Appeal No. 97-005 - 97-016


Preliminary Meeting: September 23, 1997
Date of Decision: September 26, 1997

IN THE MATTER OF Sections 84, 85, 86 and 87 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

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IN THE MATTER OF an appeal filed by Nick Zon; Balder Von Hohenbalken; Charles Spilsted; Stu Chase; Blair Carmichael, Dwayne Zon; Gary Gylytiuk; The Summer Village of Kapasiwin and Donna Thomas; The Summer Village of Point Alison and Gwen Bailey; James Paron; David Doull; and Bradley Scott Cowley, with respect to Approval No. 10323-01-00 issued by the Director, Air and Water Approvals Division, Alberta Environmental Protection to TransAlta Utilities Corporation.

Cite as: Nick Zon et al. v. Director of Air and Water Approvals Division, Alberta Environmental Protection.

PRELIMINARY MEETING BEFORE

Dr. William A. Tilleman, Chair
Dr. Ted W. Best
Dr. Steve E. Hrudey

APPEARANCES

Appellants: Mr. Nick Zon represented by Mr. A.O. Ackroyd, Q.C.; Dr. Balder Von Hohenbalken; Mr. Charles Spilsted; Mr. Stu Chase; Mr. Blair Carmichael; Mr. Dwayne Zon; Mr. Gary Gylytiuk; Ms. Gwen Bailey and the Summer Village of Point Alison, represented by Mr. K.F. Bailey; Mr. James Paron, represented by Mr. Samuel Kravinchuk; and Mr. David Doull.

Other Parties: Mr. David Spink, Director, Air and Water Approvals Division, Mr. Ernie Hui, Mr. Clement Ng, Alberta Environmental Protection, represented by Mr. Stan Rutwind.

Mr. Fred Lindsay, Mr. John Watt, Mr. Simon Emms, Mr. John Tapics, and Ms. Hermien Pluimers, TransAlta Utilities Corporation, and Ms. Stella Swanson of Golder Associates, represented by Mr. Steven Ferner.

BACKGROUND

On March 27, 1997, the Director of Air and Water Approvals, Alberta Environmental Protection (Director) issued Approval 10323-01-00 (Approval) to TransAlta Utilities Corporation (TransAlta) for the Wabamun thermal electric power plant.

On April 16, 1997, Mr. Richard Secord filed an appeal on behalf of Mr. Nick Zon for the Approval with the Environmental Appeal Board (Board). Further appeals were filed by Dr. Balder Von Hohenbalken, Mr. Charles Spilsted, Mr. Stu Chase, Mr. Blair Carmichael, Mr. Dwayne Zon, Mr. Gary Gylytiuk, Mr. Dennis R. Thomas (on behalf of Ms. Donna Thomas and the Summer Village of Kapasiwin), Mr. James Paron, Mr. K.F. Bailey (on behalf of Ms. Gwen Bailey and the Summer Village of Point Alison), Mr. David Doull and Mr. Bradley Scott Cowley.

The Board advised the Director and TransAlta that the Approval had been appealed, and asked for copies of all related correspondence, documents and materials. On May 8, 1997 and May 15, 1997, the Board wrote to the Natural Resources Conservation Board (NRCB), and the Alberta Energy and Utilities Board (AEUB) asking whether the matter was the subject of a public hearing or review under their Boards.

Response from the NRCB was negative, but the AEUB documented the history of the Wabamun plant in earlier ERCB proceedings.

THE PRELIMINARY MEETING

The Board held a preliminary meeting on September 23, 1997, in order to determine which Appellants were directly affected, who should be granted party status, and which matters contained in the notices of objection should become the basis for the hearing that will occur on October 7, 1997.

SUBMISSIONS BY THE PARTIES

Standing

The Board first addressed the issue of party status. The Appellants ("Group 1") that requested standing include:

All of these individuals submitted that they were directly affected by the Approval, and therefore that they should be granted full party status at the hearing. The Department did not take a position on the standing issue. TransAlta did submit that not all of the Appellants were directly affected by all issues, leaving by implication the understanding that all of the Appellants were directly affected, but some may be affected to a lesser extent, on some of the issues.

The second group ("Group 2") was comprised of persons who responded in writing to the Board's notice of hearing to potential intervenors. This group, none of whom were present at the preliminary meeting, includes:

The Board also entertained discussion regarding the status of the Summer Village of Point Alison, Gwen Bailey, the Summer Village of Kapasiwin, and Donna Thomas. These individuals and/or organizations had filed notices of appeal, had timely filed written submissions, and had participated in the Board's mediation process that was held pursuant to their appeal.

Finally, letters were also filed from individuals and groups who did not want to appear before the Board, but who wished to express their position regarding the Approval. The Board noted that these letters can be responded to by any party who wishes to do so, and will be filed as part of the Board's record.

