Appeal No. 96-070


Date of Hearing - June 4 and 6, 1997
Date of Report and Recommendations - June 6, 1997

 

IN THE MATTER OF Sections 84, 85, 86, 87 and 91 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. Joe Przybylski and Mr. Robert Przybylski, with respect to Approval No. 18756-00-00/Application No. 001-18756 issued to Cool Spring Dairy Farms Ltd., by Mr. David Spink, Director of Air and Water Approvals Division, Alberta Environmental Protection.

Cite as: Przybylski v. Director of Air and Water Approvals Division, Alberta Environmental Protection

HEARING BEFORE

Dr. John P. Ogilvie, Panel Chair
Dr. Steve Hrudey
Mr. Ron Peiluck

APPEARANCES

Appellants: Mr. Joe Przybylski and Mr. Robert Przybyski, represented by Mr. Garry Appelt of Witten Binder

Other Parties: Mr. Raymond Bodnarek, Environmental Law Section, Alberta Justice, representing the Director of Air and Water Approvals Division, Alberta Environmental Protection

Mr. Hans Mullink, Cool Spring Dairy Farms Ltd., represented by Mr. Larry Wells of Kay, Shipley, McVey & Smith

BACKGROUND

On August 13, 1996, the Environmental Appeal Board (the Board) received a Notice of Appeal dated August 9, 1996, filed by Mr. Joe Przybylski and Mr. Robert Przybylski (the Appellants). The appeal challenges Approval No. 18756-00-00/Application No. 001 18756 issued to Cool Spring Dairy Farms Ltd.(Cool Spring Dairy), for the construction, operation and reclamation of the Whitelaw forage drying facility. The Approval was issued on July 19, 1996, by the Director of Air and Water Approvals Division.

The Board wrote to the Przybylskis on August 14, 1996, acknowledging receipt of their appeal and by copy of that letter requested all related correspondence, documents and materials from the Department of Environmental Protection (the Department).

All requested correspondence was received from the Department on August 23, 1996, and a copy was sent to all parties. Along with the information sent to the parties, the Board requested comments from the Appellants to several matters related to their appeal. The Board also requested comments from all parties on procedural issues.

Written representations were received from the parties and a mediation meeting was scheduled for October 10, 1996, but was later adjourned to October 18, 1996. The mediation meeting did not take place on the scheduled date due to inclement weather conditions. All parties agreed that a hearing would be scheduled for November 25, 1996, and written submissions were to be received by November 18, 1996.

On November 19, 1996, the Board received a letter from Mr. Garry Appelt of Witten Binder, informing the Board that he would be representing the Przybylski family and requesting an adjournment to the hearing. Mr. Appelt also informed the Board that he had spoken with the other parties and that they had no objection to an adjournment. On November 20, 1996, the Board granted the adjournment of the hearing. On December 4, 1996, through consultation with all parties, a hearing date was set for February 25, 1997, and written submissions were requested by February 17, 1997.

On December 17, 1996, an application for interim costs was received by the Board from counsel for the Appellants. A meeting date was set for January 6, 1997, by the Board to hear Mr. Appelt's application for costs. Correspondence was received from both the Department and Mr. Appelt requesting that the application for costs meeting be rescheduled and on January 2, 1997, the Board granted this request.

On February 18, 1997, the Department wrote and informed the Board that a plea would be entered on February 26, 1997, regarding a prosecution of the Approval holder. The Department asked that the hearing (scheduled for February 25, 1997) be adjourned pending resolution of the prosecution. On February 19, 1997, the Board wrote to all parties informing them that there would be an adjournment to the hearing but only until after the plea had been entered.

On February 21, 1997, the Board received written notification from Mr. Larry T. Wells of Kay, Shipley, McVey and Smith, that he was now representing Mr. and Mrs. Mullink.

Next, the Appellants on February 27, 1997, applied in writing pursuant to section 89 of the Environmental Protection and Enhancement Act, for a Stay of the decision of the Director pending the appeal. The relevant portions of this section reads:

Stay of decision

89(1) Subject to subsection (2), submitting a notice of objection does not operate to stay the decision objected to.

