Appeal No. 99-017 & 018

Date of Discontinuance of Proceedings - April 14, 2000

 

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 appeals filed by Messrs. Dan Keating and Ron Milne with respect to Approval 144-01-00 and Amending Approval 144-01-01 issued to ADM Agri-Industries Ltd. by the Director, Parkland Region, Alberta Environment.

Cite as: Keating and Milne v. Director, Parkland Region, Alberta Environment re: ADM Agri-Industries Ltd.

 

TABLE OF CONTENTS

BACKGROUND 1
DECISION 6

 

BACKGROUND

[1] On March 29, 1999, the Director, Parkland Region, Alberta Environment (Department), issued Approval 144-01-00 to ADM Agri-Industries Ltd. (Approval Holder) for the construction, operation and reclamation of an oil seed processing plant in the City of Lloydminster. On December 10, 1999, the same Director issued Amending Approval 144-01-01 to ADM Agri-Industries Ltd. authorizing the expansion of the existing oilseed processing plant in Lloydminster. The Board received 115 Notices of Appeal with respect to Approval 144-01-00 and two Notices of Appeal with respect to Amending Approval 144-01-01.

[2] On April 15, 1999, the Environmental Appeal Board (Board) received two Notices of Appeal dated April 10, 1999, from Messrs. Dan Keating and Ron Milne (Appellants), objecting to the March 31, 2009, expiry date of Approval 144-01-00.

[3] On April 15, 1999, the Board acknowledged receipt of the two Notices of Appeal from Messrs. Keating and Milne, and at that time requested a copy of all correspondence, documents, and materials relative to the appeals from the Department. On the same date, the Board also wrote to ADM Agri-Industries Ltd. advising them of Messrs. Keating and Milne's appeals and provided them with a copy of the Notices of Appeal.

[4] According to standard practice, on April 15, 1999, 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 the NRCB and the AEUB stating that they did not hold any hearing or review under their respective legislation.

[5] On July 7, 1999, copies of the documents requested by the Board were provided by the Department and copies were forwarded to the Approval Holder and all the Appellants in a letter dated July 8, 1999. In these same letters to the parties, the Board asked the parties if they wished to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation(1) and if there were any other persons who may have an interest in the appeals.

[6] On July 12, 1999, the Board received a letter from the Department indicating that they were prepared to participate in a mediation. On July 15, 1999, the Board received a letter from Mr. Roy A. Haugen, Director and Acting Secretary of the Concerned Citizens of West Central Lloydminster, advising that the Appellants, including Messrs. Keating and Milne would be available to attend a mediation. On July 15, 1999, the Approval Holder responded to the Board's letter of July 8, 1999, advising that they too would be available to participate in a mediation. The Board subsequently advised the parties in a letter dated July 22, 1999, that a mediation meeting/settlement conference had been set for August 26, 1999, in Lloydminster. Following the mediation meeting on August 26, 1999, a second mediation meeting was scheduled for September 28, 1999, in Lloydminster.

[7] On September 23, 1999, the Board received a letter from the Approval Holder requesting that the mediation scheduled for September 28, 1999, be re-scheduled to October 14 or 19, 1999, as they were assembling a draft resolution document for discussion with the Appellants. After consultation with the parties, the Board scheduled the second mediation meeting for November 4, 1999.

[8] Following the mediation meeting on November 4, 1999, the Board wrote to the parties in a letter dated November 5, 1999. The letter stated:

"As discussed at the mediation meeting, Mr. McInnes will continue to draft an agreement and forward to this office on November 15, 1999. In turn it will be distributed to all other parties for their review and asks that you provide your written comments soon thereafter to this office.

As also discussed, a third mediation meeting will be scheduled for November 30, 1999 upon confirmation from all parties that this date is agreeable. ..."

[9] On November 17, 1999, the Board received a letter from the Approval Holder stating:

"As discussed this morning, other commitments and a need for review of the concepts presented at the November 4th mediation meeting has delayed my consolidation of the issues into a discussion document. I hope to have a document available by next Wednesday, November 24, 1999. I apologize for the extra time requested."

[10] Mr. Haugen wrote to the Board on November 18, 1999, in a letter stating:

"On behalf of the 110 appellants that I represent I wish to thank the Mediator, Dr. John Ogilvie for his professional approach and effort in trying to arrive at a solution by mediation.

