Appeal No. 94-012


December 8, 1994


IN THE MATTER OF Sections 84, 85, and 87 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 J. Darryl Carter on behalf of his clients on September 20, 1994 with respect to Approval No. 94-IND-153 issued on September 12, 1994 by Jay Nagendran, Acting Director of Air and Water Approvals, Alberta Environmental Protection to Conwest Exploration Company Limited relating to the Sexsmith sour gas plant.

Cite as: Carter Group v. Director of Air and Water Approvals, Alberta Environmental Protection

BEFORE:
William A. Tilleman, Chair
Joan C. Copp
Max A. McCann

REPRESENTATIONS:
Sexsmith area landowners represented by J. Darryl Carter

Conwest Exploration Company Limited represented by Peter J. McIntyre

Director of Air and Water Approvals represented by William McDonald

Energy Resources Conservation Board represented by Michael J. Bruni

BACKGROUND AND PROCEDURAL HISTORY

On September 20, 1994, a notice of objection was filed on behalf of a group of landowners, regarding the decision of the Director of Air and Water Approvals, Alberta Environmental Protection (the Director) to issue Approval No. 94-IND-153 (the Approval). The Approval was issued on September 12, 1994 to Conwest Exploration Company Limited (Conwest) for the Sexsmith sour gas plant for the processing of natural gas in response to Application No. RS 0270. Mr. Carter filed the notice of objection on behalf of a group of landowners (Carter Group) in the Sexsmith area who had submitted a statement of concern to the Director on May 16, 1994.

The Carter Group was notified on September 13, 1994 by Mr. Dennis Eriksen, Manager of the Regulatory Approvals Centre, Alberta Environmental Protection (the Department) that the Approval was issued, and this letter of notification referred to the Carter Group's previously submitted statement of concern to the Director.

The notice of objection filed by the Carter Group focussed on the environmental impact assessment that was prepared for the Conwest project and the alleged failure to take environmental sensitivity into account when selecting the site for the gas processing plant. The Carter Group objected to the fact that the approval was issued by the Director of the Air and Water Approvals Division despite their concerns with the site location and the impact on wildlife habitat, the flora and the fauna. Considerable attention was paid to the Carter Group's concern over the alleged procedural confusion with the officials' roles and the organizational structure of the Department. Documents filed by the Carter Group address the hearing that was conducted by the Energy Resources Conservation Board (the ERCB) which resulted in ERCB Decision D 94-6. The contention was made that the ERCB's environmental review was "just window dressing" and that the source of supply of much of the raw gas should have been considered. Finally, rather than specifically enumerate their concerns to the Board when requested to do so, the Carter Group stated: "We hereby submit all of the concerns set out in our letter of May 16, 1994 to the Director of Standards and Approvals as objections to be heard by the Environmental Appeal Board."

The Board advised the Director and Conwest's legal counsel, Mr. Peter J. McIntyre, that the Approval had been appealed. The Board asked the Director to provide copies of the application and the Approval. On September 26, 1994, the Board wrote to the ERCB to confirm that a hearing was held and to request a copy of the decision that was issued following that hearing. On October 6, 1994, the Board also requested a copy of the transcript and the exhibits from the ERCB, and these documents were provided shortly thereafter.

The ERCB hearing involved several applications submitted by Conwest to construct a new sour gas plant, and related pipelines in the Grande Prairie area. The Conwest applications were considered by the ERCB at a public hearing in Grande Prairie, Alberta on 21, 22, 25, and 26 April 1994 before ERCB Members F.J. Mink, P. Eng. and N.G. Berndtsson, P.Eng., and Acting Board Member H.O. Lillo, P. Eng. Mr. Carter appeared before the ERCB and represented the same local residents(1) which he represents on appeal to our Board. Also in attendance at the ERCB hearing were representatives of the Department that eventually issued the approval that gave rise to this appeal.

THE PRELIMINARY MEETING

On October 14, 1994, the Board decided to hold a preliminary meeting, and scheduled it for November 2 and 3, 1994 at Grande Prairie, Alberta. The purpose of the preliminary meeting was to deal with the jurisdiction of the Board to hear the issues raised by the Carter Group and whether or not the Board should proceed with consideration of this appeal. At the preliminary meeting, the parties were asked to make representations on the following matters:

1. Does the notice of objection, which accompanied Mr. Carter's letter dated September 20, 1994, constitute a valid notice of objection under the Environmental Protection and Enhancement Act and the Environmental Appeal Board Regulation?

