Appeal No. 97-032

Date of Decision: January 27, 1998

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 appeals filed by Fay Ash with respect to Approval No.'s 18445-01 issued to the City of Calgary, Calgary Parks and Recreation and 47150 issued to the City of Calgary, Golf Course Operations # 136 by the Director, Southern East Slopes and Prairie Regions, Environmental Regulatory Service, Alberta Environmental Protection.

Cite as: Ash v. Director of Southern East Slopes and Prairie Regions, Environmental Regulatory Service, Alberta Environmental Protection. Re: Adjournment and Other Motions

PANEL MEMBERSHIP

Dr. William A. Tilleman, Chair
Dr. Ted W. Best
Mr. Ron V. Peiluck

 

TABLE OF CONTENTS

I. BACKGROUND 1
II. REQUEST FOR AN ADJOURNMENT 1
III. REASONS FOR ADJOURNMENT   2
A. Relevance of the City of Calgary's Integrated Pest Management Proposals 2
B. Canada-Alberta Environmentally Sustainable Agriculture Committee Report 5
C. Document Production 6
IV. RECOMMENDATION REGARDING SETTLEMENT 7

 

I. BACKGROUND

[1] On July 25, 1997, the Director of Southern East Slopes and Prairie Regions, Environmental Regulatory Service, Alberta Environmental Protection (the Director) issued Approval No.'s 18445-01 and 47150 (Approvals) to the City of Calgary, (City) Calgary Parks and Recreation (18445-01) and Golf Course Operations # 136 (47150) for the application of pesticide within 30 horizontal metres of an "open body of water".

[2] On August 11, 1997, Mr. Don Munroe and Ms. Fay Ash (the Appellants), each filed appeals with the Environmental Appeal Board (the Board).

[3] The Board advised the Director and Mr. Todd Reichardt of the City of Calgary, Parks and Recreation, that the Approvals had been appealed, and requested copies of all related correspondence, documents and materials from the Department of Environmental Protection (the Department). On August 29, 1997, the documents received from the Department were forwarded to the Appellants and to the City of Calgary.

[4] A preliminary meeting was held on October 23, 1997, and subsequently the Board issued its Decision on November 13, 1997. The Board decided that Ms. Ash is directly affected by the Director's decision to issue the Approvals and accordingly a hearing was then scheduled for January 26, 1998 in Calgary, Alberta.

II. REQUEST FOR AN ADJOURNMENT

[5] The Board has decided to grant appellant Ms. Fay Ash's request to adjourn the oral hearing currently scheduled for January 26, 1998. As explained in section III below, this decision is based, in part, on the Calgary City Council's upcoming consideration of the City's "Integrated Pest Management" ("IPM") proposals; but adjournment is also warranted by several other outstanding issues which should be resolved before the Board conducts the oral hearing.

III. REASONS FOR ADJOURNMENT

A. Relevance of the City of Calgary's Integrated Pest Management Proposals

[6] Ms. Ash's adjournment request is based, in large part, on the draft nature of the City's current IPM "plan".(1) According to Ms. Ash, that plan could become final if the City Council approves the plan at its January 26, 1998 meeting. In response, the City and the Director, argue that the City's specific IPM plan is not "relevant" to the water quality issue before the Board.

[7] The Board recognizes that there is some merit to the City's and the Director's position. General Condition #1 of the Director's Approval No. 18445-01 requires the City to:

use an Integrated Pest Management approach . . . where non-chemical methods of pest control are evaluated prior to the use of pesticides and are incorporated into the pest control program where appropriate. (Emphasis added).

[8] On its face, this requirement refers only to an abstract IPM "approach"; it does not directly reference the City's draft or final IPM plan. On the other hand, that condition goes on to state that "[p]esticides may be used only where necessary to achieve control of pest species as indicated in the appendix for Special Use Approval No. 003-18445." (Emphasis added).(2) It appears that at least one page of the City's "appendix" regarding "Project B", in turn, makes express reference to "Calgary's proposed IPM policy and Plan. . . ."

[9] The above-quoted portions of the Director's approval thus provide confusing signals as to the extent to which the Director intended to adopt by reference Calgary's specific draft or, perhaps, final IPM plan. The Board notes that this is not a trivial issue--adoption of the plan by reference in the Director's approval may render the plan legally binding and enforceable under the Environmental Protection and Enhancement Act(3), the legislation by which the approvals were issued. From a more immediate standpoint, whether the City's plan is adopted by reference may also bear on whether the Director's approvals are adequate.

