state how he is aggrieved by the mere transfer of rail ties. The Director points out that rail ties were previously permitted as a fuel which made the transportation to the facility “inevitable”. He states that the Amendment Decision does not change the fact that the transportation of rail ties will continue to be required, but did add new, improved restrictions on fugitive odour and PAH control associated with the activity. The Director states, “It is not apparent on the face of his notice of appeal how this new, improved restriction inadequately protects the environment or human health, or how he is aggrieved by it.”

[160] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, the Director provides argument in support of certain amendments in the Amendment Decision and argues that they are “improved restrictions”. Mr. Hamilton’s argument that the transfer location ought to be addressed in clause 2.10, and the Director’s argument in response, are matters properly addressed during a hearing on the merits of the appeal.


2. The amendments include new requirements for trial burns and the monitoring and reporting of those trial burn results, including reporting on a size fractionation test of particulate to determine PM10 and PM2.5 content (e.g., clauses 3.1, Schedule B, and 3.2) in order to address deficiencies or uncertainties in the existing data. Atlantic should have been required to address those deficiencies or uncertainties before the amendment application was decided so the data could have been incorporated into the assessment. The Amendment Decision should be rescinded and the proposed trial burn should be completed under a short term approval, not the subject amendments. The ambient monitoring program and fractionation work should be undertaken in conjunction with the trial burn so the information can be used in any permit amendment assessment process. He states that “once a right to discharge is granted, it is exceedingly difficult to revoke that right.”

[162] The Director submits that Mr. Hamilton’s criticism is not based on an allegation that he is prejudiced or harmed by these clauses; rather, his concern is that it is difficult to revoke a right once given. The Director submits that he must consider an application on its merits, not on the basis of how difficult it will be to revoke or alter the permit once a decision is made. The Director submits that he has the statutory authority under sections 16 and 18(3)(i) of the Act to amend or


suspend an authorization to protect the environment, and that Mr. Hamilton lacks standing to assert this ground for appeal, and the Board lacks jurisdiction to consider it.

[163] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, the Panel finds that the Director’s characterization that Mr. Hamilton is most concerned with how difficult it is be to revoke a right is far too narrow, even misleading. At its heart, this ground relates to the sufficiency of information before the Director when he made the decision to approve Atlantic’s application. The Director also provides a responding argument to Mr. Hamilton’s concerns. Such argument is properly made during a hearing on the merits of the appeal. The Panel will not consider the merits of the Director’s argument on this preliminary application.


3.(4th bullet) In the new portions of clause 2.7.1 (under “Authorized Fuel”), the Director erred by authorizing a maximum of 22,000 wet tonnes of whole ties material for storage on site at any one time, when Atlantic only requested a maximum of 20,000 tonnes to provide a 21 day supply. The Director provided no rationale for this increase, and his decision ought to be amended to reflect the amount actually requested by Atlantic. Further, clause 2.8 (“Fuel Stockpile Management and Fire Prevention and Control”) was added to address fire hazard risks, but the “apparent arbitrary and unnecessary increase to the whole tie storage limit is inconsistent with basic risk management principles.”

[165] The Director submits that Mr. Hamilton has not particularized how this additional 10% aggrieves him. The Director states that amended clause 2.8 increases Atlantic’s obligations respecting fire prevention and control. The Director states, “mere complaint about a greater number of whole ties permitted to be stored onsite than originally requested is not sufficient, on its own, to ground a meritorious allegation that the Permit – which principally authorizes waste emissions into the airshed – is harmful to the environment and human health.”

[166] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, the quantity of whole ties to be authorized in the amendment is clearly within the Director’s jurisdiction to decide under section 16 of the Act, and is therefore within the Board’s jurisdiction to consider on an appeal.

[167] The application to strike this part of ground 3 is denied.

3.(6th bullet) The language in clause 2.7.1 (under “Authorized Fuel”), i.e., “the combined rail tie material and clean construction and demolition debris component does not exceed 50% on a wet


weight basis of the total biomass fuel supply calculated on an annual basis”, does not clearly restrict the maximum amount of treated wood which can be mixed with regular hog fuel to 50% at any time. Mr. Hamilton states that this wording needs to be “tightened up” to ensure that the requirements are clear and proper enforcement can occur. [Appellant’s emphasis]

In addition, the “50% maximum treated wood component” value should be changed into a “tonnes per year” to ensure proper enforcement.

[168] The Director submits that Mr. Hamilton has not addressed how he is aggrieved by either issue, so standing is “doubtful”. However, “more importantly, incinerator inputs … are only relevant to the extent they affect permitted emission types and concentrations.” If Atlantic exceeds the permitted discharge limits, it is out of compliance at which time the issue is one of compliance – not permitted limits, and is not within the Board’s jurisdiction to consider.

[169] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, Mr. Hamilton’s concern is focused on whether the language used by the Director in the amendment achieves, or is capable of achieving, the environmental protection goals of the legislation generally, and section 16 specifically. The Director’s submissions are more in the nature of an argument on the merits of this ground for appeal. The merits of this ground will not be decided in this preliminary application.

[170] The application to strike this part of ground 3 is denied.

4. The new clause 2.7.23 (under “Authorized Fuel”) authorizes the disposal of 872 litres per day of waste oil as prescribed in the Hazardous Waste Regulation, but there is no record keeping or reporting requirements attached to this requirement. The decision should be amended to require Atlantic to record the dates, amounts and sources of waste oil received and incinerated, and to include this in an annual report.

[171] The Director provides a detailed explanation of the purpose of the amended clauses 2.7.4 and 2.7.2, and submits that the combined effect of these clauses is that no written record or reporting requirements are necessary for “waste oil used as fuel” for authorized amounts. He submits that Mr. Hamilton has not explained how he is aggrieved by the absence of specific reporting requirements. The Director submits that Mr. Hamilton lacks standing regarding this ground for appeal, and it ought to be struck. He states that Mr. Hamilton simply has a different opinion on the need for specific reporting requirements, which is not properly the subject of an appeal.