2. Were any or all of the matters raised by the landowners in this appeal the subject of a public hearing or review under an Act administered by the Energy Resources Conservation Board, and did any or all of those appellants receive notice of and participate in or have the opportunity to participate in a hearing or review by the Energy Resources Conservation Board?

3. In the event that the Board determines that it has jurisdiction to proceed in this matter, are the landowners directly affected as contemplated by the Act?

Each party(2) made its presentation(3) and then, the Board members asked questions of the presenter. Each party then had an opportunity to reply and make closing comments in the same order. In calling the preliminary meeting, the Board made no determination regarding the validity of the Carter Group's notice of objection and the issue of whether or not any or all of the Carter Group were directly affected by the Director's decision.

ISSUES

The primary issue before this Board is whether or not it should proceed with the Carter Group's appeal, when his group has already participated at the Conwest ERCB hearing. The section of our Enviromental Protection and Enhancement Act that sets the procedural guidelines for this Board regarding appellants who were involved in earlier hearings is section 87(5)(b)(i). It reads:

"The Board shall dismiss a notice of objection if in the Board's opinion the person submitting the notice of objection received notice of or participated in or had the opportunity to participate in one or more hearings or reviews under the Natural Resources Conservation Board Act or any Act administered by the Energy Resources Conservation Board at which all of the matters included in the notice of objection were considered."

The Legislative Assembly, in passing this section, was obviously concerned with avoiding duplication in the hearing process.

ERCB DECISION

The ERCB addressed the following issues in its hearing:

According to the ERCB, the application by Conwest was technically acceptable. The ERCB noted that none of the interveners questioned the need for the plant nor were there direct concerns raised regarding the proposed Conwest pipelines.(5)

Regarding the public participation process and Mr. Carter's group, the ERCB said:

"The Carter Group indicated that it was better off not getting directly involved in the public consultation process. In its view, Conwest's public consultation was nothing more than an attempt to get people on side with Conwest and was more of a public relations exercise than a public consultation exercise. The Carter group also indicated that, although it did not participate directly in the Advisory Group, it could and did voice its concerns to members of the Advisory Group.

The Carter Group was suspicious about the motives and tactics of Conwest and the role of the Advisory Group. It noted that persons participating in the Advisory Group, by the act of participating, appeared to some to be endorsing the Conwest project."(6)

The ERCB went on to say:

"With respect to the Carter Group, the Board accepts the position that it was the Carter Group's prerogative not to directly participate in the Advisory Group process . . . The Board believes that Conwest met its requirements with regard to public consultation. It also notes the significant value that the Advisory Group added to the project through the changes that Conwest made to the project as a result of the Advisory Group's input. The Board believes that overall, the Conwest process achieved the broad objectives to apprise the parties affected by its proposal and to respond to their concerns."(7)

Regarding environmental impacts of Conwest's sour gas plant, the ERCB noted the concerns of the Carter Group, which were:

"[that the Carter Group] viewed the whole EIA as "kind of quickie exercise" that had been rushed through and was deficient in certain aspects. The main deficiency from its point of view was that the weighting applied to the various environmental factors was not clearly set out. The Carter Group contended that, because the environmental consultants had worked with Conwest on the EIA, Conwest had influenced the content of the EIA to some degree, and therefore the EIA was not a totally independent report. In its view, the environmental consultants should have been allowed to do their work and prepare their reports independently of any input from Conwest."(8)

However, the ERCB did not agree with the Carter Group that the site selection process was flawed.(9) Nor did it agree with the Carter Group's interpretation of the EIA (environmental impact assessment). According to the ERCB:

"The Board found the Conwest environmental assessment to be detailed and thorough. The evidence shows the proposed plant would operate well within provincial environmental standards and Conwest's commitments should mitigate or minimize any adverse impacts. Given the evidence, the Board does not accept the contention of the interveners that the site proposed for the plant is unsuitable. Because of Site 8's proximity to the County Landfill site and Highway 724, and given the fact that the current site is leased for grazing, the Board believes that Site 8 would have a minimum amount of intrusion on the Saddle Hills and insufficient impact to change the character of the Saddle Hills. While some amount of wildlife impact is expected, the Board does not believe it is serious.

