Appeal No. 00-074, 075, 077, 078, 01-001-005 and 011

Date of Preliminary Meeting - March 1, 2001

Date of Decision - March 13, 2001

 

IN THE MATTER OF Sections 84, 85, 85.1 and 87 of the Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3

-and-

IN THE MATTER OF appeals filed by Mr. K.F. Bailey on behalf of Ms. Gwen Bailey, Mr. Steven J. Ferner on behalf of Enmax Energy Corporation, Mr. Nick Zon, Mr. Blair Carmichael, Mr. D.R. Thomas Q.C. on behalf of Ms. Donna Thomas and the Summer Village of Kapasiwin, Mr. I. Samuel Kravinchuk on behalf of Mr. James Paron, His Worship Mayor William F. Purdy on behalf of the Village of Wabamun, Mr. David Doull, Mr. F. Locke Boros on behalf of the Lake Wabamun Enhancement and Protection Association, and His Worship Mayor C. Gordon Wilson on behalf of the Summer Village of Point Alison, with respect to Approval 10323-02-00 issued on November 30, 2000 to TransAlta Utilities Corporation by the Director, Northern East Slopes Region, Environmental Service, Alberta Environment.

Cite as: Bailey et al. v. Director, Northern East Slopes Region, Environmental Service, Alberta Environment, re: TransAlta Utilities Corporation.

 

PRELIMINARY MEETING

BEFORE  

Dr. William A. Tilleman, Chair

APPEARANCES

Appellants: Enmax Energy Corporation, represented by Mr. L.A. Cusano, Donahue Ernst & Young; Mr. Nick Zon; Mr. Blair Carmichael; Mr. James Paron, represented by Mr. I. Samuel Kravinchuk; the Village of Wabamun, represented by Mr. Barry Sjolie, Brownlee Fryett; Mr. David Doull; the Lake Wabamun Enhancement and Protection Association, represented by Mr. Brian O'Ferrall, Q.C., Bennett Jones; and the Summer Village of Point Alison, represented by His Worship Mayor C. Gordon Wilson.

Department: Mr. Rick Ostertag, Director, Northern East Slopes Region, Environmental Service, Alberta Environment, represented by Mr. William McDonald and Ms. Renee Craig, Alberta Justice.

Approval Holder: TransAlta Utilities Corporation, represented by Mr. Ron Kruhlak, McLennan Ross and Mr. Alan Harvie, McLeod Dixon.

Board: Mr. Gilbert Van Nes, General Counsel and Settlement Officer; Ms. Sheryl Kozyniak, Executive Director and Registrar; and Ms. Valerie Higgins, Hearing Officer.

NOT ATTENDING

Appellants: Ms. Gwen Bailey, represented by Mr. K.F. Bailey; and Ms. Donna Thomas and the Summer Village of Kapasiwin represented by Mr. D.R. Thomas, Q.C.

 

EXECUTIVE SUMMARY

The Board held an oral preliminary meeting in relation to ten appeals involving the Wabamun thermal electric power plant, located west of the City of Edmonton, within the Village of Wabamun. The appeals were filed in response to a renewal Approval issued to the power plant in November 2000. Generally, the appeals express concern about impacts of the power plant on the adjacent Lake Wabamun. The purpose of the preliminary meeting was principally to determine which issues, included in the Notices of Appeal, were properly before the Board in accordance with section 87 of the Environmental Protection and Enhancement Act and in accordance with the principles of common law. The issue of the standing of the Appellants was also addressed.

Most of the Appellants previously filed appeals in relation to the power plant in 1997, when the previous Approval was issued. Most of the Appellants also attend a previous oral preliminary meeting and a previous Board hearing in relation to the power plant. The previous oral preliminary meeting resulted in the Board issuing Decision EAB Appeal No. 97-005 - 97-016, dated September 26, 1997. The previous Board hearing resulted in the Board issuing Report and Recommendations EAB Appeal No. 97-005 - 97-015, dated December 9, 1997. Subsequent to that Report and Recommendations, the Minister issued his final decision in this matter, agreeing with the Board's recommendations, by way of a Ministerial Order dated December 18, 1997.

Pursuant to section 87 of the Environmental Protection and Enhancement Act, the Board now determines that only the following matters included in the Notices of Appeal are properly before the Board for the purposes of this hearing:


TABLE OF CONTENTS

I. BACKGROUND 1
II. PRELIMINARY MEETING 4
A. Enmax Appeal 5
1. No Statement of Concern 5
2. Extending the Time to File 8
3. Enmax as Approval Holder  9
4. Previous Consideration by the AEUB 10
B. Issue Estoppel and the Preliminary Motion 12
C. Standing 14
1. Village of Wabamun 15
2. LWEPA  15
D. Previous Issue 19
E. New Issues 22
F. Issues the Board will not Consider 24
G. Other Issues: Public Participation 24
III. CONCLUSIONS 25

BACKGROUND

[1] On November 30, 2000 the Director, Northern East Slopes Region, Environmental Service, Alberta Environment (the "Director") issued Approval 10323-02-00 (the "Approval") under the Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3 (the "Act") to TransAlta Utilities Corporation (the "Approval Holder" or "TransAlta") for the operation and reclamation of the Wabamun Thermal Electric Power Plant (the "Wabamun Power Plant"), near the Village of Wabamun, in the Province of Alberta.

[2] On December 28, 2000 and January 2, 3, 4, and 10, 2001 the Environmental Appeal Board (the "Board) received Notices of Appeal from the following parties (collectively the "Appellants"):

  1. Mr. K.F. Bailey on behalf of Ms. Gwen Bailey and the Summer Village of Point Alison;
  2. Mr. Steven J. Ferner on behalf of Enmax Energy Corporation ("Enmax");
  3. Mr. Nick Zon;
  4. Mr. Blair Carmichael;
  5. Mr. D.R. Thomas, Q.C. on behalf of Ms. Donna Thomas and the Summer Village of Kapasiwin;
  6. Mr. I. Samuel Kravinchuk on behalf of Mr. James Paron;
  7. His Worship Mayor William Purdy on behalf of the Village of Wabamun;
  8. Mr. David Doull;
  9. Mr. F. Locke Boros on behalf of the Lake Wabamun Enhancement and Protection Association ("LEWPA"); and
  10. His Worship Mayor C. Gordon Wilson, again, on behalf of the Summer Village of Point Alison.(2)

[3]  The Board acknowledged receipt of each of the Notices of Appeal and requested that the Director provide a copy of the records related to this matter. The Board also advised the Approval Holder of the appeals and provided the Approval Holder and the Director with copies of the Notices of Appeal.