3 Mr. Hamilton’s Notice of Appeal incorrectly refers to clause 2.7.4.


[172] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, the subject matter of these new clauses is within the jurisdiction of the Director to add as part of the amendments, and therefore his exercise of discretion is within the Board’s jurisdiction. Finally, the Director’s submissions go to the merits of this ground for appeal. The merits of Mr. Hamilton’s ground for appeal will not be decided in this preliminary application.


[174] The Director’s applications to strike grounds #5 and #6 are for similar reasons. The Panel has, therefore, addressed his applications together.

5. The new clause 2.7.6 (under “Authorized Fuel”) requires the preparation and implementation of a waste acceptance plan by a qualified professional to ensure the exclusion of non-approved fuel types (e.g., metal-based wood preservatives), but does not require monitoring, reporting or enforcement mechanisms. The decision should be amended to require a copy of the plan and annual reporting of the inspection records, delivery weights and training records, and require these records to be available to Williams Lake citizens.

6. The amendments to clause 2.8 (“Fuel Stockpile Management and Fire Prevention and Control”) require Atlantic to prepare a Fire Prevention and Control Plan by a qualified professional in accordance with the BC Fire Code, and the plan must contain documents plans and procedures to prevent and control spontaneous combustion of stockpiled hog fuel. The plan is to be prepared and implemented prior to accepting rail tie material at the facility, but does not include any “reporting out” requirements. The decision should be amended to require annual reporting, to require these records to be available to Williams Lake citizens, and to require a minimum annual site training/coordination with the City’s fire department and the Ministry of Forests’ firefighting services.

[175] The Director submits that Mr. Hamilton lacks standing to appeal either of these two clauses and these grounds ought to be struck. The Director states that clause 2.7.6 is a new requirement that, on its face, is more protective of the environment and human health, and puts Mr. Hamilton’s standing as a person “aggrieved” in dispute. Further, a lack of specific reporting requirements within these clauses does not alter their very nature to bring them under the Board’s jurisdiction.

[176] Regarding clause 2.8, the Director submits that there were no reporting requirements in this clause prior to the amendments, and therefore, there is no appealable decision under sections 99 and 100 of the Act.

[177] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not


established that it is plain and obvious that these grounds for appeal are beyond the Board’s jurisdiction. Rather, the amendments made in these clauses are clearly within the jurisdiction of the Director under section 16 of the Act. The Director exercised his discretion to include, or not include, certain requirements in these amended clauses. The Board has the jurisdiction to consider whether additional requirements are needed to protect the environment.

[178] The application to strike these grounds for appeal is denied.

7. Amendments to clause 3.1.3 (“Ash Analysis”) specify an ash testing schedule that contravenes requirements of the Hazardous Waste Regulation “which strictly prohibits the discharge of hazardous waste into industrial landfills.” This clause should be amended to require Atlantic to immediately stop discharging the ash and arrange disposal of treated wood waste ash in an approved hazardous waste disposal site in accordance with the Hazardous Waste Regulation. The ash should not be discharged to the landfill unless compliance is confirmed.

[179] The Director submits that clause 2.6 (“Disposal of Ash”) does not allow ash that constitutes “hazardous waste” to be disposed of in the landfill under the Landfill Permit. In fact, he submits that the Landfill Permit expressly prohibits the disposal of hazardous waste. The Director submits that this ground for appeal is either directed at a compliance matter, which is beyond the Board’s jurisdiction, or toward the Landfill Permit, which is not the subject of his appeal. Therefore, this ground ought to be struck.

[180] In his reply, Mr. Hamilton concedes that his interpretation of the amendment was incorrect and he accepts the Director’s arguments on this ground. The Panel understands that he consents to this ground being struck.

[181] The application to strike this ground for appeal is granted, by consent.

8. New clause 3.1.4 (“Performance Verification”) defines the trial burn. It states that Atlantic is “authorized to test the shredder and feed system for up to 3,500 wet tonnes of rail ties and construction debris (the trial period).” This clause goes on to require Atlantic to conduct a verification trial at greater than 40% rail tie material based on net weight within 30 days of completion of the trial period, and to include certain data. The results are to be compiled and submitted to the Director within 45 days of the end of the month that the data was collected.

Mr. Hamilton states that:

a) given the public’s concerns with the burning, this clause ought to be amended to require Atlantic to notify the public when this trial period commences, and for Atlantic to maintain records stating when and how much of the commissioning fuel is utilized; and

b) the 40% threshold should be the same as the permitted maximum of 50% treated wood and, “at a minimum, the mixing


rate and power production rates should be calculated and reported for every one hour sampling run.” This would allow a comparison of the hourly power production data to maximum and long term hourly power production data.

[182] The Director submits that Mr. Hamilton has not shown how he is aggrieved by clause 3.1.4 and, specifically, how he is aggrieved by the Director’s choice of notification procedures.

[183] Regarding the 40% threshold, the Director points out that clause 3.1.4 requires “greater than 40% rail tie material.” He submits that, although clause 2.7.1 of the Amendment Decision allows a combined rail tie and clean construction and debris component that does not exceed 50%, incinerator inputs do not have the effect of altering the permitted discharge limits established for each of the identified contaminants. If there is an exceedance in any aspect, then it is a matter of compliance and enforcement. The Director submits that it does not matter whether the verification trial was conducted using a 43.2, 45, 48.5 or 50% proportion of rail tie material; therefore, he submits that “there is no reasonable basis upon which Mr. Hamilton is aggrieved by this parameter ….”