The Board notes that the new plant will result in a net reduction in sulphur emissions due to the conservation of sour solution gas and that this will result in an improvement in air quality especially in the vicinity of existing batteries. Given the level of emissions, the buffering capacity of the soils in the area, and the high pH and buffering capacity of the surface waters, the Board is satisfied there will not be a significant impact on the soils due to acid deposition resulting from the emissions at Conwest's proposed plant."

"The Board believes that Conwest's proposed measures for protecting the groundwater, which includes a groundwater monitoring program and leachate detection system, represent good engineering practice and will help to prevent a spill or accidental discharge from occurring and allow for early detection should a leak occur. The Board concurs with Conwest that the potential for major groundwater contamination from this facility is very low.

The Board notes that Conwest's proposed site is located just into a Wildlife Key Area on the edge of the Saddle Hills, adjacent to Highway 724 and in the vicinity of the Country Landfill site. Recognizing the current access, the proposed development would not provide any additional vehicular access to the Saddle Hills area and, therefore, not create any additional impact.

The Board notes that the main impact on vegetation is the new disturbance of some 8 ha for the plant site and approximately 10 net ha of forested land for wellsite and pipeline development. Considering the emissions modelling and soils testing results and given that there would not be an increase in access to forested area, the Board does not believe there will be any significant impacts on vegetation or wildlife from plant emissions. It also believes that any environmental impact from accidental releases can be mitigated. The Board concludes the impact of the Conwest plant on vegetation would be minimal."(10)

The ERCB approved Conwest's application to construct the plant. In doing so, the ERCB concluded by saying:

"The Board has carefully considered all of the evidence and is satisfied that the proposed sour gas plant and related pipelines are in the public interest and would meet or exceed all existing regulations and requirements that are established to ensure public health, safety, and the protection of the natural environment. In addition, the Board notes Conwest's commitment to continue with ongoing public consultation with affected parties both during the plant construction phase and thereafter during the operational phase. The Board accepts Conwest's undertaking to maintain an extensive program of monitoring with respect to air quality, soils, groundwater, vegetation and wildlife; as well as to be involved with others in a regional airshed monitoring program. Therefore, the Board is prepared to issue an approval for the applied-for sour gas plant and, subject to the approval of the Minister of Environmental Protection, . . ."(11) (emphasis added).

DECISION

This Board has carefully reviewed the ERCB's Decision D 94-6 regarding Conwest Exploration Company Limited - Applications No. 931148 and 940446 to 940450. This Board notes the considerable attention that was devoted in the ERCB Decision to the site selection process and the suitability of the site that Conwest selected. This Board finds as a fact that the Carter Group did participate in the ERCB hearing of Conwest's proposed sour gas plant. This group had several additional opportunities to participate in various public consultation processes that preceded the ERCB hearing. This Board finds that none of the matters which the Carter Group raised in this appeal is new. The Board further finds that even if there were new environmental matters (such as the attack on the Department's EIA scrutiny) they failed to raise them when they had an opportunity to do so.(12) This Board finds that the Carter Group's main concerns -- the environmental integrity of the Saddle Hills(13) and the site selection process(14) -- have already been argued and addressed before the ERCB. Significantly, Mr. Carter advised the ERCB that he received a "full and fair" hearing(15) which is inconsistent with his more recent statements to this Board that the ERCB's discussion of environmental matters was just window dressing.(16)

The jurisdiction of this Board to become involved in a "review" of ERCB decisions that led to approvals which are eventually appealed here -- is limited to express statutory authority. The legislators have been very selective in ensuring there is no multiplicity of proceedings based upon similar evidence. This Board's ability to acquire jurisdiction and become involved in a review of the ERCB's evidence -- and a subpoena of government documents, as the Carter Group suggests we do, is not a minor thing. This is a Board with a jurisdiction that must remain within the terms found in s.87(5)(b)(i) of the Act. The Board noticed that Mr. Carter was noticeably upset with the Board's unwillingness to exercise discovery powers in his appeal but, again, it will not get into the merits of any given case unless it has jurisdiction to proceed forward. This Board will not entertain "fishing expeditions".