[4] According to standard practice, the Board wrote to the Natural Resources Conservation Board (the "NRCB") and the Alberta Energy and Utilities Board (the "AEUB") asking whether this matter has been the subject of a hearing or review under their respective legislation. Replies were received from the NRCB advising that they did not hold a hearing or review under their legislation.

[5] With respect to the AEUB's jurisdiction, the Board was advised that TransAlta currently holds AEUB Approval No. HE 8109 with respect to the Wabamun Power Plant. The Board was provided with a copy of AEUB Decision Report 81-6 that formed the basis for that approval.(3)

[6] The Director advised in his letter of January 2, 2001 that it would prepare one set of records in respect of all the appeals and would provide the records at the expiry of the appeal period. The Board received the Director's records on February 8, 2001. Copies of the Director's records were provided to each of the Appellants on February 12, 2001.

[7] On January 19, 2001 the Approval Holder requested that the Board expedite the appeal and set a March date for a hearing to be held in the Village of Wabamun. The Board received objections from four Appellants in response to the request that the hearing be held in the Village of Wabamun.

[8] On January 25, 2001 the Board received a letter from Mr. L.A. Cusano of Donahue Ernst & Young advising that they now represent Enmax.

[9] On January 25, 2001 the Board wrote to the Appellants, the Approval Holder and the Director advising that it would proceed to an oral preliminary meeting. The Board advised that at the preliminary meeting it would consider the status of the appeal filed by Enmax and determine which of the issues included in the Notices of Appeal will be included in the hearing of the appeals. The Board advised that in determining which issues included in the Notices of Appeal were properly before the Board, it would consider the issue of "duplication of review." In this regard, the Board advised that it would consider whether the matters included in the Notices of Appeal were the subject of a public hearing or review under any Act administered by the AEUB. Further, the Board advised that it would also consider "issue estoppel," the legal principle that the same issue should not be decided twice.(4)

[10] The Board stated that issue estoppel may prevent it from rehearing issues that it already heard and decided in the previous appeals regarding the Wabamun Power Plant.(5) Specifically, in the previous Board decisions respecting the Wabamun Power Plant, the Board limited the issues to:

[10] On February 14, 2001 the Board received a letter from Mr. Brian O'Ferrall, Q.C. of Bennett Jones, advising that they now represent LWEPA for the purposes of "… the Board's preliminary hearing of the appeal of ENMAX Energy Corporation of Approval No. 10323-02-00."

[11] The Board advised all parties on February 16, 2001 that it would hold an oral preliminary meeting on March 1, 2001, at the Board's offices in Edmonton. The letter outlined the procedures for the meeting and requested written submissions by noon on Friday, February 23, 2001. On February 19, 2000 and February 20, 2000, respectively, Mr. Carmichael and Mr. Zon responded to the Board's letter advising that they had concerns about the expedited nature of the preliminary hearing.

[12] On February 20, 2001 Mr. Doull requested that the Board provide him with all records relating to Approvals 18528-00-00 and 18528-00-01 that were previously issued to TransAlta for the Wabamun Power Plant. The Board forwarded this request to the Director, asking that these records be provided directly to Mr. Doull and indicating that these records would not be included in the Board's file.

[13] In a letter of February 23, 2001 the Board wrote to the parties and acknowledged receipt of written submissions from Enmax, Mr. Paron, Mr. Doull, LWEPA, the Village of Wabamun, Mr. Zon, TransAlta, and the Director. The Board also received a submission from Ms. Thomas and the Summer Village of Kapasiwin. The Board did not receive submissions from Ms. Gwen Bailey, Mr. Carmichael, or the Summer Village of Point Allison.

II. PRELIMINARY MEETING

[14] As indicated in its letters of January 25, 2001 and February 16, 2001 the Board convened an oral preliminary meeting on March 1, 2001 to consider the status of the appeal by Enmax and determine which of the issues included in the Notice of Appeal were properly before the Board. Specifically, in its letter of February 16, 2001 the Board advised that:

"At the oral Preliminary Meeting the Board will:

  1. Consider the status of the ENMAX … appeal,
  2. Determine which of the issues included in the Notices of Appeal are properly before the Board, and
  3. Consider where appropriate the standing of all parties and how they are directly affected by the decision to issue the Approval to TranAlta…."

With respect to the issue of the Enmax appeal, the February 16, 2001 letter went on to ask the parties to

"… address the following issues:

  1. Does ENMAX have standing? What if a Statement of Concern was not filed?
  2. Are the issues contained within ENMAX's Notice of Appeal properly before the Board? Specifically, the Board would like ENMAX to address the question 'What jurisdiction does the Board have with regard to electrical power rates given the authority of the [AEUB]…?'"

Further, with respect to the other Notices of Appeal, the Board asked the parties to address

"… the following issues:

1. Issue Estoppel

The first issue the Board wishes the parties to address is issue estoppel. In this regard, at the oral Preliminary Meeting, the Board would like the parties to provide their submissions on the principle of issue estoppel, i.e. having regard for the previous TransAlta decision of the Board and the Minister in this matter and how does it or does it not affect the new Notices of Appeal. In other words, compare and contrast the issues raised in the current Notices of Appeal….

2. Standing (Directly Affected)

Section 84(1) of the Environmental Protection and Enhancement Act states that in order to appeal an Approval issued by the Director, a person must demonstrate that they are directly affected by the decision of the Director. In this regard, the Board requests that the parties provide their submissions on how they are directly affected." [Emphasis in the original.]

[15] All parties were present at the preliminary meeting with the exception of Mr. K.F. Bailey (representing Ms. Bailey) and Mr. D.R. Thomas, Q.C. (representing Ms. Thomas and the Summer Village of Kapasiwin). Mr. Ron Kruhlak, counsel for TransAlta, advised that Mr. Bailey and Mr. Thomas were close to reaching an agreement with TransAlta on behalf of their clients, and as a result, are of the view that it was not necessary to be at the preliminary meeting.

A. Enmax Appeal

1. No Statement of Concern

[16] In its Notice of Appeal, Enmax indicated that it had not filed a Statement of Concern. This raises the question of whether Enmax can file a valid Notice of Appeal without having filed a Statement of Concern. Section 84(1)(a) of the Act is the authority for filing a Notice of Appeal with respect to an Approval. This section provides:

"A notice of appeal may be submitted to the Board by the following persons in the following circumstances:

(a) where the Director

(i) issues an approval,…

a notice of appeal may be submitted

(iv) by the approval holder or by any person who previously submitted a statement of concern in accordance with section 70 and is directly affected by the Director's decision, in a case where notice of the application or proposed changes was provided under section 69(1) or (2), or…." [Emphasis added.]