[184] The Director also submits that community involvement and comparative production data may help citizens interpret the representativeness of the results, but the absence of their involvement and this data does not make the clause appealable. He submits that “Individual citizens … have no authority under the Act to hold a permittee to its permit terms ….” The Director submits that these grounds for appeal ought to be struck for lack of standing and/or the Board’s lack of jurisdiction.

[185] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. To the contrary, Mr. Hamilton’s issue regarding notification is clearly a matter that is within the Director’s jurisdiction to consider when exercising his discretion to amend a permit, and his issue regarding the 40% threshold is a matter which can be, and appears to have been, considered by the Director when exercising his discretion to amend the Air Permit under section 16 of the Act. Moreover, many of the Director’s submissions go to the merits of this ground for appeal, which will not be decided in this preliminary application.


9. New clause 3.2 (“Ambient Monitoring”) requires preparation and implementation of a Director approved ambient monitoring program prior to incineration of treated waste wood, but does not allow community involvement. The clause should be amended to give businesses and residents within a specified location of the plant (where the maximum ground level concentrations are predicted to occur) an opportunity to participate, so that information regarding the location of people with pre-existing respiratory and other related health concerns can be used in the planning and implementation of the monitoring program.


[187] The Director submits that this ground falls within the “busybody” category discussed in Gagne #1. He submits that Mr. Hamilton does not enjoy the status of Williams Lake’s representative appellant before the Board, and does not have standing to appeal any matter on behalf of anyone except himself. Moreover, the Director submits this new clause is, on its face, more protective to the environment and human health than was the pre-amendment Air Permit, since there was no such clause before. For these reasons, the Director submits that Mr. Hamilton cannot be aggrieved by the addition of this new, protective requirement.

[188] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Rather, the Director’s addition of this new clause was an exercise of discretion under section 16 of the Act, and is, therefore, within the Board’s jurisdiction to consider in an appeal.

[189] While the Director is correct that this ground for appeal focusses on whether clause 3.2 should require consultation with certain sectors of the community, the fact that it is one person seeking this requirement, rather than every member of those sectors (or a representative from them), does not render it plain and obvious that such a ground is beyond the Board’s jurisdiction. It is difficult to conceive of a ground for appeal in this case that would solely benefit any single appellant. Any ground for appeal relating to air quality, monitoring, reporting and so on, would impact or benefit more than the particular appellant.

[190] Further, the Director’s submissions regarding the protectiveness of this clause go to the merits of this ground for appeal. The merits of Mr. Hamilton’s ground for appeal will not be decided in this preliminary application.


10. The amendment to clause 3.3 (“Operating Conditions”), which specifies the minimum operating conditions to ensure sampling is representative, is inadequate for a facility engaging in the disposal of treated waste wood and should be strengthened. Specifically, the phrase “…as reasonably practicable to the 90th percentile …” should be strengthened to “must be greater than the 95th percentile” to more closely represent maximum authorized limits. In addition, fuel composition has to be calculated and reported on an hourly basis, and hourly power production values should be prepared and reported to enable comparison between long term averages and the three one hour stack tests which constitute a survey.

[192] The Director submits that Mr. Hamilton has not established how he is aggrieved by the 5% shortfall (between 90th and 95th percentile). The Director further submits that, by setting the 90th percentile requirement, he has ensured that the sampling results are more reliable than they were before the amendments. This is, on its face, more protective of the environment. Therefore, the Director submits that this ground ought to be struck for lack of standing as a person aggrieved.


[193] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Moreover, the Director’s submissions go to the merits of this ground for appeal. The merits of Mr. Hamilton’s ground for appeal will not be decided in this preliminary application.


11. New clause 3.5 (“Non-Compliance”) establishes the requirements imposed on Atlantic in the event of non-compliance, one of which is for Atlantic to notify the Director of an exceedance of Worksafe BC limits for volatile organic or PAH compounds within 72 hours. This ought to be reduced to 12 hours, and immediate notification should be given to the businesses operating adjacent to the power plant.

[195] The Director submits that this new requirement is a more restrictive requirement for reporting non-compliance, and Mr. Hamilton is not “specifically aggrieved by a requirement that the permittee notify the Director within 72 hours of possible exceedances of Worksafe BC limits for prescribed substances”. Therefore, the Director submits, this ground for appeal should be struck.

[196] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. The Director’s submissions regarding this clause are properly made during a hearing of the merits. The merits of Mr. Hamilton’s ground for appeal will not be decided in this preliminary application.


12. Amended clause 3.6 (“Reporting”) outlines the requirements of an annual report that is to be made available at the Williams Lake public library within 30 days of submission to the Ministry. This clause reduces the reporting frequency from the previous version. This clause should be amended to provide the public with access to the same reports, at the same time as the Director, and they should be posted on-line as well as deposited at the library.

[198] The Director states that this clause provides the public with access to these reports whereas it did not have access before. The amendment, therefore, provides improved access to the reports. The Director states that, with respect to the allegation that this clause reduces the reporting frequency, (1) it is unclear how Mr. Hamilton is individually aggrieved and has standing to appeal on this basis and, (2) his impression is not accurate. The Director states that clause 3.6 (“Non-Compliance”) ought to be read with the non-compliant reporting requirements in clause 3.5, as together, they are more protective of the environment.


[199] Finally, the Director submits that Mr. Hamilton’s suggestion that authorizations should facilitate community participation falls within the “busybody” category.

[200] As found above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Rather, the Director clearly has the jurisdiction to consider appropriate reporting in light of the increased rail tie burning as is evident from the fact that he made significant amendments to the reporting requirements. Whether the effect of the amendments is protective, as alleged by the Director, is a matter to be decided on the merits.