Mr. Carter stated on behalf of the Carter Group that his filing of an appeal, and his directing attention to his earlier statement of concern, combined with his allegations regarding administrative confusion in the Department, make a prima facie case. The Board disagrees. All parties, including the Carter Group, were asked to explain to the Board, with references to the record below or to case law, how s.87(5)(b)(i) is affirmatively answered in support of their position. While other parties did reference the record and the law, Mr. Carter essentially left the burden of argument and research in the Board's hands to discover his position. The Carter Group has had ample opportunity to brief the legal issue and present the crucial facts which this Board needs to assume jurisdiction - facts that were either different from those presented at the ERCB hearing or facts which could not have been discovered during the ERCB's hearing through a duly diligent search.

Where an appeal to the Board is based upon an ERCB approval (and subsequent Department approval) the Board must have before it certain crucial facts, specifically, whether or not: (1) there was participation or an adequate opportunity for participation by these same appellants, and (2) whether there are any new matters that were not before the ERCB, that are now before this Board. The Board understands that site selection and the effect of the Conwest Plant on the Saddle Hills is important to the Carter Group, as was evident from the earnestness with which Mr. Carter pressed their case to us. However, these issues can only be explored further if the Board has jurisdiction over this appeal. Mr. Carter has not shown compelling and persuasive reasons why the Board has jurisdiction; i.e., he has not shown the crucial facts or any evidence that leads the Board to conclude the Director's approval is factually or legally unsound with respect to the ERCB proceedings.

In appeals to this Board, the burden of proof normally lies on the appellant, in this case, the Carter Group.(17) To sustain this burden, the Carter Group must show by a preponderance of evidence that the Director acted unlawfully or abused his discretion when he relied on the ERCB's decision in granting Conwest's approval. The Carter Group must do more than reprise the same evidence that was before the ERCB -- or make allegations of insufficiency of evidence that has already been weighed. The Carter Group is attempting to do this in their arguments over the site selection criteria. These criteria have already been viewed by the ERCB or the Director (or the Director's representatives, who did appear at the ERCB hearing). They have also been viewed at the earliest stages of planning, which is a criterion found in the purposes (s. 2(b)) underlying the Environmental Protection and Enhancement Act.

The Board interprets s.87(5)(b)(i) of Environmental Protection and Enhancement Act to prevent relitigation of issues which have been decided and have substantially remained static, both legally and factually. The Board believes the ERCB decision operates as a barrier to a related appeal to our Board, in these circumstances: 1) where the appeal involves the same people who participated or had an opportunity to participate in the ERCB hearing or review; 2) where the matters appealed are identical; 3) were actually argued to the ERCB; 4) were essential to its judgement and material to its decision; and 5) properly relied upon by the Director. In other words, there is a strong presumption that appeals to this Board will not normally lie regarding the same issues of fact and the same parties that were before the ERCB.

In addressing section 87(5)(b)(i), where there is no new evidence and no new matters, our Board will not lightly allow an appellant to effectively re-open an ERCB decision. It may be that this Board will have jurisdiction if the ERCB decision is clearly erroneous in that it does not reflect the evidence or the record and therefore could have misled the Director, or that the ERCB decision and evidence is insufficient to support the decision reached by the Director in granting the approval. Assuming an appeal is otherwise valid, there may be circumstances where this Board would look closely at factual matters already decided by the ERCB, even where there is no new evidence. This would involve an exceptional case; for example, if the Director's decision was not clearly linked to the ERCB's evidence, or if it was, where the ERCB's decision was arbitrary (which would mislead the Director); or, if the ERCB clearly did not give effect to its new statutory (environmental) mandate and that decision caused the Director to unreasonably rely on certain evidence. These circumstances, however, are exceptional. They do not exist in this appeal. The ERCB did refer to the "public interest" in Decision D 94-6.(18) The Board believes this amendment, introduced by the Environmental Protection and Enhancement Act is a critical part of its new environmental mandate.(19) It is a mandate that the ERCB is now citing as the test that must be satisfied before approvals can be given.(20) The Board agrees.