[17] This section makes it clear that the filing of a Statement of Concern in accordance with section 70 of the Act is a prerequisite to filing a Notice of Appeal (unless you are an Approval Holder, which is addressed below). Section 70 provides:

"(1) Where notice is provided under section 69(1) or (2), any person who is directly affected by the application or the proposed amendment, addition, deletion or change, including the approval holder in a case referred to in section 69(2), may submit to the Director a written statement of concern setting out that person's concerns with respect to the application or the proposed amendment, addition, deletion or change.

(2) A statement of concern must be submitted within 30 days after the last providing of the notice or within any longer period specified by the Director in the notice."

[18] An important component of filing a valid Statement of Concern is that it must be filed within the time limit prescribed by section 70(2). In the case of this Approval, the Director extended the time limit to 45 days. The last publication of notice was on January 11, 2000. As a result, the last day for filing Statements of Concern was February 25, 2000.(6)  

[19] Enmax advised that it did not file a Statement of Concern because, at the time the Director was receiving Statements of Concern, it did not have an interest in this matter. Enmax argued that it acquired an interest in this matter by virtue of a Power Purchase Agreement (7) (a "PPA") that it entered into with TransAlta on August 24, 2000.

[20] Enmax argued that it should be able to file a Notice of Appeal without having filed a Statement of Concern because of the unique circumstances created by the PPA and that the circumstances that resulted in it not filing a Statement of Concern were beyond its control. As a result, Enmax urges the Board to exercise its discretion to permit Enmax's appeal to proceed in the absence of a Statement of Concern based, inter alia, on the O'Neill(8) case.

[21] In the O'Neill case, Mr. O'Neill stated that he had filed a Statement of Concern with the Director - both by mail and e-mail. No one, including the Director, could find a copy of either version of the Statement of Concern. In paragraph 14 of O'Neill the Board said:

"Statements of concern are a legislated part of the appeal process. Though it is seldom seen, circumstances could arise where it may be possible for the Board to process an appeal where a statement of concern was filed late. Or perhaps an appeal could be processed even when a statement of concern has not been filed - due to an extremely unusual case (e.g. a directly affected party being hospitalized) where a person's intent to file is otherwise established in advance. But those circumstances are highly fact-specific, exceptionally rare, and they do not apply to the present case." [Emphasis in the original.]

Mr. O'Neill's Notice of Appeal was dismissed because none of these extremely unique circumstances existed.

[22] Enmax urged the Board "… to replace the language of 'where a person's intent to file is otherwise established in advance' with the words, 'or circumstances where the party could not have had an intent because of circumstances similar to those now facing Enmax."(9)

[23] Even though the argument is compelling, and while the Board does have the discretion to permit a Notice of Appeal to be filed in the absence of a Statement of Concern, the Board is of the view that such circumstances do not exist in this case. As highlighted by Enmax's request to modify the language in the O'Neill test, that decision contemplates that the directly affected party who failed to file a Statement of Concern had an "… intent to file [a Statement of Concern that] otherwise established in advance." Enmax failed in this regard.

2. Extending the Time to File

[24] In the alternative, Enmax requests that the Board exercise its discretion under section 85.1 to extend the time line for filing the Statement of Concern. Section 85.1 provides:

"The Board may, before or after the expiry of the prescribed time, advance or extend the time prescribed in this Part of the regulation for the doing of anything where the Board is of the opinion that there are sufficient grounds for doing so."

[25] In support of this request, Enmax cites Bildson.(10)  In Bildson, Mr. Bildson was late in filing a Statement of Concern. The Director accepted the Statement of Concern despite it being filed late. When Mr. Bildson appealed, the Director argued that Mr. Bildson could not file a Notice of Appeal because he had not filed his Statement of Concern in time - that he had not filed his Statement of Concern in accordance with section 70(2). Nevertheless, the Board proceeded with Mr. Bildon's Notice of Appeal on the basis that it was validly filed.

[26] Bildson and Enmax are different. Mr. Bildson filed a Statement of Concern, albeit late. Mr. Bildson participated in the process. In the case of Enmax, they obtained their interest in the Wabamun Power Plant on August 24, 2000. While the time limit for filing a Statement of Concern ended on February 20, 2000, Enmax was provided with a draft copy of the Approval on October 20, 2000 and the Approval was not issued until November 30, 2000. As a result, Enmax had three months in which to contact the Director and at least: (1) express an intention to file a Statement of Concern, or (2) expressing its concerns through a letter filed with the Director. And at the very least, Enmax could have responded to the draft copy of the Approval by attempting to submit something in order to preserve its appeal rights. There is no evidence that Enmax took such steps. As a result, this is not the appropriate circumstance for the Board to exercise its discretion to extend the time limit for filing a Statement of Concern in accordance with section 85.1.

3. Enmax as Approval Holder

[27] In the further alternative, Enmax argues that it should not be required to file a Statement of Concern because it "… may be considered to be analogous to that of an approval holder."(11) Enmax points to the provision of section 84(1)(a), whereby an Approval Holder can file a Notice of Appeal without the prerequisite of having filed a Statement of Concern. Enmax argues that the PPA has resulted in a "… bifurcation of rights…" whereby "… ownership of the plant remains in the hands of TransAlta but the right to sell electrical power now resides in Enmax."(12) The argument is creative and somewhat persuasive.

[28] However, I posed this question to Mr. Cusano during oral arguments: "… [I]f there were any penalties or enforcement actions or any other such matters that were levied against the approval holder … [would you be willing to have them levied against Enmax]?"(13) The answer was an emphatic "no"; Enmax clarified that "Enmax [was] simply advancing that [ownership] analogy for the purposes of whether or not the Board would be inclined to give it standing, and nothing more. It could never be the approval holder under the legislation."(14)[Emphasis added.]

[29] Of course Enmax is not the Approval Holder. Yet, in the absence of intervenor status, Enmax is asking the Board to "read in" to section 84(1)(a) the ability of a party tied by economic interests to the Approval to file an appeal. Enmax is arguing that because of its power purchase arrangement - the PPA - with TransAlta, which may result in the costs of implementing the Approval being passed onto Enmax (which may be true), Enmax will suffer the burden of, and therefore must have the corresponding benefit of, the Approval Holder's right to appeal or so the argument goes.

[30] The Board rejects this argument. Enmax is not the Approval Holder and is not analogous to the Approval Holder. The PPA is quite clear:

"The effect of the PPAs is that the legal ownership of the generating units that are subject to PPAs remains the same. The owner [TransAlta] also still operates the generating units. However, the right to market and sell electrical power which compromises the 'Committed Capacity' of the generating units that are subject to PPAs passed to the PPA Buyer [Enmax]. The owner is required to provide 'Generation Services', which is defined to mean the making available of the Committed Capacity and the supply of Electrical and System Support Services available from the Committed Capacity by the Owner to the Buyer."(15)

[Emphasis added.]