Other Issues raised by the Director in relation to Mr. Hamilton’s appeal

[202] Mr. Hamilton responded to the Director’s applications, although his responses have not been detailed in the Panel’s decisions above. In a reply to Mr. Hamilton’s response, the Director states that Mr. Hamilton raised issues that were not grounds articulated in his Notice of Appeal (e.g., whether a Health Canada Report about SO2 was considered by the Director), and that Mr. Hamilton raised issues not within the Board’s jurisdiction to consider (e.g., whether directors make good use of their authority).

[203] The Director has taken a very “legal” approach to the appeals filed by lay appellants. He is holding Mr. Hamilton, as well as the other Appellants, to a standard that even many lawyers do not regularly meet in their appeals and their submissions. While Mr. Hamilton’s reply to the applications may have gone beyond some of his grounds for appeal, he was clearly trying to be responsive to the applications and to make his concerns understood.

[204] This is not a court process. This is an administrative tribunal in which the rules of evidence are relaxed. Further, given that the appeal process is to be accessible to the public, without the need for legal assistance, the tribunal will do its best to accommodate self-represented appellants, provided that this can be achieved without compromising the fairness of the entire process.

[205] Having said that, even the courts provide a self-represented litigant with significant latitude to ensure the litigant is heard, and that a legitimate case is not dismissed simply because the person is not familiar with the legal process, the rules of evidence, or has difficulty expressing him or herself. Mr. Hamilton is a concerned citizen who has clearly put a significant amount of time and effort into his Notice of Appeal, and his reply to the Director’s applications. An appellant can amend his or her Notice of Appeal to add new grounds. If Mr. Hamilton’s submissions require an amendment to his Notice of Appeal, the Director should advise him of this in a separate letter. If Mr. Hamilton raises new issues at the hearing which come as a surprise to the Director, the Director may object during the hearing and a ruling will be made by the Hearing Panel. However, at this time the Panel is not prepared to address whether Mr. Hamilton’s responding submissions go beyond his grounds for appeal in the context of this application.


The Represented Appellants

[206] As noted earlier in this decision, each of the Represented Appellants filed separate Notices of Appeal, but their grounds for appeal and remedies sought are identical. Their Notices of Appeal identify 25 grounds for appeal, and a lengthy list of remedies and alternative remedies. The Director takes issue with 19 of the 25 grounds for appeal; specifically, grounds #2, #4, #7, #9, #11, #12, #13, #14, #15, #16, #17, #18, #19, #20, #21, #22, #23, #24 and #25. The Director’s submissions, and the Panel’s findings on his applications, apply equally to all four Notices of Appeal filed by the Represented Appellants.

[207] The Panel has considered the disputed grounds for appeal in chronological order, with the exception of grounds #11-#17 which deal with the disposal of ash. Those will be addressed last, under the heading “grounds for appeal relating to ash”.

2. The amended permit fails to require adequate control over the transportation, shredding and handling of the contaminated rail ties to be used as feedstock.

[208] The Director states that this ground appears to be directed at new clause 2.10, titled “Rail Tie Odour and Polycyclic Aromatic Hydrocarbon Control”. He submits that this requirement is more protective of the environment and human health, therefore, the Represented Appellants are not aggrieved by a clause which, in fact, is more protective; therefore they do not have standing to appeal the Amendment Decision on this ground and it ought to be struck.

[209] As above, the test for standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Moreover, the Director’s submissions go to the merits of this ground for appeal. The merits of Mr. Hamilton’s ground for appeal will not be decided in this preliminary application.


4. The Director erred in failing to require that the ambient air monitoring plan be provided to the Ministry prior to approving the permit amendment.

[211] The Director states that this ground appears to be directed at the new clause 3.2 (“Ambient Monitoring”). He submits that, prior to this amendment, Atlantic was not required to participate in ambient air monitoring. Under clause 3.2, it now is required to do so. Further, the ambient monitoring plan must be implemented before the incineration of the rail tie material. The Director submits that the Represented Appellants are not aggrieved by this new obligation which, in fact, is more protective; therefore, they do not have standing to appeal the Amendment Decision on this ground and it ought to be struck.

[212] The Director also submits that, if Atlantic does not participate in the air monitoring program satisfactory to the Director, it is not in compliance with the Air


Permit. However, compliance and enforcement issues do not fall within the Board’s jurisdiction on this appeal.

[213] The Panel finds that the Director’s argument regarding standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Whether a monitoring plan is required and when the plan must be provided are matters that can be considered by the Director and, in fact, were considered and addressed by the Director in clause 3.2 of the Amendment Decision. Whether or not clause 3.2 is more protective of the environment goes to the merits of this ground for appeal, which will not be decided in this preliminary application.


7. The Director erred in amending the permit without sufficient information on increased emissions of fine particulate (PM2.5), which is an air contaminant of concern in the Williams Lake airshed. The Director relied on Atlantic Power’s assumptions regarding PM2.5 emissions based solely on total particulate emissions from the 2001 trial burn conducted by RWDI.

[215] The Director understands this ground to be directed at clause 1.1.1 (under “Authorized Discharge”) and Table 1 of the Amendment Decision. The Director submits that he reduced the permitted particulate matter discharge by 60%, and the Represented Appellants have no standing to appeal a decision that, in this respect, is more protective of the environment and human health.

[216] The Panel finds that the Director’s argument regarding standing is not applicable to this application to strike. Applying the proper test, the Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. The issue of air quality generally, and particulate matter specifically, fall within the general requirement in section 16 of the Act that an amendment protect the environment. The Director’s submissions on this ground for appeal are, in essence, an argument on the merits of this ground which will not be decided in this preliminary application.


9. The Director erred in amending the permit without test performance data on the shredder and feed system.

[218] The Director understands this ground to be directed at clauses 2.9 (“Fugitive Dust Control”) and/or 2.10 (“Rail Tie Odour and Polycyclic Aromatic Hydrocarbon Control”) of the Amendment Decision. He submits that the only change made to clause 2.9 was administrative in nature: he changed the word “shall” to “must”. This change has no substantive effect on the Air Permit requirements.

