Appeal No. 98-230-D2

Preliminary Meeting: November 10, 1998
Date of Decision: December 8, 1998

 

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. Brian Bildson with respect to Approval No.'s 11929-00-12 and 11933-00-05 issued by the Acting Director of North Eastern Slopes Region, Alberta Environmental Protection to Smoky River Coal Limited.

Cite as: Bildson v. Acting Director of North Eastern Slopes Region #2, Alberta Environmental Protection, re: Smoky River Coal Limited.

 

PRELIMINARY MEETING BEFORE

Dr. William A. Tilleman, Chair
Dr. Steve E. Hrudey
Mr. Ron V. Peiluck

 

APPEARANCES

Appellant: Mr. Brian Bildson

Department: Mr. Grant Sprague, counsel, Alberta Justice, representing Mr. Chris Powter, Alberta Environmental Protection

Other Parties: Mr. Rod Wasylyshyn, counsel, Ogilvie and Company, representing Smoky River Coal Ltd.

Mr. Doug Larder, Alberta Energy and Utilities Board

Mrs. Deana Bildson

TABLE OF CONTENTS

 

BACKGROUND  1
THE BOARD'S ANALYSIS 3

1. Did Mr. Bildson "participat[e]," or have the "opportunity to participate," in the EUB's review of Smoky River Coal's licence application?

5

2. Were Mr. Bildson's concerns "adequately dealt with" by the EUB?

9

     A. Framework for Analysis

9

Which law applies?

10

Are the "public interest" implications of Mr. Bildson's concerns, by themselves, grounds for dismissal under section 87(5)(b)(i)?

10

To what extent should the Board defer in this appeal to the EUB's judgments on the caribou and water quality issues raised by Mr. Bildson?

13

    B. Analysis

15

    C. Conclusion

24
DECISION 26

 

BACKGROUND(1)

[1] This appeal concerns two Approvals, issued by the Acting Director, North Eastern Slopes Region, Alberta Environmental Protection ("the Director" or "AEP"), under section 65 of the Environmental Protection and Enhancement Act ("the Act" or "EPEA"), S.A. 1992, ch. E-13.3. The Approvals allow Smoky River Coal Ltd. ("SRCL") to extend an existing surface coal mine to a new area, known as the "B-2 pit." More specifically, Approval No. 11929-00-12 amends an existing Approval by allowing SRCL to construct and operate the B-2 pit; Approval No. 11933-00-05 amends a second existing Approval concerning wastewater discharges from the mine.

[2] The Director's two Approvals resulted from a "coordinated process" involving the Alberta Energy and Utilities Board ("EUB"). The EUB issued an amended permit for the same project under the Coal Conservation Act, R.S.A. 1980, ch. C-14, based upon its finding that the project was in the "public interest."

[3] The Appellant, Mr. Brian Bildson, indicated in his Notice of Appeal that the grounds for his appeal concern "deficiencies" in the Approvals' mitigation plans for mountain caribou and for water quality.

[4] Shortly after Mr. Bildson filed his appeal, the Director's counsel requested that the Board dismiss the appeal on three distinct grounds. In its October 19, 1998 Decision, the Board denied the Director's dismissal request based on two of the three grounds. In a subsequent letter dated November 12, 1998, the Board announced that it would dismiss the appeal on the third ground raised by the Director. This Decision provides the Board's written reasons for the November 12, 1998, dismissal decision.

[5] The Director's third ground for dismissal is based on section 87(5)(b)(i) of the Act, which requires the Board to dismiss an appeal if, "in the Board's opinion," the appellant "received notice of or participated in or had the opportunity to participate in one or more hearings or reviews under . . . any Act administered by the [EUB] at which all of the matters included in the notice of appeal were adequately dealt with . . . ."(2)

[6] The Board provided Mr. Bildson, SRCL, and the Director, as well as the EUB, with several opportunities to make written and oral, factual and legal presentations on whether the Board should dismiss the appeal under section 87(5)(b)(i). In a letter dated October 9, 1998, the Board stated that it would hold a preliminary meeting on November 10, 1998, to address this matter. The Board's letter also requested that the parties file written submissions by October 30, 1998, containing both their legal and factual arguments. The Board's letter indicated that the parties could then use the November 10, 1998, meeting to orally clarify matters and respond to each others' written submissions. The Board's letter also noted that parties could submit testimonial evidence on factual issues, but should do so in the form of written affidavits which should be filed, together with any other documentary evidence, prior to the date of the preliminary meeting. The Board indicated, however, that a parties' witnesses who submit written testimony should be present at the meeting, or at least be available by teleconference, for questioning by an opposing party or by the Board.

[7] Surprisingly, the parties took relatively little advantage of these opportunities to make written and oral presentations. None of the three parties provided written submissions prior to the November 10, 1998 meeting, although the EUB did file a brief submission. Nor did any party file documentary evidence in advance of the meeting, and only Mr. Bildson filed written testimony prior to the meeting. That testimony was limited to a 2 page statement from two University of Sherbrooke biologists who apparently have been studying wildlife on Caw Ridge, near SRCL's existing mining and proposed project at the B-2 pit.

[8] At the November 10, 1998, preliminary meeting, Mr. Bildson spoke at length about the two environmental concerns raised in his Notice of Appeal, but he provided no documentary support for his concerns. Counsel for both the Director and SRCL made only a brief oral presentation on the merits of the section 87(5)(b)(i) issue. The Director did provide a brief written submission at the meeting and the Board received as exhibits a 6 volume environmental assessment report(3) prepared by the company and the Director's submission to the EUB (a copy of which was already in the Board's record).

[9] Other than his 2 page witness testimony, the only document to which Mr. Bildson referred in his presentation was the company's own EIS. Thus, the documentary record for this Board's decision consists primarily of the EIS, together with the EUB's Decision, the Director's submission to the EUB, and the Director's two Approvals.

THE BOARD'S ANALYSIS

[10] As noted above, EPEA section 87(5)(b)(i) provides that the Board "shall" dismiss an appeal if, "in the Board's opinion," the appellant "received notice of or participated in or had the opportunity to participate in one or more hearings or reviews under . . . any Act administered by the . . . [EUB] at which all of the matters included in the notice of appeal were adequately dealt with. . . ." On its face, this provision requires the Board to make essentially two findings: (1) whether the appellant either "received notice of," or "participated in," or had the "opportunity to participate in" an EUB review of the project at issue; and, if so, (2) whether the EUB's review "adequately dealt with" the matters raised by the appellant before this Board.