[31] The PPA is a commercial arrangement between TransAlta and Enmax. A commercial arrangement between an Approval Holder and another party does not create appeal rights for the other party (though it may create strong arguments for subsequent intervenor status). In short, while the Approval may have a pecuniary effect on Enmax, this effect is no different than any other Approval Holder passing on the costs of implementing an Approval to its contractual neighbors or its customers.

4. Previous Consideration by the AEUB

[32] Section 87(5)(b)(i) provides that:

"The Board…

(b) shall dismiss a notice of appeal is in the Board's opinion

(i) the person submitting the notice of appeal received notice of or participated in or had the opportunity to participate in on or more hearings or reviews under the Natural Resources Conservation Act or any Act administered by the Energy Resources Conservation Board [now the AEUB] at which all of the matters included in the notice of appeal were adequately dealt with…"

[33] The Board is persuaded by Mr. O'Ferrall's explanation of the process by which the PPAs were developed before the AEUB. In his closing arguments(16) Mr. O'Ferrall explained, in some detail, the process whereby Enmax had an opportunity to participate in a hearing or review by the AEUB under the Electrical Utilities Act, S.A. 1995, c. E-5.5 (the "EUA") and its relevance to our Act.

[34] Mr. O'Ferrall explained how the EUA established an "Independent Assessment Team" which reviewed, among other facilities, the Wabamun Power Plant and developed a report reviewing the potential costs identified by TransAlta. The report included a proposed power purchase arrangement - the predecessor to the PPA. The AEUB then published notice advising that it had received this report and held a major hearing into the power deregulation process, that eventually lead to the auctioning of power production of, among others, the Wabamun Power Plant. As stated by Mr. O'Ferrall:

"… that is a notorious process, it was well known to Enmax. Enmax is a sophisticated electrical consumer for a number of years in this Province of Alberta, became a marketer as a result of privatization or deregulation or whatever you want to call it of our power industry, and knew full well what it was getting into."(17)

[35] Finally, as Mr. O'Ferrall stated, "Enmax's issues ought not to be heard by the Board because what the Board is being asked to decide is to be decided or has been decided by another regulatory scheme."(18)The Board agrees with Mr. O'Ferrall. Enmax has had an adequate opportunity to raise similar issues before the AEUB.

B. Issue Estoppel(19)and the Preliminary Motion

[36] At the beginning of the preliminary meeting, Mr. Carmichael, supported by Mr. Doull, made a motion asking the Board to recognize "… the fact that issue estoppel really does not apply here."(20) The basis for Mr. Carmichael's motion is that the matters "… have not been resolved as final….(21) In this context, Mr. Carmichael advised that there was an on-going lawsuit in the Court of Queen's Bench between TransAlta and some of the Appellants in relation to conditions at Lake Wabamun. Apparently in the lawsuit, the Government of Alberta and TransAlta made an application to dismiss the lawsuit on the basis that the issues in the lawsuit are more properly dealt with by the Board rather than the Court. Mr. Carmichael advised that Master Quinn and Justice Sanderman denied the application to dismiss the lawsuit, apparently because a final decision has not been made.(22)

[37] In response to Mr. Carmichael's motion, TransAlta responded that they do not concur with the characterization of the court decisions referred to by Mr. Carmichael.(23) Counsel also confirmed that the Court did not place any direct or indirect limitation on the Board. (24)

[38] Mr. Carmichael's motion prompted a great deal of discussion about the interrelationship between the common law doctrine of issue estoppel and the powers of the Board found at sections 87(2), (3) and (4) of the Act. These sections provide:

"(2) Prior to conducting a hearing of an appeal the Board may in accordance with the regulations determine which matters included in notices of appeal properly before it will be included in the hearing of the appeal, and in making that determination the Board may consider the following:

(a) whether the matter was the subject of a public hearing or review under the Natural Resources Conservation Board Act or under any Act administered by the Energy Resources Conservation Board and whether the person submitting the notice of appeal received notice of and participated in or had the opportunity to participate in the hearing or review;

(b) whether the Government has participated in a public review in respect of the matter under the Canadian Environmental Assessment Act (Canada);

(c) whether the Director has complied with section 65(4)(a);

(d) whether any new information will be presented to the Board that is relevant to the decision appealed from and was not available to the person who made the decision at the time the decision was made;

(e) any other criteria specified in the regulations.

(3) Prior to making a decision under subsection (2) the Board may, in accordance with the regulations, give to a person who has submitted a notice of appeal and to any other person the Board considers appropriate, an opportunity to make representations to the Board with respect to which matters should be included in the hearing of the appeal.

(4) Where the Board determines that a matter will not be included in the hearing of an appeal, no representations may be made on that matter at the hearing."

[39] Specifically, the Board asked Mr. Carmichael

"… how do you deal with the sections of the Act starting with Section 87 subsection (2), (3), and (4) and it basically tells the Board that before proceeding with the hearing the Board can have regard to previous hearings, previous facts, even previous hearings under different statues."(25)

[40] Mr. Carmichael responded

"… that you are free to make those decisions as a Board as to which issues you hear but that is not under the issue estoppel that you asked us as non-lawyers to speak to which I don't think is fair."(26)

[41] The interrelationship between issue estoppel and section 87 of the Act was also commented on by Mr. Sjolie on behalf of the Village of Wabamun. He stated:

"Our position is that issue estoppel is really not strictly, I don't think, applicable to this process. We have a new approval, we have a hearing de novo under the statute.

However, section 87 clearly gives the Board wide jurisdiction to define the issues and streamline the issues and focus the hearing on issues and we have no doubt that the Board can do that with respect to the issues that are being brought forward by the appellants today in these appeals having regard for previous hearings and previous evidence. And we have no doubt that the Board could limit issues to those raised by new parties, could talk about, you know, changes in circumstances from prior hearings. These are with the issues like water quality and weeds and air quality, lake level, winter ice, these issues that have been previously dealt with by the Board.

Obviously new conditions or changes in condition and the approval, issues that weren't dealt with in previous hearing, these are things that the Board could do to help streamline the process, but still deal with the issues that are real issues, real environmental issues that are brought by parties withstanding the requirements of natural justice that this Board is bound by, require the Board to hear from parties with status on relevant issues, and to do that in a fair way. And we see that the Board certainly has ability to accomplish both ends without violating any rules of law or any fairness principles to any of the parties."(27)

[42] The Board agrees with Mr. Sjolie. Section 87 of the Act gives the Board wide jurisdiction to streamline the issues before it and to focus the hearing - whether or not issue estoppel applies. 