[219] Clause 2.10 is a new requirement for Atlantic to control and suppress fugitive odour and PAH emissions associated with the transport, storage and processing of rail ties. The Director suspects that it is the “processing” of rail ties that is the subject of this particular ground for appeal. However, the ground does not


particularize how the Represented Appellants are aggrieved by a lack of test performance data on the rail tie shredder and feed system, beyond reasonably anticipated concerns of fugitive dust and fugitive odour, which are already addressed by clauses 2.9 and 2.10 of the Air Permit. If there are possible exceedances of the Worksafe BC limits for volatile organics of PAHs beyond Atlantic’s property, then the Director must be notified under clause 3.5 (“Non-Compliance”). Accordingly, the Director submits that the Represented Appellants do not have standing to appeal on this ground.

[220] The Represented Appellants submit that the Director’s arguments go to the merits of the issue, not to whether the topic is within the Board’s jurisdiction. Nevertheless, in response to the Director’s request for particulars, the Represented Appellants state that the last time that the facility burned contaminated rail ties, there was “excessive dust and odour caused by the shredder and feed system” to the extent that Atlantic stopped burning rail ties. The Represented Appellants submit that the Director erred in allowing the facility to burn up to 50% contaminated rail ties without having considered test performance data on the shredder and feed system which, they argue, are relevant considerations to the change in the feedstock.

[221] Aside from the Director’s reliance on the incorrect test to strike a ground for appeal, the Panel agrees that his arguments go to the merits of this ground for appeal. The Panel agrees with the Director that the change to clause 2.9 is administrative, but it does not appear that ground #9 relates to that clause alone, if at all. The Panel finds that it is not plain and obvious that this ground for appeal is beyond the Board’s jurisdiction.


18. The Director erred in failing to require reporting and monitoring of odour complaints received by the permittee, and reporting on incidents of incineration of hydrocarbon contaminated absorbent material.

[223] The Director submits that, prior to the Amendment Decision, there was no provision relating to the suppression of fugitive odour. Clause 2.10 (“Rail Tie Odour and Polycyclic Aromatic Hydrocarbon Control”) imposed a new requirement on Atlantic. However, the fact that he did not require Atlantic to monitor and report odour complaints is not an appealable error. The Director explains how a member of the public can report complaints of odour to the Ministry. He also explains that clause 2.10 contemplates suspending the authorization to incinerate rail ties if odour or PAH becomes a nuisance. The Director submits that this portion of ground #18 ought to be struck on the basis that the Represented Appellants are not aggrieved by it and, therefore, lack standing.

[224] Regarding the incineration of hydrocarbon contaminated absorbent material, the Director submits that the incineration of this material was, and continues to be, permitted by clause 2.7.2 (under “Authorized Fuel”). The Director states that the Represented Appellants do not dispute the amount of waste oil authorized to be disposed by combustion; rather, they take issue with the absence of specific reporting requirements respecting the same. The Director submits that they have


not explained how they are aggrieved by this, particularly in light of the additional requirements imposed by the Hazardous Waste Regulation. The Director submits that the Represented Appellants lack standing respecting this ground for appeal, and it ought to be struck.

[225] The Represented Appellants submit that the Director’s submissions, in effect, are that the new clause 2.10 will prevent any odour problems. Whether this is the case is a matter for evidence and argument. The Represented Appellants submit that it is not plain and obvious that the Board has no jurisdiction to address their argument that there ought to be a requirement for Atlantic to report, to the Director, all odour complaints received by Atlantic from the public.

[226] Regarding the second part of the Represented Appellants’ ground regarding reporting, the Director’s explanation for clause 2.7.2 is “cogent”, but they still believe that the permit ought to require Atlantic to report to the Director on the use of clause 2.7.2.

[227] Aside from the Director’s use of the wrong test to strike this ground for appeal, the Panel finds that the subject matter of this ground falls within the Director’s authority under section 16 of the Act. Further, the Panel agrees with the Represented Appellants that the Director’s submissions simply highlight the need for this ground to be considered on its merits at the hearing.


19. The Director erred in failing to require the permittee to post the permittee’s monitoring reports on the Internet for public accessibility.

[229] The Director submits that this ground relates to new clause 3.6 (“Reporting”), which introduced a requirement for Atlantic to make its annual reports available for public viewing at the Williams Lake public library. He submits that this provides the public with access to reports which it did not previously have access to. The Director submits that there is no reasonable basis for the Represented Appellants to be aggrieved by this improvement, thus this ground ought to be struck.

[230] As found above, the Director incorrectly applies the test for standing to his application to strike. Applying the correct test, the Panel finds that it is not plain and obvious that the Board does not have jurisdiction over this ground. To the contrary, the Director addresses public access to the annual reports in the amendments. This ground is simply an extension of that exercise of power. As it is apparently within the power of the Director, it is also within the power of the Board on appeal: the Board may make any decision the director could have made that the Board considers reasonable in the circumstances.


20. The Director erred in failing to consider that the increase in rail tie incineration would give Williams Lake a reputation as a hazardous waste incineration destination, and would draw more hazardous waste disposal projects to the community.


[232] The Director submits that this ground for appeal is entirely speculative and incapable of proof. Further, the Board has no jurisdiction over decisions not yet made. Therefore, he submits that this ground for appeal ought to be struck.

[233] The Represented Appellants submit that this ground does not require the Board to address future statutory decision: that argument is a “straw man”. They state that, on an application to strike, the asserted facts are deemed to be true. They then state, “Assuming the decision will indeed attract other hazardous waste disposal projects to Williams Lake, there would be environmental consequences and it is not unreasonable to suggest that the Director should take such consequences into account. The Director may disagree, but that is a matter for evidence and argument.”