[11] The Board will address each of these two questions in turn. However, the Board has several threshold observations about section 87(5)(b)(i). First, that section has both a mandatory and discretionary character. On the one hand, the section's use of the term "shall" leaves little doubt that the Board is required to dismiss an appeal which falls within the parameters of that section.(4) On the other hand, the phrase "in the Board's opinion" makes it clear that the Board has discretion to decide whether a given appeal actually fits within those parameters. The breadth of the Board's discretion is underscored by the lack of clarity in the Legislature's wording of those parameters, and in the potentially competing nature of the objectives underlying that section, as explained in more detail below.

[12] A second general observation is that the Legislature's apparent objectives in adopting section 87(5)(b)(i) are to promote efficiency and fairness-i.e., to prevent this Board from duplicating an EUB review, at least, when the appellant before the EAB had a reasonable chance to participate in the EUB's review.(5) Notably, by requiring dismissal if the appellant chose not to participate in the EUB review but "received notice of" and "had the opportunity to participate in," that review, the Legislature intended to preclude this Board from addressing particular concerns simply because they were never raised before the EUB.(6) Although the Legislature's efficiency and fairness objectives in adopting section 87(5)(b)(i) are pretty clear, at times those objectives could be in competition with each other.

  1. Did Mr. Bildson "participat[e]," or have the "opportunity to participate," in the EUB's review of SRCL's licence application?

 

[13] As explained above, in deciding whether to dismiss this appeal under section 87(5)(b)(i), the Board must first determine whether Mr. Bildson "received notice of," and "participated," or had an "opportunity to participate," in the EUB's review of SRCL's licence application. The terms "participate" and "opportunity" seem relatively simple on their face, but they are somewhat difficult to apply because they do not provide bright line distinctions or clear dichotomies. In reality, there are any number of different levels or kinds of public involvement which a board or agency might provide; this Board must now determine which particular level amounts to "participat[ion]" or an "opportunity to participate," for purposes of section 87(5)(b)(i), and for purposes of this specific appeal.

[14] In applying these terms, the Board must consider the legislation and background governing EUB proceedings in determining what levels of public involvement were actually available to Mr. Bildson. However, the Board will assess whether those levels amounted to a reasonable "opportunity to participate" from the standpoint of the public participation objectives of EPEA. The Board has previously indicated its view that those objectives are ambitious.(7) Ultimately, the underlying question in this appeal is whether Mr. Bildson had a reasonable chance to make his views known to the EUB. As shown below, the Board believes a flexible rather than overly semantic approach is warranted to answer this question and to serve the participation objectives underlying EPEA.

[15] The facts are undisputed that the EUB published a "Notice of Filing" dated June 9, 1997, which briefly described the B-2 project, indicated how the public could obtain copies of the company's licence application, and stated that the EUB and other agencies were now "undertaking review of the application."(8) The EUB's Notice invited "directly affected" members of the public to submit "statements of concern" to the Director of Environmental Protection, but it did not expressly invite the public to participate in any way in the EUB's review, nor explain what opportunities there might be for public participation in that review.(9) Nevertheless, Mr. Bildson and at least six organizations subsequently submitted letters expressing their concerns to the EUB about the B-2 project.(10) In his letter, Mr. Bildson listed nine specific points of concern, but he did not request any further opportunity to participate; in fact, he actually discouraged the EUB from providing any such opportunity by stating that he was "not materially affected" by the proposed project.(11) (It is uncertain whether any of the other letters of concern requested a hearing before the EUB.)

[16] On March 16, 1998, the EUB faxed a letter to Mr. Bildson and other "[i]nterested parties" stating that it considered "[d]ocumentation of the applications" to be "complete for [its] further consideration. . . ." The EUB then stated that, given the project's "scope," and the EUB's belief that none of the interested parties would be "directly and adversely affected" by the project, the EUB had decided to proceed "without a public hearing" and to issue its decision "in due course."(12) The Board does not know whether any of the other parties before the EUB stated whether they were affected, but it is logical to conclude that the EUB steered away from a public hearing vis a vis Bildson because of his written statement that he was not "materially" affected.

[17] The EUB then issued its Decision on April 24, 1998. Although the EUB did not hold a hearing prior to that date, the Decision states that the EUB did "review the filed material" which presumably includes Mr. Bildson's January 22, 1998 letter.(13) However, subsequent statements from the EUB's counsel to this Board suggest that the EUB did not directly consider the substance of the concerns raised by Mr. Bildson in his January 22, 1998 letter.(14)

[18] Although he did not expressly request that the EUB hold a public hearing prior to issuing its April 1998 Decision, on June 1, 1998, Mr. Bildson faxed the EUB a letter requesting that the EUB hold a public hearing to address several "unresolved" issues, including those regarding caribou protection and water quality. Compared to his prior statement that he was not "materially affected" by the project, Mr. Bildson reversed his position by stating in his June 1, 1998 letter that he was in fact "directly affected" by the EUB's Decision and by providing a brief explanation to support this claim.

[19] The EUB appeared to treat Mr. Bildson's hearing request as a request under section 43 of the ERCA. Subparagraph (1) of that section provides that a person "affected" by an EUB Decision issued without a public hearing may, within 30 days after the Decision, "apply" to the EUB for a hearing. ERCA section 43(5) specifically states that the EUB "shall" hold a public hearing "[w]hen an application is made under this section. . . ." The EUB denied Mr. Bildson's hearing request in a June 29, 1998 letter from its Chair. In her letter, the (former) EUB Chair did not discuss whether Mr. Bildson was "affected" by the EUB's Decision, or whether his application was timely, for purposes of determining whether his application was "made under" section 43(1).(15) Rather, the EUB Chair stated that she was denying the request because there had already been "adequate public consultation," a public hearing was "unnecessary," and the EUB had considered "all relevant matters" before issuing its Decision.(16)

[20] Given this procedural history, did Mr. Bildson's involvement and his chances to be involved amount to "participat[ion]" or an "opportunity to participate" in the EUB's review? From one perspective, Mr. Bildson could be said to have "participated" directly in that review, because he submitted written concerns and the EUB accepted those concerns even though it did not actively solicit them from Mr. Bildson or any other member of the public. However, this level of participation is somewhat illusory given the EUB's subsequent admission, in its written submission to this Board, that it never actually directly considered the substance of Mr. Bildson's letter.

