Appeal No. 00-006

 

Date of Report and Recommendations - April 17, 2000

 

IN THE MATTER OF Sections 84, 85, 87, 92 and 93 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Mr. William and Ms. Susan Procyk with respect to Amending Approval 236-01-02 issued to Dow Chemical Canada Inc. by the Director, Northeast Boreal Region, Alberta Environment.

Cite as: Procyk v. Director, Northeast Boreal Region, Alberta Environment re: Dow Chemical Canada Inc.

 


TABLE OF CONTENTS

BACKGROUND 1
THE MEDIATION MEETING/SETTLEMENT CONFERENCE 5
RECOMMENDATIONS 6
RESOLUTION AGREEMENT 7
ORDER 8

 

MEDIATION MEETING BEFORE

Dr. M. Anne Naeth

APPEARANCES

Appellant: Mr. William and Ms. Susan Procyk

Approval Holder: Ms. Alice Chapman, counsel, Fraser Milner, and Mr. Mark Bradley, counsel, Dow Chemical Canada Inc., representing, Mr. Ken Tsang, Dow Chemical Canada Inc.

Department: Mr. David Day, counsel, Alberta Justice, representing Mr. Kem Singh, Director, Northeast Boreal Region, Ms. Sandra Pollard, Alberta Environment

 

BACKGROUND

[1] On December 21, 1999, Mr. Kem Singh, Director, Northeast Boreal Region, Alberta Environment (Department), issued Amending Approval 236-01-02 to Dow Chemical Canada Inc. (Approval Holder) for the construction, operation and reclamation of the Fort Saskatchewan chemical manufacturing plant.

[2] On January 29, 2000, the Environmental Appeal Board (Board) received a Notice of Appeal from Mr. William and Ms. Susan Procyk (Appellants), objecting to the Amending Approval issued to Dow Chemical Canada Inc.

[3] The Board wrote to the Appellants on February 2, 2000, acknowledging receipt of their appeal, and requested they indicate if their appeal had been filed within the 30-day period required by section 84(4)(c) of the Environmental Protection and Enhancement Act(1), and if not, whether there are "sufficient grounds" for doing so. By copy of this letter to the Approval Holder and the Department, the Board advised that they may also provide comments.

[4] On February 4, 2000, the Board received a facsimile from Mr. Procyk stating:

"In response to our telephone conversation February 3, 2000 would you please use this corrected information with my appeal. The approval date on my appeal dated January 29, 2000 should have been January 4, 2000. Copy of a public notice in the Fort Record Dated January 4, 2000 enclosed."

[5] On February 4, 2000, the Board wrote to the Appellants acknowledging receipt of their previous letters and appeal and requested the Department provide copies of all related correspondence, documents and materials related to this matter. On the same day, the Board also wrote the Approval Holder and advised them of the Notice of Appeal and subsequent letter.

[6] According to standard practice, on February 4, 2000, the Board wrote to the Natural Resources Conservation Board (NRCB) and the Alberta Energy and Utilities Board (AEUB) asking whether this matter had been the subject of a hearing or review under their respective Boards' legislation. On February 10, 2000, the NRCB stated that they did not hold any hearing or review related to this appeal. To date, the Board has not received a response from the AEUB with respect to this appeal.

[7] On February 17, 2000, the Department provided copies of the documents requested in the Board's February 4, 2000, letter and concerns with respect to this appeal stating that:

"2. By copy of this letter, I invite the Appellants, William and Susan Procyk, to contact me by mail or telephone (427-0898) to arrange a meeting with Sandra Pollard, Industrial Approvals Engineer, and myself. Ms. Pollard is available to provide information and answer questions about the Amending Approval within the expertise and authority of Alberta Environment. We will continue to be cooperative and transparent.

3. EAB Appeal No. 99-137 (date of decision November 24, 1999) addressed the substance of the items now being complained of by the Appellants. The EAB carefully listed and responded to those concerns. I respectfully submit that it is an error for the Appellants to attempt to use this appeal process to reopen EAB Appeal No. 99-137.

4. The Appellants have not addressed the substance of Amending Approval 236-01-02. We submit that the initial question the Appellants need to work with, is "What is the mistake that Mr. Kem Singh, (designated Director under the Environmental Protection and Enhancement Act for Alberta Environment) made my issuing Amending Approval 236-01-02"? The answer should address specifics from the Amending Approval.

The Appellants' responses to the EAB do not address the Amending Approval. We submit that the "details", "grounds", and "relief" set out by the Appellants do not amount to an appeal against Amending Approval 236-01-02."

 

[8] On February 24, 2000, the Board forwarded the information received from the Department on February 17, 2000, to the Appellants and the Approval Holder. On the same day, the Board wrote to the Appellants, the Approval Holder and the Department requesting that the parties advise whether they wished to have a mediation meeting/settlement conference under section 11 of the Environmental Appeal Board Regulation(2) and if there were any other persons who may have an interest in the appeal. The Appellants were asked in their letter from the Board to explain how they were directly affected by the Amending Approval and to explain in more detail the environmental concerns they had with the Amending Approval.

[9] On February 25, 2000, the Approval Holder advised the Board that Ms. Alice Chapman, Fraser Milner, would now be representing them.