[234] In reply, the Director states that the contrary is true. He relies on the Board’s decision in Fitzpatrick, where the Board states at paragraph 28:

28. As a preliminary point it should be clarified that, in making a decision on this application, the factual assertions set out in the Amended Appeal are not being accepted by the Panel as “the facts” simply because they are asserted in the Amended Appeal or are referred to in this decision. The factual assertions set out in the Amended Appeal will be the subject of evidence at the hearing, and may also be the subject of objections and contrary evidence at the hearing. Ultimately, the Hearing Panel will be required to determine the facts, their relevance to the issues, and apply the facts to the law in order to make a decision on the merits of the appeal. [Director’s emphasis]

[235] The Director also points out that this ground relies upon the premise that creosote treated rail ties are “hazardous waste”; however, this premise is not accurate. Rather, waste wood products treated with wood preservatives or wood protection products registered under the Pest Control Products Act (Canada), are expressly excluded from the definition of “hazardous waste” in the Hazardous Waste Regulation, B.C. Reg. 63/88.

[236] The Panel finds that the Act, and particularly sections 14 and 16, focusses on environmental concerns and protections. The Panel finds that no reasonable interpretation of section 16 – or section 14 - would allow the potential impact to a community’s reputation to be considered as part of the decision-making process. The Panel finds that it is plain and obvious that this is not a matter that relates to the protection of the environment, or any of the applicable sections for amending a permit. The Panel further finds that the possibility that granting one permit will encourage other permit applications is not a relevant consideration under the Act, and a permit (or permit amendment application) cannot be rejected by a statutory decision-maker under section 16 on this basis.

[237] The application to strike this ground for appeal is granted.

[238] The Director applies to strike grounds for appeal #21 and #22 for similar reasons. The Panel has addressed these grounds together.

21. The Director erred in failing to consider alternatives to incineration as a way to deal with excess creosote and PCP contaminated rail ties.


22. The Director erred in failing to consider other incinerators as an alternative to deal with excess rail ties.

[239] The Director submits that these grounds ought to be struck because the Amendment Decision was made pursuant to section 16(1)(b) of the Act, based on Atlantic’s application to increase the percentage of rail ties it is permitted to use as a fuel source. The Amendment Decision was not made as a way to deal with excess rail ties, as alleged. The Director submits that consideration of alternatives to incineration, and alternative incinerators, is irrelevant to the application that was before the Director, and these grounds are not properly before the Board on appeal; therefore, they ought to be struck.

[240] The Represented Appellants submit that the Ministry justified incineration for energy as being preferable to landfilling as a method of managing waste rail ties, and that Atlantic claimed in its “Technical Assessment Report” that converting these rail ties to energy is an “environmental improvement”. The Represented Appellants submit that these statements establish that the management of retired rail ties was a factor considered by the Director, and that his position on this application simply shows that the parties differ on whether disposal alternatives were adequately considered. They submit that these matters ought to be resolved at the hearing, and these grounds should not be struck.

[241] The Panel agrees with the Director that alternatives to incineration and an alternative incinerator were not relevant considerations for the Director under the Act and, therefore, the Board is similarly constrained. The Director was faced with Atlantic’s application to amend, and the question before him was whether the amendment could be authorized in a manner that it would protect the environment.

[242] A similar question was addressed in Harris, supra. As previously quoted in this decision, the Board in Harris determined that its jurisdiction on the appeal was informed by the director’s jurisdiction as found within section 16. At paragraph 66, the Board states:

66. Regarding the Appellants’ submissions concerning alternative sites and other matters beyond the Amended Permit’s conditions, the Panel notes that the Act strictly limits the Board’s review powers to the Director's decision to issue the Amended Permit, and the question of whether it protects the environment.

[243] The application to strike these grounds for appeal is granted.

23. The Director erred in failing to limit the amount of contaminated rail ties in the feedstock to the amount of contaminated rail ties Atlantic Power has publicly stated it intends to burn. For example, Atlantic Power has publicly stated an intention to burn only up to 25% of biomass weight in rail ties and so the amended permit should not allow more than 25% contaminated rail ties in the feedstock.

[244] The Director states that Atlantic’s application for a permit amendment was for an increase in the use of rail ties to 50%. This application was the subject of public notification pursuant to the Regulation, and is the subject of the Amendment Decision. The Director states that this ground lacks sufficient particularization


respecting when the statement was made, to whom, by whom, and in what context. Further, the Director submits that incinerator inputs do not override permitted discharge maximums. If permitted discharge maximums are exceeded, Atlantic is out of compliance with the Air Permit, notwithstanding the proportion of rail ties used as a fuel source at any given time. Accordingly, this ground ought to be struck.

[245] The Represented Appellants provided the requested particulars to the Director in their submissions. They then advise that they will argue that “if the burning of contaminated rail ties is to be allowed at all it should be limited to an amount that is no more than what AP [Atlantic] says it intends to use.” The Represented Appellants submit that this is a legitimate argument.

[246] The Panel finds that the Director has not established that it is plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. The Amendment Decision allows a specific quantity of treated rail ties to be burned on specified terms and conditions. Whether or not this ground for appeal will succeed, is a matter that is properly the subject of evidence and argument in a hearing on the merits. The Panel will not decide the merits of this ground for appeal in this preliminary application.


24. The Director erred in failing to require Atlantic Power to provide security for potential future cleanup costs.

[248] The Director submits that, prior to the Amendment Decision, Atlantic was not required to post security for potential future clean-up costs. The fact that such a provision was not included as part of the Amendment Decision does not amount to an appealable error. Moreover, the Director submits that it is unclear how the Represented Appellants would be aggrieved by a lack of posted security. Therefore, the Director submits that this ground ought to be struck.