[21] Then again, and notwithstanding the EUB's denial, the EUB did consider Mr. Bildson's concerns because the EUB considered a written report provided by the AEP Director. The Director, in turn, no doubt had seen Mr. Bildson's January 22, 1998 letter to the EUB as well as a statement of concern which Mr. Bildson sent directly to the Director's staff and, thus, would have taken Mr. Bildson's concerns into account in reaching its conclusions in its report to the EUB. Thus, to the credit of Alberta Environmental Protection, Mr. Bildson's views were shared with the EUB.

[22] Therefore, the Board concludes that Mr. Bildson either participated or had an opportunity to participate in the EUB review of the application of SRCL regarding the B-2 pit.

2. Were Mr. Bildson's concerns "adequately dealt with" by the EUB?

A. Framework for Analysis

[23] Before determining whether the EUB "adequately dealt with" Mr. Bildson's caribou and water quality concerns, the Board must first address several issues regarding the nature of its analysis. These issues are discussed below.

Which law applies?

[24] In its October 9, 1998, letter establishing the process leading up to this Decision, the Board requested that the parties' written submissions address several matters, including "how the EUB's final decision . . . satisf[ies] the purposes in section 2 of [EPEA] . . . ." In a letter dated October 17, 1998, SRCL questioned (p.2) the relevance of EPEA's purposes, on the ground that the EUB's Decision is "governed" by the Energy Resources Conservation Act and the Coal Conservation Act, not by EPEA. The Board believes that the company's argument misses the point. As the Board explained in its October 23, 1998, response to the company's letter (pp. 2-3), the issue here is not whether the EUB's decision satisfies the EUB's own governing legislation, but whether the EUB "adequately dealt with" Mr. Bildson's concerns, for purposes of section 87(5)(b)(i) of EPEA. The Board's function is not to determine the legality of the EUB's Decision. The Board's function is to determine whether the EUB's Decision is sufficiently "adequate" that, under the logic of section 87(5)(b)(i), it would render duplicative a Board review of the Director's approvals. From this standpoint, the Board must consider the adequacy of the EUB's Decision in terms of EPEA's overall objectives, rather than those in the EUB's governing legislation.

Are the "public interest" implications of Mr. Bildson's concerns, by themselves, grounds for dismissal under section 87(5)(b)(i)?

[25] The Director based his initial dismissal request under section 87(5)(b)(i) on an argument that Mr. Bildson's appeal raised "public interest" considerations which the EUB, not the Director, had jurisdiction to address. The Director characterized Mr. Bildson's appeal as a collateral attack on the EUB's decision, and argued that this attack was improper because the Board lacks appellate jurisdiction over the EUB's decisions.(17) The Board disagrees with the Director's position that the "public interest" implications of Mr. Bildson's appeal, by themselves, are grounds for dismissal under section 87(5)(b)(i).(18) The Board's inquiry under section 87(5)(b)(i) is more detailed than that suggested by the Director.

[26] Mr. Bildson's appeal raises two specific environmental issues-impacts on caribou and water quality-rather than a broad public interest concern. On their face, these kinds of issues are ones which AEP faces routinely and, in fact, are issues on which the AEP Director appeared to take the lead, of necessity, in the "joint" EUB/AEP review of the B-2 project.(19) The Director's argument, that Mr. Bildson's appeal is really a collateral attack on the EUB's Decision fundamentally ignores the Director's important role in assessing the project's potential impacts on caribou and water quality.

[27] This being said, the Board recognizes that even Mr. Bildson's specific issues are inseparable from broader "public interest" concerns. In determining whether to allow the B-2 project to proceed, the government must evaluate not only the magnitude of the risks the project poses to caribou and water quality, but also whether those risks are acceptable, and whether, if the Board were to proceed to public hearing, we could recommend a sound decision to the Minister of Environmental Protection. The latter question requires a balancing of the overall public benefits of development in an area surrounded by significant environmental values. On their face, these considerations are akin to a "public interest" consideration.

[28] The Board does not question or review the EUB's authority to make a "public interest" determination, but the Board also believes that EPEA requires the Director's approval decisions to reflect "public interest" concerns. EPEA's express purpose, as found in section 2, is to "support and promote the protection, enhancement and wise use of the environment while recognizing," among other things: that environmental protection is "essential" to "the integrity of ecosystems and human health and to the well-being of society;" the "need for Alberta's economic growth and prosperity in an environmentally responsible manner;" and "the principle of sustainable development, which ensures that the use of resources and the environment today does not impair prospects for their use by future generations. . . ."(20) These statements provide a Legislative definition or perspective of the "public interest."

[29] Section 65(1) of EPEA authorizes the AEP Director to issue or deny an approval, but provides no technical standard or criterion, or even a broad non-technical standard, for making those approval decisions.(21) Absent any specific approval criteria in section 65, the Director must fall back on the broad "public interest" concepts in deciding whether to issue an approval.(22)

[30] The Board cannot escape concluding that EPEA requires the Director's decision-making to reflect broad "public interest" concerns, at least, as the Legislature defines the "public interest" in EPEA section 2.(23) The Board itself has relied on the "public interest" in its own reviews of the Director's approval decisions.(24)

[31] In sum, the Board does not question the EUB's authority to consider the "public interest" in licencing SRCL's B-2 project. But the EUB's exercise of that authority, by itself, does not require the Board to dismiss Mr. Bildson's appeal if it raises public interest concerns that call into question the Director's own approval decisions.(25)

To what extent should the Board defer in this appeal to the EUB's judgments on the caribou and water quality issues raised by Mr. Bildson?

[32] The "adequately dealt with" standard in section 87(5)(b)(i) clearly requires the Board to consider the merits of the EUB's decision, with respect to the caribou and water quality concerns raised in Mr. Bildson's Notice of Appeal, as well as the environmental component of the EUB's process for reaching its decision.

[33] Nevertheless, the word "adequat[e]" plainly requires the Board to give a reasonable amount of deference to the EUB's judgments on the issues raised in an appellant's Notice of Appeal to this Board. In other words, section 87(5)(b)(i) requires the Board to dismiss an appeal, not if the EUB's decision was the best possible decision or even the decision which the Board would have made if it had stood in the EUB's shoes, but rather if it was "adequat[e]" in light of EPEA's objectives. This deferential standard contrasts with the Board's non-deferential review of the Director's decisions in appeals which are properly before the Board.(26)

[34] Notwithstanding the deferential nature of the word "adequat[e]," the Board believes that little or no deference is warranted in this particular appeal because of the EUB's extensive reliance on the Director's judgments with respect to the caribou and water quality issues. Given this reliance, the EUB's Decision is somewhat like a shell; under the EUB shell lies the Director's judgments, which the Board normally evaluates in a non-deferential fashion. In other words, although the Board is theoretically considering whether the EUB "adequately dealt with" Mr. Bildson's concerns, the Board must as a practical matter evaluate how the Director dealt with those concerns.