C. Standing

[43] In the previous decision of the Board in TransAlta,(28) the Board held that Ms. Bailey, Mr. Zon, Mr. Carmichael, Ms. Thomas and the Summer Village of Kapasiwin, Mr. Paron, Mr. Doull, and the Summer Village of Point Allison were determined to be directly affected and granted standing. The Board finds that, since none of the factual circumstances have changed, these parties are still directly affected and, as a result, are granted standing with respect to the appeals currently before the Board.

[44] As indicated above, Enmax does not have a valid appeal before the Board. Therefore, this leaves the question of the standing of the Village of Wabamun, and LWEPA.

1. Village of Wabamun

[45] The Village of Wabamun is the municipality closest to the Wabamun Power Plant. The Village advised that:

"… the Village is a landowner around the lake and has public property that is affected by this approval, and again is a party that has responsibilities for the environment and well-being of its community and all of the people that reside within it."(29)

[46] Since the Village of Wabamun owns land (approximately five hectares of waterfront) on the lake, it is clearly affected as a riparian by the impact of the Wabamun Power Plant on Lake Wabamun. The Village of Wabamun has standing.

2.    LWEPA

[47] In the decision-making history of the Board, associations or groups have not normally been deemed directly affected. LWEPA countered this principle by pointing out that in the previous TransAlta(30)  decision, it was clear that "… if you owned a cottage on Lake Wabamun in proximity to the Wabamun gas plant or power plant or any other part of Wabamun you were going to be directly affected."(31)  

 [48] As stated, the Board has had some difficulties with groups meeting the directly affected test prescribed by section 84(1). The Board has examined the issue of directly affected in some detail in Kostuch:(32)

"Two ideas emerge from this analysis about standing. First, the possibility that any given interest will suffice to confer standing diminishes as the causal connection between an approval and the effect on that interest becomes more remote. This first issue is a question of fact, i.e. the extent of the causal connection between the approval and how much it affects a person's interest. This is an important point: the Act requires that individual appellants demonstrate a personal interest that is directly impacted by the approval granted. This would require a discernible effect, i.e., some interest other than the abstract interest of all Albertans in generalized goals of environmental protection. 'Directly' means the person claiming to be 'affected' must show causation of the harm to her particular interest by the approval challenged on appeal. As a general rule, there must be an unbroken connection between one and the other.

Second, a person will be more readily found to be 'directly affected' if the interest in question relates to one of the policies underlying the Act. This second issue raises a question of law, i.e., whether the person's interest is supported by the statute in question. The Act requires an appropriate balance between a broad range of interests, primarily environmental and economic." [Emphasis added.]

[49] Significantly, the Kostuch case goes on to say at page 15:

"The determination of whether a person is directly affected is a multi-step process. First, the person must demonstrate a personal interest in the action taken by the Director. Assuming the interest is specific and detailed, a related question to be asked is whether that interest is a personal (or private) interest, advanced by one individual or similar interests shared by the community at large. In those cases where it is the latter, the group will still have to prove that some of its members will have their own standing."(33) [Emphasis added.]

[50] There are two cases in which the issue of a group filing an appeal was addressed - Hazeldean(34) and Graham.(35) In the Hazeldean case, the Community League filed an appeal in relation to a plywood manufacturing plant located immediately next to their community. Two other appeals were also received in this case, the first on behalf of an individual and an environmental association, and the second from an individual. The plywood manufacturing plant objected to the appeals on the basis that none of the parties that had filed an appeal were directly affected.

[51] In Hazeldean, the Board went on to state at pages 4 and 5:

"The Board notes that the residents of the Community live immediately across the street and in the vicinity of the Zeidler plant. The Community distributed a survey to all of the residents of the Hazeldean area and asked them to respond to certain questions concerning the Zeidler plant and its emissions. The results of the survey were submitted to the Board with the Community's representations. Seventy-five of 105 people who completed this survey indicated that they were very concerned about air quality in the neighbourhood. Over 50% of the residents who responded found the odour to be an unpleasant annoyance at least one-half of the time. The Community stated that its close proximity to the Zeidler plant gave rise to these odour complaints because of the prevailing westerly or south westerly winds which cause the emissions to blanket the community. It also stated that there was a great concern regarding the possibility of other compounds within the emissions that may raise health concerns. Their survey found that 55 of 105 completed responses indicated that the residents were concerned with health effects of the Zeidler emissions. Their concern is that the Approval will directly result in increased emissions to the atmosphere, where they will remain at a sufficiently low elevation that the plume distribution will undoubtedly affect the neighbours of the facility who have no choice but to breathe the air outside. Unlike the quality of water, which leaves the ultimate choice (to drink or not) to the user, there is no real option to breathing the ambient air. If the people of the Hazeldean district are not directly affected, no one will ever be.

Herein lies the crux of the directly affected dilemma: how does an appellant discharge the onus of proving that he or she is directly affected when the nature of air emissions is such that all residents within the emission area may be directly affected to the same degree? One might be led to the conclusion that no person would have standing to appeal because of his inability to differentiate the affect upon him as opposed to his neighbour. This is unreasonable and it is not in keeping with the intent of the Act to involve the public in the making of environmental decisions which may affect them."

[52] The Graham case involved appeals filed by three organizations. Mr. Graham filed his appeal on behalf of the Alberta Trappers Association. The other two organizations that appealed were the Lesser Slave Lake Indian Regional Council and the Toxics Watch Society (which latter withdrew its appeal). The appeals related to an approval granted to the hazardous waste treatment facility located at Swan Hills. The Board in Graham ruled that only one individual represented and specifically identified by one of the organizations was directly affected. This individual, Mr. Charlie Chalifoux, was a trapper that regularly trapped adjacent to the facility. The appeal proceeded accordingly.

[53] The cornerstone of all of the cases is the factual impact of the proposed project on individuals. It is important to understand that it is acceptable for an organization to file an appeal, but in order to demonstrate the personal impact required by section 84 of the Act, individual members of the organization should also file - either jointly with the organization or separately. There will be cases, such as Hazeldean, where an organization can proceed with an appeal on its own. However, in these cases, the Board will need to be clearly convinced that the majority of the individual members of the organization are individually and personally impacted by the project.

[54] In the present appeal, LWEPA went on to establish this important link:

"Our members are owners. Our occupants make use of the lake. We have been party to a process with TransAlta and the Director with respect to this approval and despite the brilliant argument that I advanced on behalf of a company called Maxwell Petroleum who are drilling a well south of Seba Beach subdivision … the Energy Resources Conservation Board came to the conclusion despite the arguments that I advanced, and they have arguably a tougher test, directly adverse impact on rights, they were found to be a local intervenor…."(36)

[55] The Board requested that LWEPA provide a copy of its membership list. Upon reviewing the list, many members of LWEPA are probably riparian owners and at least two members are Appellants with established standing before the Board. (The Board has before it appeals filed by Mr. Doull and Mr. Paron. Mr. Doull and Mr. Paron are members of LWEPA.) Since appeals were separately and validly filed by two of its members, the Board is of the view that there is sufficient evidence to determine that LWEPA, whose members surround and use the lake, has status to participate in these appeals.