The Director's discretion is properly exercised where he made a reasonable reliance on the ERCB's decision, which he did in this case. Again, this is not to say an ERCB decision which leads to a Director's approval and subsequent appeal to this Board cannot be challenged. An appellant may raise matters which have arisen between the time the ERCB decision was first reached and the appeal filed. Such matters could include changes in statutes or regulations, changes in material facts that would affect conditions in an approval, or matters based on the development of previously unavailable evidence. Conversely, an appellant cannot raise as a challenge to an approval, arguments which were available to the appellant when the ERCB heard the evidence and made its decision; nor can the appellant challenge the approval with evidence which arose but was not available to the appellant because of its decision not to participate during the ERCB hearings. At the same time, if an approval is granted, matters which the ERCB considered during its original hearing, where the Director or his representative is present at the hearing, are not appealable to this Board where the appellant did not raise the matters with the Director during the hearing.

Finally, we agree with Conwest's submission that parties who are primarily dissatisfied with a decision of the ERCB should ask the ERCB for a review of its decision,(21) or proceed to seek leave from the Alberta Court of Appeal on a question of law or jurisdiction.(22) The Carter Group did neither.

There is another matter which the Board wishes to address and that is waiver of appeal rights. There is ample evidence in the record to show the Carter Group did not fully participate, primarily before the hearing, because Mr. Carter felt Conwest's public relations exercise was a "snowjob". While it is possible to suggest there may be public consultation problems with some proponents, the evidence does not disclose this to be the case with Conwest. The ERCB was satisfied with the consultation in this case.(23) Regarding participation, Mr. McIntyre presented evidence to the Board to support the ERCB's finding. We accept his evidence. Mr. Carter did not offer any evidence to rebut this finding. His conscious decision not to fully participate below causes him, in the Board's mind, to risk abandoning issues in his notice of appeal that may have been viewed as good evidence but for his unwillingness to participate, and, therefore, find the opportunity to discover such evidence.

CONCLUSION

There must be an administrative finality to proceedings. It would be unfair to let any appellant raise or reassert the same matters which were heard earlier and decided by the ERCB in the proper exercise of its environmental and public interest jurisdiction. Second, where the Director has representatives at an ERCB hearing, participants must fully question the proponent and the Director at those proceedings or they risk losing the right to do so on appeal. In other words, one who fails to challenge the Department's decisions, (such as the Terms of Reference for an EIA) or fails to cross examine the Department's evidence at ERCB hearings, may not thereafter challenge the Director who has reasonably relied on ERCB evidence.

Having reached the decision to dismiss the Carter Group's appeal for the reasons stated above, the Board does not find it necessary to rule on the issues of whether or not (1) the notice of objection was proper, and (2) the appellants had standing. The Board however wishes to point out that it normally accepts all notices of objections that meet the spirit and intent of the Act and regulations. In other words, the Board is prepared to waive minor technical deficiencies as long as statutory and other legal requirements are met. And, regarding whether or not appellants are directly affected, the Board does not feel the same people who were involved in ERCB proceedings are granted ipso facto standing before our Board. As this Board stated in Wessley v. Director, Alberta Environmental Protection,(24) the test of directly affected is flexible and will depend on the circumstances of each case. This Board is, however, prepared to accept the rebuttable presumption that proximity to a plant increases the likelihood of being directly affected.

Finally, while we have reached the decision to dismiss this appeal without hesitation, we are concerned with several issues; first, the confusion caused by the different notices that were published regarding Conwest's application for an approval. The Board advises both the Director and the ERCB that it is incumbent upon them to make sure future notices are accurate and distinct, with respect to whose decision and application is being advertised and for what purpose. The Board is also disturbed by the role the Department took during the ERCB hearings. (We find it astonishing that Mr. Carter did not question that role.) As the ERCB decision points out, the Department was present at the ERCB hearing but the Department limited its role to cross examinations and argument only -- i.e., the Department could cross-examine others at the hearing but not vice-versa.(25)

The appeal by the Carter Group is dismissed pursuant to s. 87(5)(b)(i) of the Environmental Protection and Enhancement Act.

Signed and Dated on December 8, 1994, at Edmonton, Alberta.