[10] The Board does not intend this decision to settle the adoption by reference issue. However, the Board does note at this time that the outcome of this issue could cut several ways. On the one hand, if the Director's approval does not refer to the City's specific draft or final IPM plan, but only to some abstract IPM concept, what is that concept? At a minimum, the concept appears to include the Director's proscriptions, in general condition #1, that "non-chemical methods of pest control [must be] evaluated prior to the use of pesticides and . . . incorporated into the pest control program where appropriate" and that "[p]esticides may be used only where necessary to achieve control of pest species. . . ." But are these general requirements, by themselves, sufficiently precise for purposes of determining what volume of pesticides the City may actually use and for providing a meaningful basis for enforcement?

[11] If not, then the City's development of a specific IPM plan may provide a basis for curing this potential flaw in the Director's approval.

[12] On the other hand, if the Director's approval does refer to the City's then-existing draft plan, was it reasonable for the Director to rely on that plan given that it might ultimately be changed prior to becoming final? The City Council's potential approval of the City's plan could well render this question moot. Of course, under either of the two scenarios outlined above, there is also the question of whether the City's draft or final IPM plan is sufficiently specific to provide a meaningful basis for determining the water quality effects of the City's proposed uses of pesticides and for purposes of enforcement.

[13] The Board presents these hypothetical outcomes of its future considerations simply to show that, however the relevancy issue is ultimately resolved, the City's finalization of its IPM plan could well facilitate a resolution of this appeal whether or not that resolution is in Ms. Ash's favour.(4) The City Council's imminent review of that plan thus warrants a postponement of the oral hearing in this appeal.

[14] The Board has one additional point on this subject. Even if the Board ultimately agrees with the City's and Director's apparent position that the City's draft or final IPM plan is not legally part of the Director's approvals,(5) it is still highly disingenuous for the City and Department to argue that the City's IPM plan is irrelevant to the overall adequacy of those approvals in light of the City's and Director's own statements in the approval and appeal proceedings.(6) The City and Director cannot have it both ways. The Board will entertain a formal motion by either the City or the Director to exclude the City's draft and final IPM plans from these proceedings on the grounds that the Director did not rely on them as support for general condition #1 or for its approvals as a whole. But the Board frankly does not see how that motion can help the City's and Director's cause, because it will cut out what the Director's own "Evaluation and Response" decision document identifies as a major, if not the primary, leg supporting the Director's approvals. The Board further cautions that it may look suspiciously on any post hoc attempt by the Director to discredit that decision document by providing justifications other than those listed in the document for upholding the approvals.

[15] Pursuant to the discussion above, the Board directs the City to file a notice by the close of business on Wednesday, January 28, 1998 indicating whether or not the City Council approved the City's IPM proposal at the Council's January 26, 1998 meeting. The Board also directs the City to promptly provide all participants in this proceeding with a copy of whatever written IPM proposals were approved by the Council or submitted to, but disapproved by, the Council.(7) Following receipt of the City's notice, the Board will decide how to proceed with rescheduling an oral hearing and will move quickly to resolve other outstanding issues in this appeal.

B. Canada-Alberta Environmentally Sustainable Agriculture Committee Report

[16] Ms. Ash also cites the upcoming release of the above-referenced Report as an additional reason for postponing the oral hearing in this appeal. The Director responds that the Report is irrelevant to the water quality issue before the Board. The Board disagrees with the Director's response based on the description of the Report given in the January 19, 1998 letter from Ms. Ash's counsel.

[17] It appears to the Board that, in order to determine the water quality impacts of the City's proposed use of pesticides, the Board must consider evidence regarding (1) the current pollution levels of the Calgary receiving waters; and (2) the individual and cumulative effects of the incremental addition to those current pollution levels resulting from the City's proposal. The Director's characterization of the scope of the Report(8) seems unreasonably narrow but even that narrow scope is relevant to these two issues. Nevertheless, the Board reserves its right to rule on the relevancy and overall admissibility of the Report when it is formally presented to the Board. Toward that end, the Director shall promptly either provide copies of the Report to the Board and other participants in this appeal, or to make the Report available to them for copying at their own expense.

[18] Although the Board is unconvinced by the Director's relevancy argument, the Board is sympathetic to the Director's underlying concern that there will always be additional, "new" information which might relate to the water quality issue before the Board. If the Board attempted to postpone the proceedings in order to have all possible relevant information, the proceedings would never end. This result would not serve anyone's best interest. Thus, the Board does not intend to delay these proceedings until every possible report is produced or, for that matter, until every last detail of the City's IPM policy is perfectly ironed out.

C. Document Production

[19] Ms. Ash lists, as still another reason for delaying the oral hearing, her inability to obtain information from the City regarding the chemical content of its proposed pesticides and the City's IPM plan.(9) The City questions whether Ms. Ash already has some or all of this information and, at any rate, has requested that the Board clarify the City's obligations to produce this information. The Board believes that it is now advisable to resolve this dispute before the oral hearing. The Board thus postpones the hearing, in part, to achieve this resolution.

