Appeal No. 95-025

 

Date of Discontinuance of Proceedings - July 9, 1999

 

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 Mr. Charlie Chalifoux of the Lesser Slave Lake Indian Regional Council with respect to Approval No. 95-IND-237 issued by the Director, Chemicals Assessment and Management Division, Alberta Environmental Protection to Chem-Security (Alberta) Ltd. for the importation and treatment of PCB waste.

Cite as: Chalifoux v. Director of Chemicals Assessment and Management, Alberta Environmental Protection re: Chem-Security (Alberta) Ltd.

 

TABLE OF CONTENTS

BACKGROUND 1
Decision on Status to Appeal  2
Requests for Intervenor Status 6
Withdrawal of Mr. Chalifoux's Appeal 7
Statutory Requirements 9
DECISION 12

 

BACKGROUND

[1] This appeal relates to the operation of the Alberta Special Waste Treatment Centre (ASWTC) near Swan Hills, Alberta.

[2] Mr. Charlie Chalifoux, the person who filed the appeal, now seeks to withdraw the appeal, following a settlement with Chem-Security (Alberta) Ltd. the operator of ASWTC. Chem-Security and other Respondents maintain that section 87(7) of the Environmental Protection and Enhancement Act(1) [the Act] now requires that the Board discontinue its proceedings. Certain intervenors, Mr. Ed Graham and Mr. Richard and Ms. Carolyn Aarsen, oppose that view and urge the Board to continue notwithstanding Mr. Chalifoux's decision to withdraw his appeal.

[3] On November 30, 1995, the Acting Director of Chemicals Assessment and Management, Alberta Environmental Protection (Director) issued Approval No. 95-IND-237 (Approval) renewing an existing approval to Chem-Security (Alberta) Ltd. to operate the Alberta Special Waste Treatment Centre. The approval was due to expire on December 1, 2005. It was the first permanent approval for the operation of the incinerator issued pursuant to the Act.

[4] The Director had previously issued permits to construct under s. 3 of the Clean Air Act and s. 3 of the Clean Water Act on October 22, 1992. A test burn licence for the purposes of testing and commissioning before normal operations commenced had previously been issued under s. 4 of the Clean Air Act on December 23, 1993.

[5] On December 20, 1995, Mr. Ed Graham filed an appeal with the Board on behalf of the Alberta Trappers Association.

[6] On December 21, 1995, Mr. Charlie Chalifoux of the Lesser Slave Lake Indian Regional Council filed an appeal with the Board.

[7] The Board advised the Director and Chem-Security (Alberta) Ltd. that the Approval had been appealed, and the Director was asked to provide copies of the application and the Approval. On February 5, 1996, the Board wrote to the Natural Resources Conservation Board (NRCB), asking the NRCB to confirm that it conducted a hearing and to request a copy of their decision.

[8] On February 9, 1996, Mr. William Kennedy, Solicitor for the NRCB, advised the Board that the NRCB had "conducted reviews of two reviewable projects in relation to the Alberta Special Waste Treatment Centre....". Those reviews resulted in NRCB Decision Report 9101(2) and NRCB Decision Report 9301(3).

[9] The Appellant Chalifoux maintained that the Approval should be revoked, inter alia, because fugitive emissions from the plant were likely to be excessive, and because the Approval did not address the recommendations, concerns, and conditions of NRCB Approval Decision 9301. Mr. Graham expressed similar concerns.

Decision on Status to Appeal

[10] The Environmental Appeal Board held a preliminary meeting pursuant to s.87 of the Act on May 6 and May 7, 1996. This meeting dealt with the jurisdiction of the Board to hear the issues raised by Mr. Chalifoux, and accordingly, whether or not the Board should proceed with consideration of his appeal. In the same preliminary meeting the Board considered similar issues arising from Mr. Graham's appeal.