[35] Although the Board still must make this evaluation in the context of determining whether it has jurisdiction to proceed with Mr. Bildson's appeal under section 87(5)(b)(i), the Board believes that this evaluation could be more akin to a routine evaluation of a Director's decision on the merits and, thus, should be made according to the Board's non-deferential standard of review in those evaluations. As shown below, the Board believes that the EUB and, indirectly, the Director, "adequately dealt with" Mr. Bildson's concerns even applying a non-deferential standard of review of the EUB and Director's judgments.

B. Analysis

[36] Mr. Bildson's Notice of Appeal, filed on June 9, 1998, stated two grounds for his appeal of the Approvals. Those two grounds are:

[37] Mr. Bildson elaborated these issues during the Board's preliminary meetings as follows:

[38] In August 1997, the EUB received a copy of a letter Mr. Bildson had written to his MLA. This letter referred to a variety of wildlife concerns, including the mountain caribou as "perhaps the most critical concern" and a concern for "another endangered species namely Bull Trout the official fish of Alberta".

[39] On August 27, 1997, SRCL forwarded to Mr. Bildson a copy of the Environmental Impact Statement (EIS) prepared in May of 1997 for the EUB and AEP. This EIS was prepared in response to Terms of Reference finalized by AEP on May 9, 1997. These Terms of Reference called for SRCL to:

[40] The EIS submitted by SRCL in May 1997 devoted 29 pages of the main report and a 47 page appendix to discussing the caribou herd. The discussion described the characteristics of the Redrock-Prairie Creek caribou herd which has been studied in the region of SRCL operations since 1989, particularly with regard to spring and fall migration periods.(27) The EIS devoted another 42 pages discussing existing surface water resources (quantity and quality), potential impacts and measures to mitigate those impacts. This section devoted 15 pages to addressing water quality conditions, including turbidity and another 11 pages on aquatic ecosystem resources, including fish, with an emphasis on bull trout.(28)

[41] When Mr. Bildson wrote to Mr. K. Banister of the EUB on January 22, 1998, Mr. Bildson acknowledged that he had read the EIS (which he also later acknowledged to the Board) and the volume 6 deficiency response (the December 1997 SRCL submission) to the EUB.(29) Mr. Bildson reiterated his major concern over potential negative impacts on caribou and he:

Mr. Bildson also noted that SRCL had experienced problems with the turbidity of the discharge from their settling ponds and that this discharge endangers the bull trout spawning areas of the Kakwa/Copton Creek area because Beaverdam Creek is a tributary of this system.

[42] On February 25, 1998, the EUB wrote to SRCL requesting an update on how SRCL had responded to concerns raised by various groups. The EUB noted that SRCL had met with Mr. Bildson according to their December 1997 deficiency response to the EUB. SRCL replied on March 3, 1998 documenting their meetings and resolutions with various interest groups who had expressed concerns, but no further contact or discussion with Mr. Bildson was mentioned. On April 2, 1998, Mr. Stone (the impact assessment director) provided the EUB with the AEP submission concerning the environmental and natural resource management implications of the SRCL B2 project.(30)

[43] In the April 2, 1998 AEP attached submission to the EUB, the departmental position on wildlife was: "that woodland caribou are the most important wildlife species within the B2 Project area. The woodland caribou herd in the area, which numbers about 350 to 400 animals, is the largest herd of the mountain ecotype of woodland caribou in Alberta and represents 55% of the mountain population (including the National Parks). SRCL's continuing caribou research, which began in 1989, has shown that 65% of this herd stages and crosses Caw Ridge during their spring and fall migrations. The AEP position on caribou concluded with the following statement:

"5. Based on information that has been provided and reviewed, staff will recommend that the Director require SRCL to:

a) implement all aspects of the caribou monitoring and mitigation program described in the application; and

b) given the significance of the mitigation program, make a formal report to AEP on a weekly basis during both spring and fall migrations."(31)

[44] In the April 2, 1998 AEP attached submission to the EUB, the departmental position on fisheries and aquatic resources was that:

"6. Beaverdam Creek provides habitat for several species of fish, including bull trout which have recently been classified as a vulnerable species in Alberta. The loss or degradation of this habitat through sedimentation, excessive release of flocculent or changes in surface water and/or groundwater may have negative longterm effects on fisheries resources. Additional mining activity in the headwaters of Beaverdam Creek increases the potential for adverse effects on fisheries and aquatic resources in the creek."(32)

The submission goes on to state:

"9. With respect to water quality, AEP accepts that settling ponds can effectively control suspended solids levels provided the ponds are properly sized, constructed and operated. Given that the EIA report acknowledges that the 12S-5 pond may be undersized to handle the runoff from both the existing and the proposed B2 development, as well as previous concerns with the maintenance of water quality in Beaverdam Creek, AEP believes the 12S-5 pond should be designed and constructed to handle the runoff from the total disturbance area."(33)

"17. The 12S-5 pond that handles runoff from the current B Pit operation has experienced difficulty in the past in complying with Total Suspended Solids (TSS) limits. The sizing and the operation of the pond to handle the additional disturbance from the B2 pit will be important factors in the maintenance of water quality in Beaverdam Creek. Elevated suspended solids in the receiving stream can affect aquatic resources, fish and fish habitat."(34)

"20. Based on information that has been provided and reviewed, staff will recommend that the Director require SRCL to:

a) design and construct the 12S-5 settling pond to accommodate runoff from the entire disturbance area, including the B2 Pit; and

b) conduct environmental effects monitoring for water quality, aquatic resources and fisheries in Beaverdam Creek and downstream areas that may be affected by mining."(35)

[45] On April 24, 1998, EUB issued its Decision 98-10 in which they acknowledge that concerns were received from several parties including Mr. B. Bildson. The EUB noted that they: "received additional information regarding AEP's views on the environmental and natural resource management implications of the B2 project on 2 April 1998 and has fully considered those views in its decision." The EUB concluded: "Having regard for all the evidence, the Board believes development of the B2 pit is in the public interest. The Board notes that there may be environmental concerns, but believes that, given the relatively small size of the proposed B2 Project development, adverse environmental impacts to the region can be avoided or mitigated."