[20] The Board will issue a further decision shortly on this issue. At this time, the Board cautions the participants that it will not be sympathetic, in the future, to the inability of any participant to obtain information requested at the last minute as grounds for further delay. On the other hand, the Board will also not look kindly in the future on refusals by either the City or the Director to answer reasonable, relevant information requests by the other participants. Promoting public participation in environmental decision-making is an important policy underlying both the Environmental Protection and Enhancement Act, and the City's proposed IPM policy. Given this policy, the City and Provincial governments should be forthcoming in providing relevant information whether or not the Board has adopted a formal discovery process of a judicial nature. Disclosure of relevant materials (that are not privileged) is an obligation that falls on all parties.

[21] Finally, the Board urges the participants to negotiate to resolve past and any future information requests. However, the Board also believes that it is now appropriate to establish deadlines for requesting and providing additional information, for raising any other procedural issues, and to ensure that all witnesses have been identified and exhibits exchanged. The Board will issue a decision shortly with respect to these procedural matters.

IV. RECOMMENDATION REGARDING SETTLEMENT

[22] At a prior stage of this appeal the parties declined to attempt a mediated settlement. After reviewing section 4 of the Written Submission by Mr. David Crowe on behalf of Appellant Ms. Fay Ash, the Board now encourages the parties to reconsider settlement negotiations and renews its offer to provide a mediator for that process. Section 4 of Ms. Ash's submission provides a line-by-line critique of the Approvals and some specificity as to what changes to the Approvals Ms. Ash considers necessary. This analysis greatly clarifies Ms. Ash's positions in this appeal and, thus, may have created an opportunity for negotiation which did not previously exist.

[23] The Board urges the parties to reconsider settlement negotiations for the additional reason that, given the apparently multi-faceted, complex nature of the water quality issues before the Board, it is doubtful that there will be clear winners and losers at the end of this proceeding.

[24] The Board stresses that it takes no position at this time as to whether it agrees with the submission of Ms. Ash or any other participant.

Dated on January 27, 1998, at Edmonton, Alberta.

Dr. William A. Tilleman, Chair
Dr. Ted W. Best
Mr. Ron V. Peiluck


Footnotes

1. For purposes of this decision, the Board's reference to the City's IPM "plan" is intended to include the City's IPM "policy" and IPM "operations manual". The distinctions among the names of these three documents are not yet clear to the Board.

2. Condition #1 of Approval No. 47150 (Shaganapi Golf Course) uses identical language, but refers to the appendix for Special Use Approval No. 001-47150.

3. Environmental Protection and Enhancement Act (S.A. 1992, ch. E-13.3 as amended).

4. Even Ms. Ash seems to recognize this potential consequence. See January 19, 1998, O'Ferrall letter, p. 3 ("An approval which incorporates by reference a document which the approval-holder has not even seen is suspect on the face of it. Now, time may cure that defect.").

5. Once again, the Board is not rendering a final decision on this issue at this time.

6. See October 20, 1997 Graham letter, p. 5 (referring to the appellants' participation on the task force resulting in the City's proposed IPM plan); December 10, 1997 Haufe letter, p.1 (noting the "positive water quality implications resulting from . . . the proposed" IPM); January 13, 1998 Haufe letter, p.1 (requesting permission to present a slide show on the City's IPM plan); and January 19, 1998 Written Submission of the City of Calgary, p. 10 (several references to IPM). The City's and Director's statements in the Director's approval proceedings make the relevancy of the City's IPM plan even more clear. See Director's "Evaluation and Response to Statements of Concern Re: Approval Application 003-18445 (City of Calgary)", p. 1 (justifying the approval primarily by focusing on the City's process for adopting an IPM plan), and pp. 2-7 (referring to the City's IPM plan repeatedly in response to specific statements of concern); see also Department documents subject of appeal Tab 2, titled "Attachment 3 - Pesticide Advisory Task Force Members" (handwritten note from Department reviewer D. Pledger noting that the Calgary Task Force report "... maybe of value in assessing the 'statement of concerns' AEP received re: City's Special Use Approval.").

7. If this document is identical to that which the City included as Tab 11 with the City's January 19, 1998, Written Submission, then the City need not provide the document a second time to the parties to whom the City has already sent its City's Written Submission.

8. January 20, 1998 Graham letter, p. 1 ("statistics on the amount of pesticides agriculture is putting into the water").

9. January 19, 1998 O'Ferrall letter, p. 2. Given its decision to grant Ms. Ash's postponement request for the reasons stated above and in this section, the Board need not address her other reasons for postponement.

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