[11] The Board issued a detailed decision on June 28, 1996 dealing with the matters raised at the May 6 and 7, 1996 preliminary meeting. That decision reviewed the Act's requirement that a person submitting a notice of appeal must be "directly affected" by the approval in question. The Board dealt specifically with the status of the Lesser Slave Lake Indian Regional Council, Mr. Charlie Chalifoux, Mr. Ed Graham and The Alberta Trappers Association to file appeals. The Board said in part:

Application of the "Directly Affected Principles"

Lesser Slave Lake Indian Regional Council

The Alberta Court of Appeal held in Friends of the Athabasca Environmental Association et al v. Public Health Advisory and Appeal Board,(19) that for the purpose of establishing a direct effect, it is not enough for a corporate body to merely represent the interests of those who may be directly affected. There is no evidence that either the Lesser Slave Lake Indian Regional Council or the eight First Nations it represents are directly affected as organizations. Consequently, neither the Regional Council, nor the First Nations are parties directly affected. However, the position of the individuals named in the LSLIRC Notice of Objection may be different.

Charlie Chalifoux

Mr. Chalifoux is the junior trapping partner of Sam Sawka, who is the senior holder of registered trapping location No. 1259, which adjoins the plant on the east, north, and west. This partnership status gives him a specific personal interest in trapping the area that immediately joins the plant. He regularly traps within 2-3 miles of the plant and has a personal interest in trapping rights dependent on wildlife resources in the area that extends to the plant boundaries. The wildlife and its habitat may potentially be adversely affected by emissions from the plant. This trapping interest, and its very close geographical proximity to the plant, and Mr. Chalifoux's use of the area, makes him a person directly affected by the Approval for the purpose of s.84 of the Act.

Ed Graham

Mr. Graham is holder of trap line location No. 1812, located approximately 25 km East of Swan Hills. He lives downstream on Timeu Creek which rises just south of the plant. Mr. Graham represents the Zone 3 Trappers Association, which in turn represents trappers in the trapping zone in which the plant is located. In the Board's opinion, these factors alone would not establish the necessary proximity to the Plant and causal connection to make Mr. Graham a person directly affected. Nor was there evidence to suggest that the Alberta Trappers Association Zone 3 is directly affected as an association.(4)

[12] In that same decision, and in the context of Mr. Ed Graham's notice of appeal, the Board considered the position of Ms. Carolyn Aarsen.

At the Board's preliminary hearing, Mr. Graham responded to questions concerning Carolyn Aarsen, who holds trapping location No. 1580. This location directly adjoins the plant to the southeast. Ms. Aarsen appeared at the NRCB hearing. The exchange was as follows:

Q. (The Chairman) A-A-R-S-E-N okay. So Carolyn Aarsen traps in 1580?

A. (Mr. Graham) Yes.

* * * * *

Q. The Chairman: So she's a registered owner of that trapline?

A. Yes.

Q. And you're her partner, which means you trap there as well?

A. No. I'm not her partner in the sense of trapping in her area. I'm in the same Fort Assiniboine Association.

Q. Okay. So you represent the Association?

A. Yes. (Transcript p.118-119)

The result is that Mr. Graham has no personal interest in location no.1580 which is in very close proximity to the plant, and which may potentially be adversely affected by emissions from the plant. He is therefore not a person directly affected. Ms. Aarsen does appear to be directly affected. However, since she is not a named appellant, she cannot be a party to this appeal, at this point in time.(5)

[13] Later in its June 28, 1996 decision the Board considered a request from the Lesser Slave Lake Indian Regional Council to amend its notice of objection so as to name additional persons, individually, as appellants. The Board said:

Amendment of Notice of Objection

The Lesser Slave Lake Indian Regional Council applied to amend its Notice of Objection, apparently to make it clear that the individuals listed on the Notice of Objection were objecting in their personal capacities.