(2) The Board may, on the application of a party to a proceeding before the Board, stay a decision in respect of which a notice of objection has been submitted.

The Board wrote to all parties on February 28, 1997, informing them that in light of the Stay application, the Board requested a response to Mr. Appelt's submission within 10 days. Comments were due by 4:30 p.m. on March 10, 1997, to the Board's office. Upon receipt of all responses the Board notified the parties that it would then be conducting a hearing of the Stay application, based on written submissions, as outlined in section 86 of the Environmental Protection and Enhancement Act(1) (Act). Once the Board reviewed all submissions it would accordingly issue a Decision on the Stay application.

Following the Boards review of all submissions the Board issued a Decision on April 1, 1997, granting the Stay requested by the appellant.(2)

On April 9, 1997, the Board received an Originating Notice and Affidavit filed with the Court of Queen's Bench, Judicial District of Grande Prairie, from Mr. Larry Wells on behalf of Cool Spring Dairy Farms Ltd.

Following proceedings held in the Court of Queen's Bench with Madam Justice M.B. Bielby on April 18, 1997, the Board scheduled a hearing for May 5 and 6, 1997.

On May 2, 1997, counsel for the Appellants advised that they would be applying for an adjournment of the scheduled hearing on May 5, 1997. They were requesting this adjournment as they were awaiting materials in the possession of Alberta Justice, Special Prosecutions and required time to adequately review and prepare written submissions. An application for Interim Costs was also received by the Appellant's counsel on May 3, 1997.

THE HEARING

A hearing commenced in Edmonton, Alberta on May 5, 1997, and was adjourned at the request of the Appellants. The Board directed the parties to re-convene on June 4, 5 and 6, 1997. The Board requested submissions regarding the costs application submitted by the Appellants due by May 9, 1997, and written submissions in regard to the subject matter of the appeal due by May 28, 1997.

After reviewing the costs submissions received, the Board determined that no interim funding would be provided but invited all parties to apply for costs at the end of the hearing.

On May 16, 1997, an amended Notice of Appeal was received by the Board from the Appellants with an additional grounds as follows:

"The provisions of 4.2.1 and 4.2.2, even if abided by, are inadequate to control the release of substances at this site.

4.1.1 and 4.1.2

The plant should not be allowed to operate at all during the hours of 2000 to 0600. Also, the noise abatement controls are inadequate."

On June 4, 1997, the parties re-convened and advised the Board that negotiations seeking a resolution of the subject matter were reinitiated and ongoing. All parties sought the Board's indulgence to continue with these negotiations and advised that they would imminently provide the Board with the results of these negotiations. With these new facts, the Board scheduled the hearing for June 6, 1997 (two days later). On June 6, 1997, the parties convened with the Board and announced a resolution of the matters had been achieved and provided the Board with an agreed upon resolution signed by all parties. This agreement includes the withdrawal of the appeal by the Appellants.

The resolution of this appeal is included at pages 7 to 13 of this Report.

RECOMMENDATIONS

The Board recommends that the Minister of Environmental Protection approve the decision of the Director of Air and Water Approvals Division in Approval No. 18756-00-00, subject to all of the conditions of the Resolution contained herein.

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

Dated June 6, 1997, at Edmonton, Alberta.

Dr. John P. Ogilvie
Dr. Steve Hrudey
Mr. Ron Peiluck

ORDER

I, Ty Lund, Minister of Environmental Protection:

Agree with the Recommendations of the Environmental Appeal Board and order that they be implemented.

Dated at Edmonton this 10 day of June 1997.

Honourable Ty Lund
Minister of Environmental Protection

 

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Footnotes

(1) Section 86(2) of the Environmental Protection and Enhancement Act states:

86(2)In conducting a hearing of an appeal under this Part the Board is not bound to hold an oral hearing but may instead, and subject to the principles of natural justice, make its decision on the basis of written submissions.

(2) EAB 96-070 Decision issued April 1, 1997. Przybylski v. Director of Air and Water Approvals Division, Alberta Environmental Protection.