Appeal No. 98-238

 

Date of Report and Recommendations - January 28, 1999

 

IN THE MATTER OF Sections 84, 85, 87, 92 & 93 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. Kenneth Lutes on behalf of Mr. Norman Zeer with respect to Approval No. 49121-00-00 issued to the County of Newell No. 4, by Mr. Peter Watson, Director, Bow Region, Alberta Environmental Protection, on June 24, 1998.

Cite as: Zeer v. Director, Bow Region, Alberta Environmental Protection, re: County of Newell No. 4.

TABLE OF CONTENTS

BACKGROUND 1
THE MEDIATION MEETING 3
RESOLUTION AGREEMENT 6
RECOMMENDATIONS 8
ORDER  9

 

BACKGROUND

[1] On June 24, 1998, Mr. Peter Watson, Director, Bow Region, Alberta Environmental Protection (the Department), issued Approval No. 49121-00-00 to the County of Newell No. 4 (Approval Holder) for the opening up, operation and reclamation of a sand and gravel pit on SE of 7-22-12-W4M.

[2] On July 17, 1998, the Environmental Appeal Board (Board) received a Notice of Appeal from Mr. Kenneth Lutes of Lutes and Bell, on behalf of Mr. Norman Zeer (the Appellant), advising that Mr. Zeer objected to the issuance of Approval No. 49121-00-00.

[3] There were numerous grounds for the appeal.(1)

[4] The Board wrote to Mr. Lutes on July 20, 1998, acknowledging receipt of the Notice of Appeal, and by copy of that letter, requested the Department of Environmental Protection (the Department) provide copies of all related correspondence, documents and materials related to this matter. The Board also advised Mr. Alan Martens, County of Newell No.4, on this same date that an appeal had been filed and provided them with a copy of Mr. Zeer's appeal.

[5] According to standard practice, on July 20, 1998 the Board wrote to the Natural Resources Conservation Board (NRCB) and the Alberta Energy and Utilities Board (AEUB) asking whether this matter had been the subject of a hearing or review under their respective Boards' legislation. Replies were subsequently received from both the NRCB and the AEUB stating they did not hold any hearing or review under their respective legislation.

[6] On July 30, 1998, copies of the documents requested by the Board were provided by the Department and a copy was forwarded to all parties on August 11, 1998. In the Board's letter of August 11, 1998, addressed to Mr. Lutes and copied to the parties, the Board asked the Appellant whether he wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation(2), and if there were any other persons who might have an interest in the appeal. On this same date, the Board wrote to the Department and the Approval Holder asking for comments on participating in a mediation meeting and asking whether there were any other persons who may have an interest in the appeal.

[7] On August 18, 1998 a letter was received from the Department advising that the Department, the County and the Appellant would be meeting onsite on August 24, 1998, to attempt to resolve the matter between them.

[8] The Board wrote to all parties on August 26, 1998, advising that a mediation meeting would be held on September 28, 1998 near Duchess, Alberta. Subsequently, a Notice of Mediation and Public Hearing advertisement was placed in the Brooks Bulletin on September 2, 1998.

THE MEDIATION MEETING

[9] The Board conducted a mediation meeting near Duchess, Alberta on September 28, 1998 with Mr. Ron Peiluck as the presiding Board member.

[10] According to the Board's standard practice, the Board called the mediation meeting in an attempt to mediate or facilitate through a settlement conference the resolution of this appeal; or failing that, to structure procedural arrangements for the oral hearing. The Board invited representatives from each party to participate in the mediation meeting.

[11] In conducting the mediation meeting, Mr. Peiluck reviewed the appeal and mediation process and explained the purpose of the mediation meeting. He then circulated copies of the "Participants' Agreement to Mediate". All parties signed the Agreement and discussions ensued.

[12] No final resolution was reached at the end of meeting, however, the parties agreed to review the details that had been presented that day.

[13] Following, on September 29, 1998 the Board wrote to all parties advising:

"This letter will confirm that further to the meeting held on September 28, 1998, participants of the County of Newell No. 4 will take forth the various options discussed to County Council.

Following, the County of Newell No. 4 will provide a written status report to the Board on October 13, 1998, with a copy to all parties to this appeal, outlining their discussions with the County Council. It is then requested that the Department and the Appellant advise by October 20, 1998 whether or not they wish to hold another mediation meeting; or if no resolution is possible to proceed to a hearing."

[14] On October 20, 1998, the Board forwarded a letter to all parties from the Department, dated October 19, 1998 advising that the Department had circulated proposed mediation terms to the parties as of that date. The Department further requested an extension to October 27, 1998, so that all parties would have ample time to review the proposed clauses put forward by the Department, before the parties were to indicate if they wanted another mediation meeting or wanted to proceed to a full merits hearing.