However, we are satisfied that the individuals whose names appear in the Notice of Objection filed by the Lesser Slave Lake Indian Regional Council intended to object as individuals. It is, therefore, not necessary to amend the Notice of Objection as proposed, and the motion to amend is denied.(6)

[14] The Board concluded its June 28, 1996 decision by saying:

The Board determines that Charlie Chalifoux is a person "directly affected" whose appeal may be heard by this Board.(7)

In making this finding, the Board rejected the arguments that others had filed valid appeals which might proceed. This included Ms. Aarsen, who was never a named appellant and Mr. Ed Graham who lacked directly affected status.

[15] In the Board's reference to Ms. Aarsen it said "... since she is not a named appellant, she cannot be a party to this appeal, at this point in time."(8) The decision makes it clear that Ms. Aarsen was never properly a named appellant. Therefore, she was not a party as of right under s. 1(f)(i) of the definition of "party" in the Regulation.(9) The words "... at this point in time" are an indication that she might nonetheless became a party under s. 1(f)(iii) sometime in the future. It was not any indication that she had a notice of appeal filed in her own right that might yet be acted upon by the Board.

[16] No judicial review was taken that questioned these rulings on the standing to file an appeal. No subsequent Board decision reconsidered those findings. Mr. Chalifoux has remained the sole appellant throughout.

Requests for Intervenor Status

[17] Following the Board's preliminary decision on standing, and according to its usual process, the Board advertised its upcoming hearing on Mr. Chalifoux's appeal. As a result, it received several requests for party or intervenor status.

[18] On July 30, 1997 the Board issued a letter describing its decisions on those requests. Nothing in that decision altered the fundamental proposition established on June 28, 1996 that Mr. Chalifoux was the sole appellant.

[19] These rulings were all made in the context of requests by persons to participate in Mr. Chalifoux's appeal. None of the rulings purport to add new appellants, nor do they purport to convert Mr. Chalifoux's appeal from one filed in his own name as appellant to a multi-person appeal. Indeed, to have done so would have been a direct reversal of the June 28, 1996 decision to refuse the Lesser Slave Lake Indian Regional Council's request to amend its notice of appeal. Instead the Board simply indicated that Mr. Chalifoux's input into the hearing process would be sufficiently representative of similar interests that it was unnecessary to add certain parties as formal parties or intervenors.

[20] Following these rulings, the parties litigated a series of issues before the Courts which took considerable time to resolve. The Board then dealt with a request from Mr. Chalifoux to reconsider the scope of the hearing. Once these matters were dealt with the Board took steps to schedule the matter for hearing.

[21] In April 1998 the operator arrived at a settlement with the Lesser Slave Lake Indian Regional Council. Chem-Security initially took the position that this settlement resolved Mr. Chalifoux's appeal. Mr. Chalifoux took the position, which the Board accepted, that since he was the named appellant and he had not participated in the settlement, that the appeal remained outstanding.

[22] The Board scheduled a hearing into Mr. Chalifoux's appeal for May 18 and 19, 1999. The subject matter for this hearing was:

1. PCB fugitive emissions, including any impact of such emissions, whether they be direct, indirect or cumulative in their effect; and

2. Off-site discharge of surface water including direct, indirect and cumulative effects.

[23] The Board granted intervenor status for this hearing to several intervenors and parties, including the Mayor of the Town of Swan Hills, Mr. Sam Sawka, Mr. Harvey Giroux, Ms. Carolyne and Mr. Richard Aarsen, Mr. Ed Graham and the Reeve of the Woodlands County. Again, nothing in this process changed the identity of the appellant, or gave these intervenors appellant status.

Withdrawal of Mr. Chalifoux's Appeal

[24] On May 11, 1999 one week before the hearing, the Board received a letter from Mr. Richard Secord withdrawing Mr. Chalifoux's appeal.(10) He stated:

"Please be advised that we have been instructed by Mr. Chalifoux to withdraw his Appeal of Approval 95-IND-237 which was filed on December 21, 1995.