[46] Notwithstanding the EUB's deference to AEP, the EUB's decision addresses a variety of environmental concerns including wildlife, fisheries and aquatic resources and water quality. Their decision states that the applicants views with respect to wildlife and in particular caribou were:

"On the basis of the occurrence and status of wildlife species within the project area, SRCL selected woodland caribou as the primary management indicator species for detailed impact assessment. The findings of SRCL's multi-year research of the Redrock / Prairie Creek woodland caribou herd provided necessary data for impact assessment. Mitigation identified for implementation with the B2 development included operational controls, deflection fencing, caribou response teams and on-going caribou research."(36)

The EUB's view with respect to wildlife was:

"The Board believes that, within the context of the B2 application, significant impacts to wildlife should not occur. The B2 pit's proximity to current mining activity and the reduced scale of the pit's 'footprint' are mitigating circumstances. The success of SRCL's mitigation plan to relocate migrating caribou away from industrial operations remains to be evaluated through field trials. The Board notes SRCL's commitment to continue monitoring of seasonal caribou movements in the Caw Ridge area as a means to identify the effectiveness of caribou mitigation measures, validate impacts, and develop further operational practices that are compatible with wildlife management objectives. The Board believes that additional impact assessment of the Redrock / Prairie Creek caribou herd is justified for future mine developments that may extend beyond the B2 pit into Caw Ridge."(37)

[47] The EUB decision with regard to fisheries and aquatic resources summarized the view of the applicant as:

"SRCL submitted that impacts to water quality and aquatic organisms from sediment loading and flow alterations of Beaverdam Creek will be acceptable through the use of the existing 12S-5 settling pond and surface water management practices. SRCL submitted that impacts of increased harvests to the sport fishery attributed to improved access would be regulated and enforced by AEP, and therefore, impacts to fish resources from the B2 project would be minimal."(38)

The EUB summarized their views with regard to fisheries and aquatic resources as:

"The Board recognizes the importance of maintaining existing water quality and flow regimes of Beaverdam Creek in order to sustain current populations of aquatic organisms. To this end, the Board supports the need for additional monitoring and impact assessment of Beaverdam Creek by SRCL. The Board concurs with AEP that SRCL's 12S-5 settling pond on Beaverdam Creek should be expanded to accommodate additional surface runoff waters from B2 to provide acceptable protection to aquatic resources."(39)

[48] The EUB decision with regard to water quality summarized the view of the applicant as:

"SRCL stated that surface water quality in Beaverdam Creek would be maintained using existing water management practices, including the 12S-5 settling pond and use of flocculents. SRCL acknowledged that uncertainties exist regarding the capacity of the 12S-5 settling pond to assimilate total suspended sediments from the disturbance areas of B and B2 pits. The company proposed monitoring of Beaverdam Creek stream flows at the time of surface mining to assess the future need for additional settling pond capacity."(40)

The EUB summarized their views with regard to water quality as:

"The Board notes that Beaverdam Creek contains viable fish populations and habitat upstream and downstream of the 12S-5 settling pond. For this reason, the Board supports AEP's position that adverse environmental effects should be avoided. Exceedances of the suspended sediment or total nitrogen concentrations within Beaverdam Creek are of potential concern. The Board believes construction of a settling pond of sufficient capacity to mitigate sediments entering Beaverdam Creek from upstream surface mining of B and B2 pits should address the concern although other viable options can be considered."(41)

[49] Additionally, the Board finds that [Alberta Environment] Approval Amendment No. 11929-00-12 includes several provisions related specifically to protection of the caribou and the fishery.

[50] Relevant definitions are included in s.1 of the Director's approval.(42) Relevant operating conditions are included in s.40.(43) Relevant monitoring and reporting conditions are included in ss. 47-53.(44)

[51] Approval Amendment No. 11933-00-05 includes several provisions related to protection of water quality and the fishery.(45)

[52] During the course of the Board's preliminary meeting, Mr. Bildson indicated that he read the EIS in its entirety; further, he had also focused his attention on the responses to the deficiency reports. Unfortunately for him, he had not focused on the actual provisions relating to the protection of caribou or water quality contained in the approvals--which were the most important issues that he was appealing.(46)

[53] And when asked by the Board how he would rewrite the approvals to better address his concerns about caribou and water quality, Mr. Bildson indicated that he would shut the operations down entirely(47) during the spring and fall migration periods to avoid impacts on the caribou and that he was not sure if anything could be done to adequately reduce the risk to water quality which was posed by the SRCL settling basin discharge.

C. Conclusion

[54] As discussed above, the record clearly shows that the issues which Mr. Bildson raised in his Notice of Appeal--mitigation of impacts on caribou and mitigation for water quality impacts, particularly on bull trout--were addressed in the joint EUB/AEP review process, even if his issues were addressed for the EUB by or through Alberta Environmental Protection.(48)

[55] The level of attention directed to the caribou and water quality issues by the AEP-EUB review of the SRCL application was substantial; clearly reflecting a realization by AEP that these issues deserved serious attention. They do deserve serious attention. The record shows that AEP has recognized that the Redrock-Prairie Creek caribou herd and the bull trout fishery of the Beaverdam-Copton Creek-Kakwa River are extremely important natural resources which must receive a high level of protection. Although Mr. Bildson has performed a valuable public service by reinforcing private concerns for these resources, it is apparent to the Board from the record that AEP will recognize their burden of responsibility for protecting these natural resources, and that AEP appreciates how heavy is that burden of public trust.

[56] The record showed that Mr. Bildson's concerns for the caribou herd and for water quality impacts on bull trout in Beaverdam Creek were consistent throughout his involvement with the review process. Mr. Bildson's presentations on these issues before the Board were personal, sincere and expressed in compelling terms.

[57] The issues raised by Mr. Bildson are valid concerns that should be clearly addressed in managing the environmental risks posed by SRCL. In making a determination of whether these issues "were adequately dealt with" by the EUB review process, the Board has looked at the degree to which these issues were considered in the AEP/EUB joint deliberations and were reflected in the decisions resulting from that review process.

[58] In the particulars of the concerns raised by Mr. Bildson, the environmental protection decisions amount to a difficult balancing of the merits of the project against the environmental risks they pose, because none of the mitigation measures can provide absolute assurances against harm. The difficult decision of approving the SRCL application even with substantial mitigation measures that carry some residual risk of harm to some uniquely valuable natural resources, amounts to a public interest decision which in this case was evaluated and carried for the EUB by the Ministry of Environmental Protection. On the face of it, from the documentary record, the decisions relating to Mr. Bildson's concerns appear to the Board to be consistent with the public interest considerations demanded by EPEA Section 2. Accordingly, the Board does not find a substantive basis to doubt the adequacy of how the EUB review process dealt with Mr. Bildson's stated environmental concerns about caribou and water quality. In the absence of such doubt on this issue, the Board is obliged to dismiss Mr. Bildson's appeal in accordance with section 87(5)(b)(i).