William A. Tilleman, Chair

Joan C. Copp, Board Member

Max A. McCann, Board Member



Footnotes

1. According to the ERCB Decision D 94-6, Mr. Carter attended the hearing and represented: E. Borysiuk, S. Craipley, L. Good-Gerow, A. Iwaskow, K. McLean, F. Slauenwhite. According to the written submissions of Conwest to this Board, Mr. Carter presented the same list of names (landowners who he represents) to both Boards (Tabs 10, 11 Conwest submissions).

2. For purposes of the preliminary meeting, the "parties" were determined by the Board to be: the landowners, who were represented by Mr. J. Darryl Carter of Carter, Locke and Repka; Conwest Exploration Company Limited, represented by Mr. Peter J. McIntyre; Alberta Environmental Protection, represented by Mr. William McDonald; and the Energy Resources Conservation Board, represented by Mr. Michael J. Bruni. Also in attendance for the ERCB was Mr. Bob Heggie, the counsel who attended the ERCB hearing.

3. In the course of the presentations, seven exhibits were filed with the Board:

A. Map showing 8 km radii for four alternative plant sites;

B. Portion of a map of the County of Grande Prairie;

C. Submissions of Conwest Exploration Company Limited to the preliminary meeting on Nov. 2 and 3, 1994;

D. Letter dated October 18, 1994 from Mr. Peter J. McIntrye, representing Conwest Exploration Company Limited, to Mr. J. Darryl Carter regarding the jurisdiction of the Environmental Appeal Board;

E. Correction Notice published by Alberta Environmental Protection on April 28, 1994;

F. Organization chart for Environmental Regulatory Services, Alberta Environmental Protection sent by Mr. Eriksen to Mr. Carter on September 16, 1994; and

G. Terms of Reference for the environmental impact assessment on the proposed Conwest sour gas processing plant.

4. ERCB Decision D 94-6 , p.3.

5. ERCB Decision D 94-6 , p.3.

6. ERCB Decision D 94-6 , p. 4.

7. ERCB Decision D 94-6 , p.5.

8. ERCB Decision D 94-6 , p.7.

9. ERCB Decision D 94-6 , p.7.

10. ERCB Decision D 94-6 , p.14.

11. ERCB Decision D 94-6 , p.16.

12. The Department officials were at the ERCB hearing, but no one questioned their role or objected to the positions they took.

13. The Carter Group gave its own evidence on this issue (ERCB transcipt, pp. 605, 683, 689, 713-714, 729-731); Mr. Carter cross-examined others on Saddle Hills (ERCB transcript, pp. 140-157,282-288, 295).

14. The Carter Group gave its own evidence on the issue of site selection (ERCB transcript, pp. 602-610, 622-627, 630-651).

Mr. Carter also cross-examined on this issue (ERCB transcript pp. 77-158, 415-443).

15. ERCB transcript, pp. 893 and 927.

16. The Carter Group's notice of objection, page 3, paragraph 3.

17. EAB Rules of Practice, part IV, section K.

18. See supra note 11.

19. This new mandate is found in ss.l(d) and 2.1 of the Energy Resources Conservation Act (s. 246 (5) of the EPEA). Although Mr. Bruni, the ERCB's counsel, did not feel the recent amendment to the ERC Act has made a difference to the operation of the Board (EAB transcript, pp.132-138), we accept the evidence of Mr. McIntyre, who felt the new amendment has placed a substantial environmental mandate on the ERCB's decisionmaking responsibilities. (EAB transcript,p. 171). Mr. McDonald also agreed with this perspective (EAB transcript, p. 107). So does the Board.

20. ERCB Decision D 94-8, Application for an Exploratory Well -Amoco Canada Petroleum Company Limited - Whaleback Ridge Area, p.34 (Sept. 1994). In that decision, the ERCB said "[We are] charged under section 2.1 of the Energy Resources Conservation Act with considering '...whether the project is in the public interest, having regard to the social and economic effects of the project and the effects of the project on the environment'. It is this test of public interest which must be met before a project can be deemed acceptable by the Board."

21. This authority is found in s.42 of the Energy Resources Conservation Act,.

22. This authority is found in s.44of the Energy Resources Conservation Act.

23. ERCB Decision D 94-6 , p.5.

24. [1994] E.L.D. E20/10-8.

25. ERCB Decision D 94-6, p. 2

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