If a solution is not realized, it will not be with any fault to Dr. Ogilvie.

We, however, are most concerned with the time that has been taken up with the mediation process.

We now ask that the earliest possible date/dates be set for the Appeal Hearing."

[11] On November 19, 1999, the Board received the draft resolution document from the Approval Holder and distributed to the other parties to the appeals.

[12] The Appellants, including Messrs. Keating and Milne, wrote to the Board on November 22, 1999, in a letter stating:

"We appreciate and are thankful the effort and work that Mr. McInnes and others have put into the preparation of the "discussion document."

Further to our letter of November 18, 1999, in which we asked that the earliest date/dates be set for the appeal hearing. We believe that sufficient mediation time has been allowed to all parties.

The "discussion document" does not meet with our bottom line requirements for us to withdraw our "Notices of Appeal."

We do not believe that a mediation meeting on November 30, would result in an agreement and may not be necessary. ..."

[13] The Board wrote to all parties to the appeals on November 23, 1999, stating the following:

"Further to our conversation with Mr. Roy Haugen, the Board requests the parties confirm that the mediation meeting scheduled for November 30, 1999, will proceed. The Board also requests that the parties provide their available dates for January 2000, for an appeal hearing in this matter by November 25, 1999."

[14] The Department replied to the Board on November 25, 1999, suggesting that unless there was some indication from the parties that a resolution was possible, it may be more appropriate to proceed with the appeal process. The Department also suggested, if the parties were in agreement, it may be more appropriate to schedule a preliminary meeting to determine the issues for the appeal hearing and to discuss any necessary procedural issues.

[15] The Approval Holder responded to the Board in a letter dated November 26, 1999, advising in their view a further mediation meeting would not be successful, and suggested steps be taken to proceed with the appeal. They also suggested that a preliminary meeting would be useful in order to determine the issues and to review any other matters which may be deemed necessary.

[16] The Board informed the parties in a letter dated November 26, 1999, that the mediation meeting set for November 30, 1999, would be cancelled as the Board did not have consent from all parties to proceed.

[17] On November 29, 1999, the Board received a letter from Mr. Haugen stating that Mr. Ron Girvitz would now be representing all the Appellants that Mr. Haugen represented as well as Mr. Haugen.

[18] The Board received a letter from Mr. Keating on November 30, 1999, stating that Mr. Roy Haugen would now be representing him.

[19] On January 4, 2000, the Board scheduled a preliminary meeting in this matter for January 31, 2000, in Calgary, and at the same time scheduled an appeal hearing in Lloydminster for April 25 - 28, 2000.

[20] On January 12, 2000, the Board received Notices of Appeal from Mr. Joe and Ms. Patricia Rooks and from Mr. Roy Haugen on behalf of the Concerned Citizens of West Central Lloydminster, with respect to Amending Approval 144-01-01.

[21] The preliminary meeting took place as scheduled on January 31, 2000, in Calgary. Following the preliminary meeting on January 31, 2000, the Board issued a decision dated March 1, 2000. Included in this decision, the Board wrote that it would consolidate the appeals of Approval 144-01-00 and Amending Approval 144-01-01.

[22] The Board received a letter from Mr. Haugen, on behalf of the Concerned Citizens of West Central Lloydminster, and Messrs. Keating and Milne, dated March 4, 2000, requesting interim costs in order for their lawyer, Mr. Girvitz, to do the necessary research and attend the hearing at Lloydminster. By letter dated March 20, 2000, the Board declined the Appellants' application for interim costs.

[23] On April 10, 2000, the Board received a letter from Mr. Keating stating:

"Effective April 5, 2000 I withdraw my "Notice of Appeal" to Approval 144-01-00 and 144-01-01 for personal and work related reasons."

On the same day, the Board also received a letter from Mr. Milne stating:

"I have moved from the area of Lloydminster that is affected by the emissions from the canola plant so I wish to withdraw my Notice of Appeal."

 

DECISION

[24] Pursuant to Section 87(7) of the Environmental Protection and Enhancement Act, and based on Mr. Keating's letter of April 5, 2000, and Mr. Milne's letter of April 10, 2000, the Board hereby discontinues its proceedings in Appeal No's. 99-017 and 99-018 respectively, and will be closing its files.

Dated April 14, 2000, at Edmonton, Alberta.

Dr. William A. Tilleman, Q.C.


FOOTNOTES

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

 

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