Matters

The last issue to be determined by the Board was that of matters that would be included in the hearing of the appeal. Based exclusively on the written submissions of the Appellants, the Board raised five general issues and allowed comment from all parties before finalizing the matters. These matters were:

Once questioned, the Appellants seemed satisfied that these issues encompassed their concerns. However, the Department was concerned that "lake level" was not within the jurisdiction of the Board, but rather the level, per se, is under the jurisdiction of the Minister of Environmental Protection and of the Controller of Water Resources. The Department also submitted that the full hearing would be unnecessarily prolonged if the Board fully addressed the issue of lake level. Director's counsel indicated that a longer hearing addressing issues outside the jurisdiction of the Director of Air and Water Approvals, would unduly "tie up" other Directors who have other work commitments.

Mr. Ferner, on behalf of TransAlta, also expressed his concerns about the lake level matter. He further submitted that the issues as summarized by the Board (air, water, etc.) were too broad and that he would have difficulty preparing his submissions for the hearing unless there were more specific parameters regarding environmental media.

DECISION

Participation by the Summer Village of Point Alison et al.

The Board has decided that Ken Bailey should be allowed to appear at the hearing on behalf of the Summer Village of Point Alison and Gwen Bailey in order to speak to the agreement that may/not be signed between these individuals or groups and TransAlta Utilities. Such an agreement, if it exists, may be tendered at the hearing and Mr. Bailey will have the opportunity to speak to the agreement, and defend it if necessary. The Board has also decided that this group should have the opportunity to file written submissions, and should it elect to do so, these must be filed by October 2, 1997. The same applies to Mr. Thomas' clients, Donna Thomas and the Summer Village of Kapasiwin.

Parties to the appeal

Given the fact that all remaining Appellants own property either on the lake or, in one case, one lot away from the lake, and all use the environmental amenities of the lake, the Board has decided that all remaining Appellants are, in some manner, directly affected by the TransAlta Approval and can proceed to the appeal.

With respect to Group 2 (those people who responded in writing to the Board's request for participation) the Board has decided that they should be given the opportunity to participate through the mechanism of full written arguments, that are to be filed by the same date as all other parties - October 2, 1997. There will be no oral submissions made by this second group. However, if the original Appellants wish to cross-examine the people who filed written submissions, they can notify the Board by October 2, 1997, of their desire to do so and their reasons for requesting this right. The Board will then make a determination as to whether attendance and/or cross-examination of the parties in Group 2 will be permitted.

Matters to be included in the hearing of the appeal

The following matters may be addressed by the parties at the hearing, but the scope of evidence and argument must be limited to the specifics pertaining to the grounds of appeal raised in their notices of appeal:

With respect to air emissions, the parties must limit the scope of their submissions to specifics pertaining to fallout of black substance from air emissions. For example, the notice of objection submitted by Nick Zon states that "Their smoke stacks emit a black substance that is layered in the snow."

With respect to the lake level, the Board is only interested in receiving submissions that establish the nexus between the operations of the Power Plant and other environmental changes occurring at the lake. The Board is not concerned with historical levels of the lake, nor about what the level of the lake "should be". The Board will be making a factual determination as to whether or not the terms of the Approval, if they relate to lake levels, impact the integrity of the Wabamun Lake ecosystem, and how they relate to the health of those parties directly affected by the Approval. If Appellants wish to raise the matter of lake levels in any other context than the possible interplay between lake levels and the other environmental impacts which they allege TransAlta causes to the lake, the Appellants must identify with specificity those provisions or bona fide omissions of the Approval that affect lake levels per se.

Timing

The Board notes that there are a number of Appellants who raise similar environmental concerns. The Board strongly encourages these parties to combine their submissions, where possible, to avoid repetitiveness. The Board intends to complete the hearing on October 8th and we believe the evidence and argument can be combined and led through spokespersons where at all possible. Of course, individual factual differences can be stressed in individual written submissions and responded at the hearing as necessary and appropriate.

CONCLUSION

1. All Appellants listed on page 4 of this decision are directly affected by Approval No. 10323-01-00.

2. Pursuant to section 87(4) of the Act, the only matters that may be discussed at the hearing are those on page 9, supra, and limited exclusively to issues raised in these notices of appeal and tied directly to Approval No. 10323-01-00.

3. Pursuant to section 87(5)(ii), primarily for the failure to respond to the Board's request for written submissions, the appeal of Mr. Brad Cowley is dismissed.

4. Written submissions from all parties are due October 2, 1997.

Dated on September 26, 1997, at Edmonton, Alberta.

Dr. William A. Tilleman, Chair
Dr. Ted W. Best
Dr. Steve E. Hrudey

 

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