DECISION

[59] For all of the reasons stated above, the Board concludes that Mr. Bildson's appeal should be dismissed under section 87(5)(b)(i) of the Environmental Protection and Enhancement Act.

Dated on December 8, 1998, at Edmonton, Alberta.

Dr. William A. Tilleman

Dr. Steve E. Hrudey

Mr. Ron V. Peiluck

 


Footnotes

1. 1 Paragraphs 1-3 of the Background discussion of this Decision are an abbreviated version of the Background portion of the Board's October 19, 1998 Decision in this same appeal. See Bildson v. Acting Director of North Eastern Slopes Region, Alberta Environmental Protection, re: Smoky River Coal Limited, No. 98-230-D, at 1-3 (pars. 1-5). For brevity, the Environmental Appeal Board (the "Board") refers the reader to that Decision for additional background information.

2. Section 87(5)(b)(i) actually refers to the Energy Resources Conservation Board ("ERCB") rather than the EUB. However, the Alberta Legislature recently reconstituted the ERCB as the EUB. See Alberta Energy and Utilities Board Act, S.A. 1996, c. A-19.5, ss. 3(1)(a) (EUB members shall include the ERCB members), 5(4) ("[A]ny reference in this or any other enactment to the [EU]Board, the ERCB or the P[ublic ]U[tilities ]B[oard] is deemed to be also a reference to a division of the [EU]Board."), and 10(1) (EUB has all the "powers, rights and privileges of the ERCB . . . that are granted or provided for by any enactment or by law."). Thus, the Board will hereinafter refer to the EUB instead of the ERCB, where there is any legislative reference to the ERCB. All references in this Decision to "the Board" or "this Board" will be solely to the Environmental Appeal Board.

3. An environmental assessment report is the equivalent of an environmental impact statement (EIS) and the Board will use the latter acronym to identify that document in the environmental assessment process.

4. The mandatory nature of this provision is indicated, not only by the plain meaning of "shall," but by section 87(5)(a), which lists several circumstances in which the Board "may" dismiss an appeal. The Legislature's use of the different and plainly contrasting words "may" and "shall" in sections 87(5)(a) and (b), respectively, strongly suggests that the Legislature intended those words to be construed according to their plain meaning and, thus, that the Board is required to dismiss an appeal when any of the circumstances in section 87(5)(b) apply.

The Board notes some confusion, however, in reconciling the mandatory nature of the dismissal grounds under section 87(5)(b), and section 87(2)(a). This latter section provides that, in deciding which "matters" to consider in its hearing of an appeal, the Board "may" consider whether any given matter was "the subject of" an EUB review and whether the appellant before the EAB "received notice of and participated in or had the opportunity to participate in the [EUB's] hearing or review. . . ." Thus, the two sections deal with the same subject , but one section does so in mandatory terms and the other in permissive terms. Perhaps because of uncertainty regarding the functional relationship between sections 87(2)(a) and 87(5)(b), the parties have not focused on the former section; the Board will likewise ignore it for purposes of this Decision.

5. This duplication is not obvious at first blush. The EUB is the first decision-maker in matters brought before it, whereas this Board hears appeals from the initial decision-maker under EPEA (although not appeals directly from EUB decisions). See EPEA, Part 3, and Coal Conservation Act, R.S.A. 1980, ch. C-14, ss.10,11. From this perspective, this Board's appellate function (with respect to decisions of the Department of Environmental Protection) does not duplicate the EUB's first-level licencing function. Although the EUB and this Board's reviews are not duplicative from the standpoint of the decision-making hierarchy, they might be duplicative in a functional sense, in cases when two boards conduct roughly similar types of proceedings to determine the facts. Thus, for example, it would be duplicative for this Board to determine certain facts based on expert testimony when the EUB has already had a chance to consider the same factual issues based on similar testimony.

6. An exception to this policy would be if the appellant's concerns are validly based on information that was not available at the time the EUB conducted its review. Chem-Security (Alberta) Ltd. v. Lesser Slave Lake Indian Regional Council. (1997) 56 Alta. L.R. (3d) 153 (affirming Board's refusal to dismiss an appeal under section 87(5)(b), based on new evidence).

7. E.g., Iwaskow v. Director of Air and Water Approvals Division, Alberta Environmental Protection, re: Talisman Energy Inc. (April 30, 1998), 98-001, at 10; Ash and Munroe v. Director of Southern East Slopes and Prairie Regions, Environmental Regulatory Service, Alberta Environmental Protection (November 13, 1997), Appeal No.s 97-031 and 97-032, at 11; Ed Graham et al. v. Director of Chemicals Assessment and Management, Alberta Environmental Protection [1996] 20 C.E.L.R. (N.S.) 287, 295; Dr. Martha Kostuch v. Director, Air and Water Approvals Division, Alberta Environmental Protection [1995] 17 C.E.L.R (N.S.) 246, 258-259.

8. Exhibit 1 - Advertisement dated at Calgary, Alberta on 9 June 1997 - re: Smoky River Coal Limited - Notice of Filing.

9. Ibid.

10. EUB's Decision 98-10, at 1; July 2, 1998 letter from Tania H. Donnelly, EUB Counsel, to the EAB, at 1.

11. January 22, 1998 Bildson letter to K. Banister, EUB Mine Development Group, Applications Coordinator. Prior to receiving this letter, the EUB received a copy of a letter regarding the project which Mr. Bildson had sent to his MLA. See November 6, 1998 Submission of the Alberta Energy and Utilities Board at 2 ("The EUB became aware of Mr. Bildson's interest in the project by way of a letter Mr. Bildson sent to his MLA, which was copied to the EUB by AEP."), and August 13, 1997 letter from Mr. Bildson to the Honourable Walter Paszkowski.

12. March 16, 1998 letter from Michael Bruni, EUB General Counsel, to "Interested Parties List." The EUB's letter did not cite the statutory provision governing its decision as to when to conduct a public hearing, but the EUB's November 6, 1998 Submission to this Board states (p. 2) that the EUB was applying section 29 of the Energy Resources Conservation Act ("ERCA"), RSA 1980, c.E-11. That section allows the ERCB to make a decision without a hearing, but requires the ERCB to provide any person who may be "directly and adversely" affected by the proposed project a chance to submit evidence and written arguments and, in limited circumstances, to cross-examine the applicant.