[56] The Board is also persuaded by another argument advanced by Mr. O'Ferrall. Mr. O'Ferrall described for the Board that LWEPA is "… a whole bunch of people that have taken part in that consultative process and there are some decisions made as a result of that."(37)What Mr. O'Ferrall described in essence was that LWEPA was created for the express purpose of engaging in the regulatory approval process, now appealed to the Board. LWEPA is the means by which the many of the local residents have in fact chosen to carry out their obligations to participate in the TransAlta Approval process.(38) As a result, even if the Board did not have the Notices of Appeal from Mr. Doull and Mr. Paron before it, the Board believes that LWEPA is a proper party to these proceedings.

D. Previous Issues

[57] Many of the Appellants advanced the argument that the Board should revisit the issues it decided in the previous decisions on TransAlta on the basis that the decision of the Board had not been "implemented." This argument was put forward, in response to the questions the Board posed about issue estoppel, stating that issue estoppel could not apply because the decision was not "final." What it really means is that some of the Appellants were not satisfied with the results.

[58] The Appellants do not question that the issues identified in the previous decision were decided. They were merely unhappy with the results of the decision. The Board is of the view that this reasoning does not form the foundation for revisiting the issues that formed the basis of its previous decision.

[59] Specifically, in the previous proceeding dealing with TransAlta, the Board identified and limited the following issues before the Board:

[60] These matters have already been adequately dealt with in its previous decision. The Board further believes that there are no significant changes in circumstances that warrants the Board to consider these matters again, with the exception of the issues discussed below. Accordingly, the Board will not revisit previous hearings or issues except as stated below.

[61] The Board is mindful that it has the ability to rehear or reconsider matters, found in section 92.1(40) of the Act. However, the Board does not have an application for reconsideration before it and, as a result, section 92.1 has not been engaged.

[62] In deciding which matters will be heard, the Board notes particularly Appendix 3 of the Written Submission by TransAlta. This Appendix reviews the issues that were previously raised before the Board and discusses how each of these issues has been dealt with.(41) Based on its consideration of this Appendix and the submissions of the other parties, the Board has identified only two issues that that it is prepared to revisit in the appeals that are currently before the Board.

[63] The first of these issues is public safety relating to winter ice. In the preliminary meeting the Chairman asked Mr. Doull: "What I would like to know now has there been any accidents that you are aware of since the time the approval was changed?" Mr. Doull responded:

"Another fellow went though the ice, but he was coming along, you know, perhaps Fred Lindsay could comment or some of the other TransAlta people could comment. But other people did go through the ice while ski-dooing, I think it was around the Wabamun Yacht Club."(42)

The Board is of the view even one accident or injury is a significant concern and must be addressed. Preventing injury or death is an overriding public policy consideration that the Board will revisit regardless of issue estoppel or any of the principles found in section 87 of the Act. Public safety will be addressed because it does not appear that the safety impacts on human use of the lake have been resolved; it is possible, in other words, that serious injury or death may yet occur. This must be prevented and the hearing will deal with it.

[64] The second issue that the Board heard, and viewed as significant new information, was the issue of alternate methods for controlling weeds. Mr. Carmichael advised chemical methods were being used to control weeds in the day use areas of the provincial park.(43) The Board is prepared to receive submissions on the issue of harvesting weeds, but solely on the matter of alternate technologies - chemical, physical, or others such technologies - to enhance TransAlta's current weed control program. The Board will not revisit other issues relating to weeds. In other words, the Board is not prepared to revisit the issue of lake levels or anything else as it relates to weeds.

[65] The Board has heard nothing that would demonstrate to it that there has been some significant change in circumstances with respect to the issues of water quality, air quality, or lake levels.

E. New Issues

[66] At pages 10 and 11 of its written submission, TransAlta analyzed the issues raised in the Notices of Appeal filed by the Appellants. During the preliminary meeting the Board asked to TransAlta to identify those issues in this analysis that had not been previously decided by the Board. TransAlta identified four issues that may be new in some way. Specifically TransAlta identified:

  1. sedimentation deposits at Point Allison,
  2. definitions of decommissioning and cooling water in the Approval,
  3. watershed management plan, and
  4. emergent weeds.

The issue of weeds is dealt with above and will not be repeated here.

[67] The Board accepts TransAlta's analysis with respect to the issues of sediment deposition at Point Allison, the definitions of decommissioning and cooling water in the Approval, and the watershed management plan. As a result, these issues are properly the subject of the hearing.

[68] One additional issue was identified that the Board is of the view should be considered - timing of implementation of certain terms of the Approval. In Mr. Paron's submission to the Board, section 4.3.27 (c) of the Approval, was considered. This section of the Approval provides:

"The approval holder shall make all necessary applications such that:…

(c) by no later than December 31, 2006, the approval holder shall have pumped sufficient water into the lake to offset the historic debt (51.1 million cubic meters as of December 31, 1999) of TransAlta Utilities Corporation operations on lake level and on going impacts from all TransAlta Utilities Corporation operation, unless the lake level surpasses the elevation of 724.55 m (outlet control weir);…."

[69] At the preliminary meeting, Mr. Paron expressed concern about the manner in which section 4.3.27 (c) is drafted. He stated:

"Now let's go back to 4.3.27(c) and deal with the potential of the ludicrous scenario that could occur in that TransAlta does not have to pump one cubic meter of water until December 31, 2006 without being in breach. It is ludicrous, but that is the interpretation that could be put upon it. … I don't think that we should wait six years or five years to find out if they are pumping any water. I think a simple recommendation on that particular issue should be some sort of yearly performance parameters. And then we will get into what happens if you don't pump according to. There will be time restraints."(44)

[70] The Board concurs that dealing with the issue of timing of implementation of the various conditions in the approval is important and should be heard. As a result, the Board will also accept submissions regarding sections 4.1.2 and 4.3.27 of the Approval, regarding timing and duration only, but including the length (the term) of the Approval.(45)

F. Issues the Board Will Not Consider

[71] The Board wishes to make it clear that, in accordance with section 87(4) of the Act, it will not accept submissions on any issues not identified above.