[249] The Represented Appellants submit that failing to require security for potential future clean-up is an appealable error. They submit that the Director has the power to require security under section 14(1)(b) of the Act and that, on an appeal, the Board has the same power as the Director, or may refer the matter back to the Director. The Represented Appellants submit that it is not plain and obvious that the Board has no jurisdiction to consider whether financial security is required, and this ground should not be struck.

[250] The Panel agrees with the Represented Appellants’ analysis of jurisdiction, but reads down this ground as being limited to the question of security for any additional cleanup or costs related to the increased burning of treated rail ties, and any other new substances authorized by the Amendment Decision.


25. The Director failed to provide a reasonable opportunity for informed public comment on the proposed amendment, both generally and in particular by refusing to provide, or to require the


permittee to provide, a map more detailed than 1:160 000, which is inadequate to evaluate neighbourhood scale effects.

[252] The Director states that the amendment application was the subject of public notification pursuant to the Regulation. Sections 5, 6 and Schedule A of the Regulation provide the applicable posting and publication requirements for a “significant amendment” application. The Director notes that the Represented Appellants are not alleging that the posting requirements in the Regulation were not followed. Rather, they argue that the public’s opportunity to comment on the proposed amendment was unreasonable. He submits:

An appeal of a decision to amend a permit is properly focused on the changes that were made to that permit, and the requirements of the Act and regulations. Any argument that the legally required notifications were insufficient is not an issue that is properly raised ….

[253] The Director submits that this issue should be dealt with by amendment to the Regulation. The Director submits that this matter is not properly before the Board, and it ought to be struck.

[254] The Represented Appellants submit that they will argue that the Regulation is not the only source of consultation requirements, and that the Director’s failure to provide, or require Atlantic to provide, a map detailed enough to evaluate neighbourhood scale effects was an error and, in any event, contrary to the Regulation. They submit that this is an issue that should be heard by the Board: it is not plain and obvious that the Board has no jurisdiction to consider it.

[255] The Regulation states at section 4(3) that “Despite subsections (1) and (2) [specifying the type of notice required for applications for permits and amendments to permits], if, in the opinion of a director, any method of giving notice as specified in Schedule A is not adequate or practical, the director may, within 14 days of receipt of the application, require an applicant to give notice of the application by another method that, in the opinion of the director, is more effective.” Whether “method” includes requiring a more detailed map, is a matter properly left for legal argument. However, it is apparent from this section that the Director has some discretion when it comes to the type of notification under the Regulation; therefore, it is not plain and obvious that this ground for appeal is beyond the Board’s jurisdiction. Further, the Represented Appellants submit that there is an additional source(s) of consultation requirements. What those are, and whether they apply to this case, is clearly in dispute.


Grounds for appeal relating to ash

[257] Grounds #11-#17 of the Represented Appellants’ Notices of Appeal relate in some manner to the disposal of ash. The Director argues, generally, that these grounds are beyond the Board’s jurisdiction because the grounds relate, in substance, to the Landfill Permit. The Director’s arguments are set out under each section.


11. The Director erred in amending the permit without the permittee having provided an adequate plan for managing the disposal of fly ash and bottom ash associated with burning up to 50% more rail ties.

[258] The Director submits that this ground appears to be a collateral attack on the Landfill Permit, which is beyond the Board’s jurisdiction to consider in relation to this Amendment Decision.

12. The Director failed to require the permittee to provide a characterization of the fly ash and proof that the fly ash would meet the criteria for disposal in the landfill subject to permit #8809 [the Landfill Permit].

[259] The Director submits that this is not a deficiency in the Amendment Decision or an appealable error. The Landfill Permit sets the criteria for disposal in the landfill and, if the ash does not meet the criteria, it is not authorized to be deposited in the landfill under the Landfill Permit. Instead, Atlantic is obligated by clause 2.6 to use an alternate landfill location approved by the Director. The Director submits there is no reasonable basis for this ground, and it ought to be struck.

13. The Director erred in failing to consider whether the remaining capacity in the landfill subject to permit #8809 [the Landfill Permit] is sufficient to provide a long-term ash disposal solution.

[260] The Director submits that this is not a proper ground for appealing the Amendment Decision. The remaining capacity of the landfill, including the point at which it reaches capacity, is a decision that has and will continue to be made pursuant to the Landfill Permit. The Director submits that it is plain and obvious that the Board lacks jurisdiction to consider this ground, and it ought to be struck.

14. The Director failed to include in the amendment a provision that approval of 50% rail ties in the feedstock on an ongoing basis is conditional on the fly ash and bottom ash being disposed of in a landfill approved by the Ministry for that purpose.

[261] The Director submits that this is not a deficiency in the Amendment Decision or an appealable error. As stated above, clauses 2.6 (“Disposal of Ash”) and 3.1.3 (“Ash Analysis”) operate in conjunction. If the composition of fly ash and bottom ash does not meet the requirements of the landfill under the Landfill Permit, then such combustion residue is not permitted to be deposited in that particular landfill. The Director submits that there is no reasonable basis for this ground, and it ought to be struck.

15. The Director failed to consider whether the landfill permitted by permit #8809 [the Landfill Permit] is already being operated in violation of permit conditions and causing harm to the environment and whether adding to the landfill fly ash and bottom ash from the power plant running up to 50% rail ties in the feedstock would exacerbate the environmental harm.


[262] The Director submits that this ground for appeal is directed at whether Atlantic is in compliance with the Landfill Permit, which is not before the Board in these appeals and ought to be struck.

16. The Director erred in approving the amendment without having any information on the slope stability of the landfill subject to permit #8809 [the Landfill Permit] and the impact on Williams Lake and the watershed if the deposition of ash associated with the 50% rail tie feedstock resulted in subsidence.