13. EUB Decision 98-10, at 1.

14. See June 25, 1998 letter from Tania Donnelly, EUB Counsel, to the Board ("Mr. Bildson's objection to those applications was dismissed by the Board on the basis that he was not likely to be directly and adversely affected by them."). In fact, in its November 6, 1998 Submission to the Board, the EUB's counsel stated (p. 3) that the EUB "did not take into account Mr. Bildson's views on these issues in its deliberations except in an indirect way through AEP's 2 April 1998 letter to the EUB. This assumes that AEP took into account Mr. Bildson's concerns in writing its 2 April 1998 letter to the EUB." The Board presumes that the Alberta Environmental Protection Director's staff, at least, saw Mr. Bildson's January 22, 1998 letter, because the Director's counsel included that letter in the stack of documents which counsel provided to the Board as part of the record of the Director's approval decision. Nevertheless, the Board is somewhat surprised that the EUB never bothered to itself consider and respond to the substantive concerns raised in Mr. Bildson's January 22, 1998 letter or, at least, expressly request Alberta Environment to do so, whether or not the EUB believed Mr. Bildson was entitled to additional chances to participate under section 29 of the ERCA. The primary justification for the EUB's position seems to be the disclaimer advanced by Bildson (on January 22, 1998) that he was not materially affected. The EUB's Decision states (pp. 1-2) that SRCL "undertook further discussions" with the interested parties and provided the EUB with a written statement of the "results" of those discussions, but the statement did not mention Mr. Bildson's specific concerns. See par. 42.

15. See Mr. Bildson's June 1, 1998 hearing request, at 2.

16. June 29, 1998 letter from Celine Belanger, former EUB Chair.

17. In its June 30, 1998 letter, the Director stated (p. 1) that:

"[I]t is clear that Mr. Bildson seeks a public interest hearing into the project. . . . Mr. Bildson seems to argue that the development is not in the public interest. . . . [T]he project in question is principally a project governed by the [EUB] pursuant to the Coal Conservation Act. The [EUB] determines whether the project is in the public interest. . . . Mr. Bildson's appeal represents a collateral attack on the decision of the . . . [EUB]. Such an appeal is not within the jurisdiction of the EAB."

The Director made similar arguments throughout its November 10, 1998 written submission. In its written submission (par. 3), the EUB similarly stated that, if Mr. Bildson is questioning whether the project is in the "public interest," the Board should dismiss his appeal. According to the EUB, the Board lacks jurisdiction to determine whether the project is in the "public interest" simply because the Board lacks jurisdiction to hear appeals from the EUB.

18. The Board notes at the outset the irony of the Director's position that Mr. Bildson's appeal is really a collateral attack on the EUB's public interest decision, given that the EUB itself relied primarily on the Director's judgment with respect to the caribou and water quality issues raised expressly in Mr. Bildson's notice of appeal.

19. See EUB's Written Submission, at 2-3 (par. 5) (EUB "did not take into account Mr. Bildson's views . . . except in an indirect way through AEP's 2 April 1998 letter to the EUB.").

20. EPEA section 2(a), (b), and (c).

21. Section 65(2) authorizes the Director to include in an approval any terms the Director considers "appropriate;" this standard is extremely broad on its face.

22. Section 65(4) provides that, in making approval decisions under section 65(1), the Director "shall . . . consider" any applicable EUB decision. The requirement that the Director "consider" an EUB decision cannot reasonably be read to preclude the Director from himself taking the public interest into account in deciding whether to issue or deny an approval under EPEA.

The "Approvals and Registrations Procedure" Regulation provides a long list of specific factors which the Director's review "may address," but makes it clear that this list is not exclusive. AR 113/93, s. 6(2) ("A review may address the following matters, without limitation. . . ." (Emphasis added)). The Regulation also provides that the Director's review must determine whether the proposed project's environmental impacts are "in accordance with the Act." Once again, absent specific approval criteria in section 65, this Regulation requires the Director to base his approval decisions on the broad "public interest" objectives specified in section 2 of the Act.

Also relevant is section 62(1), which authorizes the Minister to order the Director to disapprove a project if the Minister believes that the project is "not in the public interest having regard to the purposes of the Act." Given the lack of any other criterion in section 65 for the Director's own approval decisions, it follows logically from this express reference to the "public interest" that the Director himself should make those decisions based on the "public interest having regard to the purposes of the Act."

23. Although the Director's approval decisions must reflect "public interest" considerations, it may well be possible, and preferable for promoting consistency and objectivity, for the Director to translate those broad "public interest" considerations into generally applicable technical principles which the Director could then use to make individual approval decisions. See Bruce Pardy, "Abstraction, Precedent, and Articulate Consistency: Making Environmental Decisions" (1998) 34 Cal. W. L. Rev. 427.

24. See, e.g., Ash v. Director of Southern East Slope & Prairie Regions, Alberta Environmental Protection. Re: City of Calgary. Appeal No. 97-032, June 8, 1998 Report and Recommendations, at 9 (par. 22) ("[T]he Board believes that it should accept the Director's positions if they best serve the 'public interest' viewed in light of the purposes of the Act. . . .").

25. At some point, the debate about whether the Director can consider "public interest" concerns, and whether EPEA section 2 provides a definition of the "public interest," is one of semantics which need not even be resolved. The point is that the Director must decide whether to issue approvals according to EPEA's purposes, as provided in section 2.

26. Ash, supra note 24, at 9 (par. 22) ("In theory . . . the Board will not defer at all to the Director with respect to either factual or legal matters raised in these appeals."). See also Chem-Security, supra note 7 (Board conducts a de novo review of the Director's Approval Decision).

27. In 1996, the studies were expanded with helicopter tracking and radio-telemetry to document migration routes other than Caw Ridge. In the spring of 1997, an experimental study was initiated to evaluate caribou responses to deflection fencing as a measure to mitigate impacts of the mining operation on caribou migration.

28. AEP conducted a review of the EIS by means of a departmental team of 12 reviewers in consultation with 9 key departmental advisors. Based on this review, AEP provided EUB with a list of supplemental information requests to SRCL on July 10, 1997. These requests for additional information included 9 separate items concerning impacts on caribou and the proposed measures to mitigate those impacts and 6 separate items concerning water quality with an emphasis on total suspended solids and turbidity.