G. Other Issues: Public Participation

[72] The Board notes that a number of the Appellants expressed concern with manner in which the public participation program was conducted by TransAlta. The Director discussed the public participation mechanism at some length.(46)  He argued that there has to be a degree of finality with respect to a public participation program and that there should not be a punishment for an imperfect public participation mechanism. The Board agrees.

[73] A public participation program is not a subscription for group decision-making on the basis of individual veto. A public participation program will rarely completely satisfy all of the participants and it will never be perfect. The public interest is variegated and hard to define. As a result, unless it can be clearly demonstrated that there was a major flaw in the public participation process or that there was bad faith in the process, the Board will not revisit the public participation program. It is the Board's view that there is no such flaw in the public participation program here because of, among other things, the creation and functioning of LWEPA. This will not be the focus of the hearing.

III. Conclusions

[74] The Notice of Appeal filed by Enmax is dismissed. Whether Enmax wishes to file later for intervenor status is a different question.

[75] With the exception of Enmax, the Board finds that the remaining Appellants are directly affected by the Wabamun Power Plant and, as a result, have standing with respect to these appeals.

[76] The Board is prepared to revisit the issue of public safety, solely as it relates to TransAlta's operations and the impact on winter ice.

[77] The Board is prepared to revisit the issue of harvesting weeds, but solely on the matter of alternate technologies - chemical, physical, or others such technologies - to enhance TransAlta's current weed control program.

[78] The Board will consider the issues of sediment deposition at Point Allison, the definitions of decommissioning and cooling water in the Approval, and the watershed management plan.

[79] The Board will also accept submissions regarding sections 4.1.2 and 4.3.27 of the Approval, regarding timing and duration only, but including the length (the term) of the Approval.

[80] In accordance with section 87(4) no other matters shall be considered by the Board in the hearing of the appeals.

Dated on March 13, 2001, at Edmonton, Alberta.

Dr. William A. Tilleman, Chair


FOOTNOTES

1. Two separate appeals were filed on behalf of the Summer Village of Point Alison. The first was filed by Mr. K.F. Bailey (included in the Notice of Appeal of Ms. Gwen Bailey) and the second filed by His Worship Mayor C. Gordon Wilson. In a letter dated February 15, 2001 Point Alison confirmed that His Worship Mayor C. Gordon Wilson would be representing the Summer Village of Point Alison.

2. Section 2 of the AEUB Decision Report 81-6 identifies the issues before the AEUB as:

"1. The effect of thermal discharge on weed growth;

2. The alternative independent cooling facilities;

3. The impact of alternative cooling facilities and comparison with the impact of existing facilities; and

4. The weed harvesting program."

This information was subsequently confirmed by the AEUB in a letter dated March 12, 2001. Further, with respect to the AEUB's jurisdiction, the Board was advised that on April 27, 1999 Mr. Zon wrote to the AEUB and made a "… formal request to conduct a review hearing." This request for a review was presumably made pursuant to section 42 of the Energy Resources Conservation Board Act, R.S.A. 1980, c. E-11. On November 2, 1999 the AEUB wrote to Mr. Zon and advised that his application to review was denied.

3.  A copy of the Board's recent decision in Villeneuve Sand and Gravel Alberta Ltd. (EAB Appeal No. 00-015D) that deals with issue estoppel was included with this letter.

4.  In the previous appeals regarding the Wabamun Power Plant, the Board made Decision EAB Appeal No. 97-005 - 97-016, dated September 26, 1997, following an oral preliminary meeting. The Board also issued Report and Recommendations EAB Appeal No. 97-005 - 97-015, dated December 9, 1997, following an oral hearing. Subsequent to that Report and Recommendations, the Minister issued his final decision in this matter, agreeing with the Board's recommendations, by way of a Ministerial Order dated December 18, 1997.

5. Written Submission of TransAlta at paragraph 13.

6 In simple terms, a Power Purchase Arrangement provides that the owner (here TransAlta) of an electrical generating facility agrees to allow the buyer (here Enmax) to sell the electricity produced by the facility.

7. O'Neill v. Regional Director, Parkland Region, Alberta Environmental Protection re: Town of Olds, EAB No. 98-250-D.

8. Submission by Mr. L.A. Cusano on behalf of Enmax, Preliminary Meeting Transcript, page 34.

9 Bildson v. Acting Director, North Eastern Slopes Region, Alberta Environmental Protection re: Smoky River Coal Ltd., EAB Appeal No. 98-230-D.

10. Written Submission of Enmax, paragraph 16.

11.  Submission by Mr. L.A. Cusano on behalf of Enmax, Preliminary Meeting Transcript, page 31.

12.  Questions by the Board to Mr. L.A. Cusano for Enmax, Preliminary Meeting Transcript, page 40.

13.  Response by Mr. L.A. Cusano on behalf of Enmax to the Board, Preliminary Meeting Transcript, page 40.

14.  Written Submission of Enmax, paragraph 9.

15.  Closing Submission by Mr. Brian O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, pages 171 to180.

16.  Closing Submission by Mr. Brian O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, page 175.

17.  Closing Submission by Mr. Brian O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, page 171.

18. As stated by the Board in Villeneuve Sand and Gravel Alberta Ltd. v. Director, Northeast Boreal Region re: Inland Aggregates Limited, EAB Appeal No. 00-015D at paragraph [44]:

"Issues estoppel is intended to protect the public interest by bringing about the end of the dispute and providing finality and conclusiveness to legal proceedings. In simple terms, it means that the same issue should not be decided twice. Often the concept is expressed in criminal law as double jeopardy. It is a fundamental tenant of our legal system."

In Wavel Ventures Corp. v. Constantini (1996) 46 Alta.L.R. (3d) 292 at page 306, cited at paragraph [26] of TransAlta's written submission, the Alberta Court of Appeal stated:

"The doctrine of res judicata [issue estoppel is one form of res judicata] is founded on public policy so that there may be an end of litigation, and also to prevent the hardship to the individual of being twice vexed by the same cause. The rule which I deduce from the authorities is that a judgement between the same parties is final and conclusive not only as to the matters dealt with, but also as to questions which the parties had the opportunity of raising. The authorities also showed that principles of issue estoppel are applicable to the decision of administrative tribunals, as stated in Rasanen v. Rosemount Instruments (1994) 112 D.L.R. (4th) 683 at 687 (Ont.C.A.)"

19 Opening Remarks by Mr. Carmichael, Preliminary Meeting Transcript, page 10.

20. Opening Remarks by Mr. Carmichael, Preliminary Meeting Transcript, page 11.

21. Opening Remarks by Mr. Carmichael, Preliminary Meeting Transcript, page 11. Beyond the information presented in the preliminary meeting, the Board has no other information regarding the lawsuit.