Accordingly, Mr. Chalifoux will not be proceeding with the Appeal scheduled for May 18 and 19, 1999."

[25] On May 11, 1999, the Board received a letter from Mr. Richard Neufeld, representing Chem-Security (Alberta) Ltd., stating in part:

"With the abandonment of the appeal, CSAL will, for obvious reasons, not be filing any evidence, and we look forward to formal confirmation of cancellation of the hearing in due course."

[26] After receiving Mr. Chalifoux's withdrawal and Chem-Security (Alberta) Ltd.'s request for confirmation that the appeal was thereby discontinued, the Board sought input from those who had indicated a wish to participate in the appeal.

[27] On June 1, 1999, Mr. Robert Wilde, writing on behalf of Mr. Ed Graham as well as Ms. Carolyn and Mr. Richard Aarsen, wrote to the Board asking that the appeal continue notwithstanding the earlier settlement by the Lesser Slave Lake Indian Regional Council and the more recent settlement and withdrawal by Mr. Chalifoux.

[28] Mr. Wilde made the following points in favour of the appeal continuing:

"When Mr. Ed Graham requested status prior to the June 1996 decision he was the designated representative for the Alberta Trappers Association (ATA). Thus he was representing other ATA members, including the Aarsens..."

"The Aarsen's directly affected status has been acknowledged by the Board in the June 1996 decision: this status has never been appealed by CSAL or anyone else."

"From the June 1996 decision, it is by no means clear that the Board granted Mr. Chalifoux status as sole appellant exclusively because of his personal interest. It wasn't until July 30, 1997, that the Board enunciated Chalifoux's status relative to the other directly affected parties. By that time, Ms. Aarsen had submitted her personal letter of concern. ..."

[29] Mr. Wilde's letter went on to emphasize that the Aarsen's concerns were expressed in a statement of concern submitted in relation to the original appeal and had been repeated in Mr. Graham's notice of appeal in 1995. He asked, based on this:

"Should the hearing be discontinued on the basis of the letter of the law? - That Ms. Aarsen did not submit a personal statement of concern believing her concerns valid for the Board when iterated on her behalf by her ATA representative."

[30] The letter urges against a discontinuance without a full public hearing on the concerns identified in the Board's previous decision. It suggests that a discontinuance by one, but not all, of the directly affected parties, does not satisfy the intent of the legislation.

Statutory Requirements

[31] The starting point from the Board's consideration of this question is section 87(7) of the Act which provides, in mandatory terms:

87(7) The Board shall discontinue its proceedings in respect of a notice of appeal if the notice of appeal is withdrawn.

[32] The Act does not say specifically by whom the notice of appeal may be withdrawn. However, in the absence of anything in the Act giving some other person the power to withdraw the notice of appeal, it is evident that the person entitled to withdraw the notice is the same person who filed it in the first place. A review of the process in the Act for processing appeals, from filing under section 84 forward, reveals no point at which anyone but the person whose notice of appeal is filed gains either carriage of the appeal or any right to protest its withdrawal of the notice.

[33] It is possible for several persons to file notices of appeal under section 84. Indeed, that happened in this case. However, as described above, only Mr. Chalifoux's notice of appeal remained extant at the point of his withdrawal. It is also possible, where several notices of appeal are filed, for the Board to combine those notices for the purposes of dealing with them.(11)  That was not the case here.

[34] Once an appeal is properly filed by a person with the necessary status under s. 84, the Act then gives opportunities for interested parties to make submissions on an appeal. For example, section 87(2) and (3) provide, in part:

87(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 an appeal...

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

[35] The Environmental Appeal Board Regulation(12) reflects these statutory opportunities to participate in an appeal filed by another person. The Board may accept persons other than the appellant as a party under s. 1(f) of the Regulation. Section 7(1)(a) and (b), 7(2)(c) and 9(1) all deal with the process to be followed by intervenors.

[36] However, inviting or allowing submissions under these sections does not give any non-appellant carriage over the appeal or any authority to subsequently object to its withdrawal.