[15] In a letter addressed to the Board dated October 27, 1998 the Department advised that there had been no resolution of the matter.

[16] On November 2, 1998, the Appellant stated, "With regard to this matter, we would suggest that an appeal date not be set until we have had an opportunity to further discuss this matter between ourselves and the representative of the County with the view to reaching an agreement acceptable to all parties. Accordingly, we would suggest that this matter be held in abeyance for a further period of two to three weeks in order to see whether or not an agreement can be completed."

[17] The Board wrote to all parties on December 2, 1998, advising that through consultation with the parties, a hearing date had been set for Friday, February 12, 1999. A Notice of Public Hearing advertisement was placed in the Calgary Sun on Thursday, December 10, 1998 and the Brooks Bulletin on Wednesday, December 16, 1998 outlining details of the hearing.

[18] On January 18, 1999, the Board wrote to all parties inquiring:

"Further to discussions with Mr. Scott and Mr. Lutes during this past week, it was my understanding that further developments have occurred regarding the potential resolution of Mr. Zeer's appeal. Could the parties please provide the Board with the status of this appeal, in writing, by the close of business on Tuesday, January 19, 1999."

[19] On January 19, 1999 the Board received a letter from the Appellant stating:

"Negotiations have taken place, and we prepared a draft Mediation Agreement and sent it to Mr. Scott, solicitor for the County.

Mr. Scott advised that the Agreement that we sent was amenable to their client, subject to certain revisions. My client has since agreed to make the revisions requested by Mr. Scott, and in fact, as of yesterday my client has signed the proposed Mediation Agreement with the revisions requested.

. . ."

[20] A further letter was received from the Appellant on January 21, 1999, stating:

"Further to our telephone conversation of this morning, we have now received three fully executed copies of the Mediation Agreement duly signed by Mr. Zeer and the County of Newell No. 4, and we enclose all three copies with the request that you have the Director endorse his approval on the Agreement and thereafter return to us by courier all three copies so that we can submit them to the Environmental Appeal Board for approval by the Minister, or to speed the process up, perhaps you could send them directly to the Environmental Appeal Board for approval by the Minister.

We confirm, on behalf of our client, that subject to the approval of the Director and the Minister of the enclosed Mediation Agreement, our client withdraws his appeal to the Alberta Environmental Appeal Board."

[21] The resolution is found on pages 6 and 7 of this Report.

 

RECOMMENDATIONS

[23] The Board recommends that the Minister of Environmental Protection approve the conditions of the Resolution contained herein.

[24] 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 January 28, 1999, at Edmonton, Alberta.

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 03 day of February 1999.

Honourable Ty Lund
Minister of Environmental Protection



Footnotes

 

1. As stated by the Appellant:

"The crushing of gravel on this site will result in excessive dust pollution as well as noise pollution and adversely affect my lands and home, as well as adversely affect the river valley.

1. I and my wife, Joy Zeer, are the owners of the N 1/2 7-22-12 W4th, lying north of the Red Deer River.

2. I and my wife are the owners and reside on the NW 1/4 8-22-12 W4th, lying north of the Red Deer River.

3. Our home and yard site are just across the river valley from the proposed pit and within a three-quarter mile distance.

4. In the past a gravel pit has operated immediately to the east of the proposed pit. On numerous occasions in the past, the crushing of gravel on the said pit resulted in excessive dust pollution of the river valley as well as our pasture lands and our home and yard area.

5. The excessive dust created by gravel crushing has an adverse effect on our enjoyment of our home, as well as an adverse effect of our health and an adverse effect on our pasture lands and livestock grazing thereon.

6. In addition, the crushing of gravel creates excessive noise pollution which is a nuisance at our home.

7. The crushing of gravel also creates pollution of the river valley and Dinosaur Provincial Park is only 1 mile distant from the proposed project.

8. In the past, the crushing of gravel has caused dust to hang thick and heavy most of the time when crushing was ongoing.

9. A great deal of dust collects on my hay and pasture land and creates problems for me and my family when riding and haying and living in this environment, as well as creating problems for livestock.

10. There is nothing in the approval that addresses dust pollution that will result from the crushing operation.

11. There is nothing in the approval that addresses noise pollution that will result from the crushing operation.

12. The crushing operation will result in the release into the environment of a substance, namely dust and sound, contrary to the provisions of Section 92(2) of the Environmental Protection and Enhancement Act.

13. If gravel crushing is to be allowed on the proposed site I request that conditions be imposed that will have the effect of greatly reducing or eliminating dust pollution and noise pollution during crushing operations."

2. AR 114/93 (hereinafter "the regulations").

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