22. Preliminary Matters by Mr. Kruhlak on behalf of TransAlta, Preliminary Meeting Transcript, page 26.

23. Opening Remarks and Preliminary Matters by the Board, Preliminary Meeting Transcript, pages 11, 26 and 27.

24. Preliminary Matters by Board to Mr. Carmichael, Preliminary Meeting Transcript, page 12.

25. Preliminary Matters by Mr. Carmichael, Preliminary Meeting Transcript, page 13.

26. Submission by Mr. Sjolie on behalf of the Village of Wabamun, Preliminary Meeting Transcript, page 118.

27. Zon et al. v. Director, Air and Water Approvals, Alberta Environmental Protection, re: TransAlta Utilities Corporation, EAB Appeal No. 97-005 - 97-016, September 26, 1997.

28. Submission by Mr. Sjolie on behalf of the Village of Wabamun, Preliminary Meeting Transcript, page 120.

29. Zon et al. v. Director, Air and Water Approvals, Alberta Environmental Protection, re: TransAlta Utilities Corporation, EAB Appeal No. 97-005 - 97-016, September 26, 1997.

30. Submission by Mr. O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, page 72.

31. Kostuch v. Director, Air and Water Approvals Division, Alberta Environmental Protection (1995), 17 C.E.L.R. (N.S.) 246 at page 257.

32. These passages are cited with approval in Kostuch v. Director, Air and Water Approvals Division, Environmental Protection (1997), 21 C.E.L.R. (N.S.) 257 at paragraph 25.

33. Hazeldean Community League v. Director of Air and Water Approvals Division, Alberta Environmental Protection, E.A.B. No. 95-002.

34. Graham v. Director, Chemicals Assessment and Management, Alberta Environmental Protection, (1996) 20 C.E.L.R. (N.S.) 287. This case was judicially reviewed and then taken to the Court of Appeal. See Graham v. Director, Chemicals Assessment and Management, Alberta Environmental Protection (1997), 22 C.E.L.R. (N.S.) 141 (Alta.Q.B.) and (1997) 23 C.E.L.R. (N.S.) 165 (Alta.C.A.).

35. Submissions of Mr. O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, page 72.

36. Closing Comments of Mr. O'Ferrall on behalf of LWEPA, Preliminary Meeting Transcript, page 176.

37. Section 2(f) of the Act provides:

"The purpose of this Act is to support and promote the protection, enhancement and wise use of the environment while recognizing …(f) the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions…."

38  Zon et al. v. Director, Air and Water Approvals, Alberta Environmental Protection, re: TransAlta Utilities Corporation, EAB Appeal No. 97-005 - 97-016, September 26, 1997.

39 Section 92.1 of the Act provides:

"Subject to the principles of natural justice, the Board may reconsider, vary or revoke any decision, order, direction, report, recommendation or ruling made by it."

40.  Appendix 3 to the TransAlta written submission identified that the Board made recommendations with respect to the following matters:

  1. open water/ice safety;
  2. study of options and measures to be taken to reduce or eliminate the impact of the thermal input;
  3. cooling water discharge temperature monitoring;
  4. delta t benchmark;
  5. monitoring for elements;
  6. chronic toxicity monitoring;
  7. expansion of weed harvesting;
  8. location of air emission measurement devices; and
  9. oil and grease limits.

The Appendix then reviewed, in some detail, how these recommendations were implemented.

41.  Closing Comments by Mr. Doull, Preliminary Meeting Transcript, page 192.

42.  Submission by Mr. Carmichael, Preliminary Meeting Transcript, pages 106 to 107.

43.  Submission by Mr. Kravinchuk on behalf of Mr. Paron, Preliminary Meeting Transcript, page 109.

44.  Section 4.1.2 of the Approval provides:

"By December 31, 2005, the approval holder shall submit a plan, to the Director, that either:

(a) proposes modifications and amendments to this approval that will permit the plan to meet all applicable environmental standards and guidelines required for a new coal-fired electric generating plant by April 1, 2010;

(b) details the decommissioning of the plant to commence no later than April 1, 2010, in accordance with section 5.1.1."

Section 4.3.27 of the Approval provides:

"The approval holder shall make all necessary applications such that:  

(a) by no later than September 30, 2002, the approval holder shall increase the excess capacity of the Wabamun Lake Water Treatment Plant;

(b) the approval holder shall submit water quality monitoring results and report on the volume of water returned to Lake Wabamun from the Wabamun Lake Water Treatment Plant on a monthly basis;

(c) by no later than December 31, 2006, the approval holder shall have pumped sufficient water into the lake to offset the historical debt (51.1 mullion cubic meters as of December 31, 1999) of TransAlta Utilities Corporation operations on lake level and ongoing impacts from all TransAlta Utilities Corporation operations, unless the lake level surpasses the elevation of 724.55 m (outlet control weir);

(d) after December 31, 2006, the approval holder shall operate the Wabamun Lake Water Treatment Plant at sufficient capacity to offset ongoing impacts to the lake level from all TransAlta Utilities Corporation operations, which is forecasted to be 9 million cubic meters annually, or as otherwise authorized in writing by the Director based on the annual report submitted under the Water Act licence12086, unless the lake level surpasses the elevation of the outlet control weir."

45.  Closing Comments by Mr. McDonald on behalf of the Director, Preliminary Meeting Transcript, pages 211 to 213. The Board endorses Mr. McDonald's comments. Mr. McDonald stated:

"… The focus of the legislation, the focus of the approval, the focus of this Board, is to build a better approval just to get information before it so that something better can happen. Not just simply so that things can be heard so that there can be a hearing. But that something positive is going to happen.

In this particular approval the Director took a different approach. He undertook an unprecedented program, public consultation. He listened to people to an extent that has not been dealt with by an approval in this province before.

The Director received a great deal of input; some of it positive, some of it negative. But as a result of the input that he received there were modifications, perhaps philosophical changes occurred during the consideration and review of the application and his decision, drafting of an approval.

I believe that the success of this particular program can be shown, and with all due respect to my friend Mr. O'Ferrall, I am sort of blindsiding him and his client on this, but by the role of the Lake Wabamun Environmental Protection Association, their participation here is a credit to its members and to the Director as to their role that occurred during the preparation of the approval.

The Director in his drafting and presentation of the approval heard from most, if not all, of the appellants. He heard from them either simply through the Statement of Concern they filed, but for most of the appellants he heard from them directly. And that I think changes in the approval arose as a result of comments that were received from most, if not all, of the appellants who took part in the process.

And as a result I believe that the best approval that could have been drafted was drafted. If the Board believes that there is information that would allow for modification or for changes to be taking place that couldn't deal with an approval that is better, well that is what I am suggesting Section 87 allows you to do, and that is what I would invite you to do."

 

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