29. He indicated that his concerns "started over a sense of stewardship I feel for the Mountain Caribou" because of the proximity of their winter range to his trapline.

30. In their cover letter, Mr. Stone stated: "If the Board finds that the proposed B2 project is in the public interest, AEP will ensure that the project is environmentally sustainable before it is allowed to proceed. AEP's intentions are set out in the attached submission for the consideration of the EUB....Please note that the designated Directors decide whether and under what terms and conditions approvals are issued. In addition to advice from AEP staff, the Directors consider advice and suggestions from parties who submitted a statement of concern and the EUB decision respecting whether the project is in the public interest. In carrying out this work, we will consult with staff of the EUB in the environmental regulatory approval stage and in follow-up activities. Based on our review of the information now before us on this application, AEP intends to proceed as outlined in the attached submission subject to any re-evaluation that may be necessary having regard to the Board's decision on this matter."

31. Submission of Alberta Environmental Protection (AEP) to the Alberta Energy and Utilities Board (EUB) in Relation to the Smoky River Coal Ltd. (SRCL) B2 Project dated April 2, 1998, para 5.

32. Submission of Alberta Environmental Protection (AEP) to the Alberta Energy and Utilities Board (EUB) in Relation to the Smoky River Coal Ltd. (SRCL) B2 Project dated April 2, 1998, para 6.

33. Submission of Alberta Environmental Protection (AEP) to the Alberta Energy and Utilities Board (EUB) in Relation to the Smoky River Coal Ltd. (SRCL) B2 Project dated April 2, 1998, para 9.

34. Submission of Alberta Environmental Protection (AEP) to the Alberta Energy and Utilities Board (EUB) in Relation to the Smoky River Coal Ltd. (SRCL) B2 Project dated April 2, 1998., para 17.

35. Submission of Alberta Environmental Protection (AEP) to the Alberta Energy and Utilities Board (EUB) in Relation to the Smoky River Coal Ltd. (SRCL) B2 Project dated April 2, 1998, para 20.

36. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 2 & 3, para 8.

37. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 3, para 2.

38. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 3, para 3.

39. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 3, para 4.

40. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 4, para 4.

41. Alberta Energy and Utilities Board Decision 98-10 dated April 24, 1998, p. 4, para 5.

42. "1(m) 'fall migration period' means the time between October 20 and the end of migratory activity;

1(n) 'significant number' means greater than 10 individuals;

1(o) 'spring migration period' means the time period between April 15 and the end of migratory activity." [emphasis added]

43. "40. The approval holder shall implement the following measures to mitigate the effects of the B2 Pit development on caribou movement:

(a) develop rock berms, fencing or use other means to deflect caribou from the active mining area if necessary;

(b) suspend heavy equipment activity if a significant number of caribou are within one kilometre of the active mining area during the spring migration period or the fall migration period;

(c) defer blasting if a significant number of caribou are within two kilometres of the active mining area during spring migration period or fall migration period;

(d) schedule blasting to avoid the spring migration period and the fall migration period; and

(e) implement speed limits on roads and require motorists to yield right-of-way to caribou."

44. These sections state:

"47. The approval holder shall monitor caribou movements across Caw Ridge and the success of the measures taken in 40.

48. At the commencement of the spring migration period (April 15) and the fall migration period (October 20) and every week thereafter to the end of the migration period, the approval holder shall provide a report to Alberta Environmental Protection Wildlife Management staff. The report shall include information about the number of animals, an update of the mitigation measures implemented under 40, and a summary of their success.

49. The approval holder shall submit to the Director, a report for each caribou migration period that summarizes the effects of mining on caribou migration and the effectiveness of the mitigation measures. The Spring Migration Report shall be submitted by August 31, or another date authorized in writing by the Director, and the Fall Migration Report shall be submitted by February 28, or another date as authorized in writing by the Director.

53. The approval holder shall submit for approval by the Director, a proposal for a Fisheries Monitoring Program that is designed to evaluate the effects of mining on the fisheries resource in the Beaverdam Creek, including trends in population abundance, size class distribution, spawning migrations, recruitment, and sedimentation. The proposal shall be submitted by June 30, 1998 or another date as authorized in writing by the Director."

45. For example:

"9.5 The approval holder shall upgrade the 12S-5 settling pond to accommodate the development of the B2 Pit. The upgrade shall be completed and operational by July 31, 1998 or another date as authorized in writing by the Director. The upgrades shall consist of:

(a) at a minimum, a doubling of the pond surface area, or alternatively, provision of a water management plan to reduce peak flows to the 12S-5 settling pond;

(b) commissioning and operation of a flocculant station.

9.6 The approval holder shall submit a proposal to commission and operate the flocculant station. The proposal shall be implemented upon written authorization and as modified by the Director.

9.7 The 12S-5 settling pond shall be approved by a professional engineer.

9.8 The approval holder shall submit to the Director monthly progress reports at the end of each month summarizing the status of the upgrade to the 12S-5 settling pond. The approval holder shall submit as-built drawings to the Director for review, within 60 days of completion of the upgrade to the 12S-5 settling pond.

9.9 The approval holder shall complete an evaluation of the attenuation effect of the rock drain above the 12S-5 pond and how this relates to the operation of the pond to meet approval limits. The evaluation shall be submitted to the Director by July 31, 1998 or another date as authorized in writing by the Director.

4.12(e) The approval holder shall, commencing in the fall of 1998, undertake a biomonitoring program for benthic invertebrates in Beaverdam Creek."

46. On November 10, 1998, a brief adjournment was provided to allow Mr. Bildson an opportunity to focus on the actual provisions of the approvals.

47. The Board will not comment in detail on this response, except to say that matters of closing a coal mine for lengthy periods (such as two seasons per year) would clearly attract public interest concerns of the EUB.

48. Mr. Bildson's concerns were:

  • included in the Terms of Reference for the EIS,
  • the subject of large sections of the EIS submitted by SRCL,
  • the subject of questions by AEP in their deficiency statements on the EIS,
  • addressed in detail by AEP in its review of the EIS for the AEP submission to the EUB,
  • the subject of specific recommendations for inclusion in the AEP approvals which were brought to the attention of the EUB for the purposes of making their public interest determination which necessarily included consideration of the acceptability of environmental protection measures,
  • addressed in the EUB decision of April 24 which acknowledged input from Mr. Bildson,
  • the subject of very specific conditions of the operating approvals issued by AEP following the public interest determination made by the EUB.

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