[263] The Director submits that the landfill operation authorized by the Landfill Permit is not properly before the Board in these appeals, and this ground ought to be struck.

17. The Director erred by not requiring an ash management plan to address concerns regarding dust, surface run-off and slope stability, prior to approving the permit amendment.

[264] The Director submits that this ground for appeal is directed at activities authorized by the Landfill Permit. Accordingly, it ought to be struck.

[265] Atlantic agrees with, and adopts the Director’s submissions under each of these grounds, but adds that these grounds all concern the issue of the landfill and ash deposal requirements. It states:

None of the issues are sufficiently connected to the Amendments to the Air Emissions Permit [the Amendment Decision] to give rise to jurisdiction to appeal. For example, whether there is sufficient remaining capacity in the landfill subject to permit #8809 [the Landfill Permit] is not a question of the Air Emissions Permit. The Amendments will not increase the volume of ash nor was the volume of permitted discharge under permit #8809 amended. If the landfill becomes unavailable because it has no further capacity, then Atlantic Power will be required to provide another solution for ash disposal which will be subject to other permit requirements. There is no jurisdiction regarding these issues.

[266] The Represented Appellants made one submission in relation to these seven grounds. The Represented Appellants acknowledge that the operation of the landfill is governed by the Landfill Permit, and that they have appealed the decision to amend that permit. However, they submit that the grounds for appeal relating to waste ash are not collateral attacks on the Landfill Permit. They submit that the common denominator of these grounds is that it was not appropriate, under the Act, for the Director to amend the Air Permit to allow burning of up to 50% contaminated rail ties without having fully considered, and resolved, the issues associated with the waste ash that would be produced by the more-toxic feedstock. The Represented Appellants submit that this is an argument that goes to the fundamental merits of the appeals.

[267] The Represented Appellants submit that the Director’s position on these grounds for appeal reflects a “silo” approach; i.e., decisions are made regarding emissions of pollutants to the air in isolation from decisions regarding depositing


pollutants to the ground. In their view, the Director is making arguments that go to the merits of the grounds. He is asking the Board to assume that burning up to 50% contaminated rail ties cannot possibly have any adverse environmental consequences associated with the waste ash because the Landfill Permit is automatically deemed to be adequate. They submit that this issue ought to be determined on the basis of evidence and argument at the hearing of the appeals.

[268] For all of these reasons, the Represented Appellants submit that it is not plain and obvious that these grounds cannot succeed.

[269] In reply, the Director submits that the two permits are legally distinct and were, in fact, made by two different directors. The Director submits that these Appellants are conflating the appeals of the amendments to the Landfill Permit with the amendments to the Air Permit. Consequently, he asks the Panel to disregard many of the Represented Appellants’ submissions in support of their grounds #11-#17 regarding ash.

[270] The Panel finds that the grounds for appeal which go to the heart of compliance with the Landfill Permit, or to the terms and conditions of the Landfill Permit, are not properly before the Board in these appeals. While the Amendment Decision does address ash in some of the clauses, this does not open the door to considering the merits of the Landfill Permit.

[271] Among other things, the Landfill Permit addresses the maximum rate of annual discharge, the characteristics of the discharge, maintenance of works, development of a landfill closure plan, dust management, surface runoff, erosion control, monitoring and reporting, and the requirements for an annual report. The Panel also notes that the Director’s submissions indicate that the landfill authorized under the Landfill Permit, may not be the only landfill that can be used for ash from the facility.

[272] The grounds for appeal that are plainly and obviously addressing matters under the Landfill Permit and, therefore, are beyond the Board’s jurisdiction, are grounds #13 (capacity of landfill under the Landfill Permit), #15 (investigate whether the Landfill Permit is causing environmental harm), #16 (investigate the slope stability of the landfill under the Landfill Permit), and #17 (require an ash management plan that addresses dust, surface run-off and slope stability at the landfill). The application to strike these four grounds is granted.

[273] The Panel finds that, on a generous reading, the grounds for appeal that are not plainly and obviously beyond the Board’s jurisdiction are grounds #11 (whether there should be a plan for managing the disposal of fly ash and bottom ash associated with increase in rail tie burning to be satisfied that the proposed amendment can protect the environment); #12 (whether there should be a characterization of the fly ash and proof that the fly ash will meet the criteria for disposal in the landfill before the amendment is granted); #14 (whether the amendments should be conditional upon the fly ash and bottom ash being disposed of in a landfill). Under some of these grounds, the Director provides arguments which properly go to the merits of the grounds. Where there is some question about whether the ground is within the Board’s jurisdiction, as with grounds #12 and #14, the Board will not strike the ground.


DECISIONS

[274] In making these decisions, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated herein.

Applications to dismiss for lack of standing

[275] For the reasons set out above, the Panel denies all nine of the applications to dismiss the appeals for lack of standing to appeal.

Applications to strike grounds for appeal

[276] Mr. Luscombe’s remedy requesting the Board to prohibit all rail tie burning at the facility will be read down to a request that is limited to the quantity of rail ties authorized by the Amendment Decision.

[277] For the reasons given in this decision, the applications to strike portions of the Notices of Appeal of John Pickford, Beverley Haskins, Peter Luscombe, and John Henry Dressler are denied.

[278] The application to strike Ground #7 of Mr. Hamilton’s appeal is granted, by consent. The application to strike the balance of Mr. Hamilton’s grounds for appeal is denied.

[279] The applications to strike grounds for appeal #13, #15, #16, #17, #20, #21, and #22 in the Notices of Appeal of Mr. O’Toole, Ms. Delainey, Ms. Bravi and Ms. McLellan, are granted. The applications to strike their other grounds for appeal are denied.

“Alan Andison”

Alan Andison, Chair Environmental Appeal Board

March 29, 2017

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APPENDIX “A” (The bold and underlining in the table is the Director’s)

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