[37] Similarly, section 87(6) allows the Board to permit non-appellants to make representations on an appeal.

87(6) Subject to subsections (4) and (5), the Board shall, consistent with the principles of natural justice, give the opportunity to make representations on the matter before the Board to any persons who the Board considers should be allowed to make representations.

Once again, allowing such representation gives the individuals involved no ability thereafter to carry the appeal forward themselves or to prohibit its withdrawal.

[38] A citizen who files a notice of appeal, to be eligible as an appellant under section 84, must be "directly affected". They must also meet certain other requirements, depending on the case. As a minimum, they must file a timely notice of appeal.(13) There will often be citizens who are directly affected who do not appeal, but later seek to intervene in proceedings launched by others. The fact that they also are directly affected persons does not elevate them to the status of appellant.(14) To hold otherwise would allow directly affected persons to take over an appeal launched but withdrawn by another person, when in their own right they may not have met the other conditions for appellant status under section 84. This cannot be the intention of the legislature.

DECISION

[39] The Board's conclusion is that, throughout, Mr. Charlie Chalifoux has remained the sole appellant. It is Mr. Chalifoux alone that has the right to withdraw his appeal and he has done so. Nothing in the Act or the Regulation vests anyone else with the authority to prohibit his decision to withdraw or to continue the appeal notwithstanding that withdrawal. The granting of party or intervenor status does not vest an individual with any ability to prevent the named appellant withdrawing their own appeal.

[40] The Board appreciates the sincerity of the intervenor's wish to see their concerns aired. However, the Board is bound by the mandatory nature of s. 87(7).

[41] Pursuant to Section 87(7) of the Environmental Protection and Enhancement Act, and based on Mr. Secord's letter of May 11, 1999, the Board hereby discontinues its proceedings in Appeal No. 95-025 and will be closing its file.

Dated on July 9, 1999, at Edmonton, Alberta.

William A.Tilleman


Footnotes

1. S.A. 1992, ch. E-13.3 as amended.

2. (April 1992), which dealt specifically with the expansion of the incineration capacity.

3. (November 1994), which dealt specifically with the importation of hazardous wastes from other Canadian jurisdictions.

4. Ed Graham et al v. Director of Chemicals Assessment and Management, Alberta Environmental Protection, EAB No. 95-025 (June 28, 1996) at 10-13.

5. Ibid, at 12.

6. Ibid, at 28.

7. Ibid, at 28.

8. Ibid, at 13.

9. Environmental Appeal Board Regulation 114/93 as amended.

10. The Board also received on May 11, 1999 a letter dated May 10, 1999 from Ms. Jeneane Grundberg on behalf of Woodlands County stating:

"Please be advised that Woodlands County is hereby withdrawing its participation in the impending appeal scheduled for May 18 and 19, 1999 in this matter.

After obtaining intervenor status in this matter, Woodlands County continued discussions with Bovar. Woodlands County is satisfied that Bovar has appropriately addressed the County's concerns."

11. See the Environmental Appeal Board Regulation 114/93 as amended s. 3. Section 3 states:

(3) Where the Board receives more than one notice of appeal in respect of a decision, it may combine the notices of appeal for the purposes of dealing with them under this Regulation.

12. Alberta Regulation 114/93 as amended.

13. Section 84(4) of the Act:

A notice of appeal must be submitted to the Board

(a) not later than 7 days after receipt of a copy of the enforcement order or the environmental protection order, in a case referred to in subsection (1)(e), (f) or (h),

(b) not later than one year after receipt of a copy of the reclamation certificate, in a case referred to in subsection (1)(i) relating to the issuing of a reclamation certificate, and

(c) not later than 30 days after receipt of notice of the decision appealed from or the last provision of notice of the decision appealed from, as the case may be, in any other case.

14. Although in some cases it may justify their being accepted as intervenors where they might otherwise not be.