[10] On March 2, 2000, the Approval Holder wrote to the Board advising that Dow Chemical Canada Inc. would participate in a mediation and advised that there are no other persons who would have interest in this appeal. In their letter, they also advised the Board of the following:

"With respect to the appeal of William and Susan Procyk, we have reviewed the submissions of Alberta Justice dated February 17, 2000 and we agree that the issues now being raised by the Procyks were addressed in EAB Appeal 99-137 dated November 24, 1999. In its decision in EAB Appeal No. 99-137, the Board considered that the issues now being raised in the Notice of Appeal had been addressed by the Alberta Energy and Utilities Board in hearings held in 1996 and 1997.

We also agree with Alberta Justice that the "details", "grounds" and "relief" set out in the Notice of Appeal do not constitute an appeal of Amending Approval No. 236-01-00."

[11] On March 2, 2000, the Appellants sent a facsimile dated March 1, 2000, to the Board which provided comments to the Board on their "directly affected" status, detailed environmental concerns, and procedural issues advising they would be willing to attend a mediation meeting/settlement conference. On this same facsimile, the Appellants also included a letter of February 24, 2000, to the Board in response to the Department's letter of February 17, 2000, stating:

"In reply to Mr. Day's letter dated February 17, 2000, it was not my intent to reopen EAB Appeal No. 99-137 as mentioned by Mr. Day. I am appealing Approval 236-01-02 and the information I submitted is to inform the EAB that my farm was already directly affected by an existing approval and that Approval 236-01-02 will only magnify existing problems. ..."

[12] On March 6, 2000, the Department expressed concerns with respect to the Appellants' letter of March 1, 2000. The Department advised the Board that they would be glad to attend a mediation meeting/settlement conference, however they stated:

"Our willingness to co-operate with mediation is not a waiver of our concern that the materials filed by William and Susan Procyk do not amount to an appeal against Amending Approval 236-01-02."

[13] On March 8, 2000, after reviewing all written representations, the Board wrote to the parties, informing them that a mediation meeting/settlement conference would be held on April 14, 2000, in the Board's office in Edmonton.

[14] On March 22, 2000, the Approval Holder wrote to the Board stating:

"We wish to make it clear that while Dow is prepared to attend the mediation meeting/settlement conference, Dow is not thereby agreeing that the EAB has jurisdiction to decide the land use issues and noise issues now being raised by the Procyks or that the materials filed by the Procyks constitute an appeal from Amending Approval 236-01-02. Indeed, we do not believe that the EAB has jurisdiction to decide land issues or matters previously considered and decided by the EUB. Dow reserves its right to raise these preliminary matters in any future proceedings.

We have had the opportunity to review the form of Participants' Agreement to Mediate sent to us under cover of your letter of March 8. The agreement implies that there is a valid appeal. We request that a clause be added that the parties by their participation in the mediation have not waived their right to raise preliminary jurisdictional issues in future proceedings."

[15] On March 30, 2000, the Appellants wrote to the Board in response to the March 22, 2000, letter from the Approval Holder stating:

"In Ms. Chapman's letter dated March 22, 2000 I don't understand what she is referring to when she mentions land use issues. My concern is for the safety of people living and working on my farm. I repeat. My concerns is for the SAFETY of people living and working on my farm.

We object to the request made by Ms. Chapman in her letter dated March 22, 2000 that a clause be added to the Participants' Agreement to Mediate. We believe the Participants' Agreement to Mediate should be as sent to us with your letter dated March 8, 2000."

 

THE MEDIATION MEETING/SETTLEMENT CONFERENCE

[16] Pursuant to section 11 of the regulations, the Board conducted a mediation meeting/settlement conference at the Board's office in Edmonton on April 14, 2000, with Dr. M. Anne Naeth as presiding Board member.

[17] According to standard practice, the Board called a mediation meeting/settlement conference in an attempt to mediate or facilitate through a settlement conference the resolution of this appeal; or failing that, to structure procedural arrangements for the oral hearing. The Board invited representatives from each party to participate in the mediation meeting/settlement conference.

[18] In conducting the mediation meeting/settlement conference, Dr. Naeth reviewed the appeal and mediation process and explained the purpose of the mediation meeting. She then circulated copies of the Participants' Agreement to Mediate which all participants signed.

[19] Following productive and detailed discussions, a resolution evolved and the attached settlement was signed (page 7 of this report).

RECOMMENDATIONS

[20] The Board recommends that the Minister of Environment approve the conditions of the resolution contained herein.

[21] Further, with respect to section 92(2) and 93 of the Environmental Protection and Enhancement Act, the Board recommends that copies of this Report and Recommendations, and of any decision by the Minister, be sent to the following parties:

Dated April 17, 2000, at Edmonton, Alberta.

Dr. M. Anne Naeth

 

ORDER

I, Gary Mar Q.C. Minister of Environment, pursuant to Section 92 of the Environmental Protection and Enhancement Act, hereby make the order in the attached schedule being the Environmental Appeal Board Appeal number 00-006-R Order.

Dated at Edmonton, Alberta, this 2nd day of Mayl, 2000.


Honourable Gary Mar, Q.C.
Minister of Environment

FOOTNOTES

1. S.A. 1992, ch. E-13.3 as amended (hereinafter "the Act").

2. AR 114/93 (hereinafter "the regulations").

 

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