Appeals

Decision Information

Blatter v. Director, Action on Waste Division, Alberta Environmental Protection

Collection	Appeals
Date	1995-03-24
Neutral citation	1995 ABEAB 2
Environment Decision Nos.	EPEA Application (Refusal)
Appeal Nos.	94-013
EAB Board Member	Dr. William A. Tilleman; David H. Marko; Joan C. Copp
EAB Decision Type	Report and Recommendations
Legislation	EPEA

Decision Content

Zone de Texte: IN THE MATTER OF an appeal filed by Douglas Blatter with respect to the refusal by Bruce W. Taylor, Director, Action on Waste Division, Alberta Environmental Protection of his application to operate a beverage container depot in Warner, Alberta. Zone de Texte: Barons-Eureka-Warner Health Unit, represented by Blake Gruszie Crossroads Container Depot, Milk River, represented by John Dobrocane Alberta Bottle Depot Association, represented by Barry Reid

Zone de Texte: Alberta

Zone de Texte: By letter of September 29, 1994, Dr. Bruce W. Taylor, Director of the Action on Waste Division (the 'Director") advised the Appellant that his "...application cannot be considered for approval [because as] stated in [their] guidelines for rural depots, a new operation must be 24 km away from an existing depot."

Zone de Texte: President of the Alberta Bottle Depot Association, and Mr. Blake Gruszie, Public Health Inspector with the Barons-Eureka-Warner Health Unit. It granted party status to all three applicants for the purpose of participation in the hearing, which the Board decided would be held at Warner on January 31, 1995.

Zone de Texte: The amendments made in January 1989 broadened the legal definition of a "beverage" to include such additional goods as carbonated and/or flavoured waters, fruit and vegetable juices and prepared teas. As a result, the only products not covered were milk, domestically brewed beer and products sold in drinking boxes (i.e. Tetra Brik). Zone de Texte: Manufacturers are required to pick up their containers from every depot in Alberta. In the case of most non-refillables, the manufacturers have contracted with a private company whose sole business is to pick up and dispose of these containers, most often by recycling them.

Zone de Texte: A collection system involving the establishment of depots throughout the province is clearly a regulatory requirement.' A deposit is paid by the consumer at the time of purchase, and it is refunded by the depot operator when the consumer returns the container to a depot. Zone de Texte: Manufacturers provide a system of collection through an agent, hired by the Alberta Beverage Container Recycling Corporation. The manufacturers reimburse the depots for the deposits, plus commissions for handling the containers. Zone de Texte: The original legislation, enacted in 1972 as an anti-littering law, has apparently been quite successful in reducing this type of waste. Guidelines with respect to depots were therefore established because this business was originally viewed as being too financially risky by potential depot operators. Zone de Texte: establish guidelines governing the operation of depots, including but not limited to the general operation and administration of depots including the hours that they must remain open to receive empty containers;

Zone de Texte: Is it appropriate for the Director to use the 24 kilometre limit between rural depots within the "Standards for Rural Depots" as the only basis for refusal of new container depots, having regard for the purposes of the Act and the corresponding regulation? Zone de Texte: Container costs by the Alberta Beverage Container Recycling Corporation would not be increased substantially by a depot in Warner because his store is located on an established pick-up route (highway 2). Zone de Texte: Income generated from the proposed Warner depot is not a motivating factor. The depot would be there to provide a much needed service in the area, and it would operate as an extension of a business already in operation.' The Appellant's employees could serve both businesses as needed, ensuring proper service to clients.

Zone de Texte: Warner houses the County offices and the Health Unit; therefore, outside residents doing business in Warner will automatically be drawn to the new depot. Zone de Texte: Finally, an additional depot in Warner would significantly augment the recycling efforts for his community. Zone de Texte: River out of business, or take away its business. He simply wanted to promote Warner's recycling initiative. Currently, Warner has established recycling bins for plastic, paper and glass -- directly across the street from the Appellant's grocery store. Zone de Texte: he received support from the Mayor. People are currently dropping off bags of cans at the Appellant's store. And, when he conducted an informal survey of twenty Warner residents, he found that only one resident took cans and bottles to a depot in Lethbridge, while the other

Zone de Texte: Mr. Gruszie stated that recycling aluminum and bi-metal cans use 95% less energy than the manufacture of raw materials. Further, depositing bottle containers in the garbage reduces the life expectancy of costly landfills. At present, the landfill in Warner is full. Zone de Texte: According to the Director, the legislation, regulations and guidelines were put in place after many years of experience since 1972. Extensive consultation with manufacturers, the depot operators and public has occurred. This has resulted in an efficient recycling system and a high rate of return of containers.

Zone de Texte: I asked Arthur to check the distance between Warner and Milk River the next time he was in the area. In the meantime, we received an application from Mr. Blatter. The original submission was incomplete so I sent him a letter requesting additional information. On September 27, we received further information on this application. The application is still incomplete. Zone de Texte: On September 28, Arthur submitted his recommendation including his findings regarding the distance between the two towns. The end result is a recommendation to reject this application based on the fact that the proposed location is within 24 km of an existing depot." (Original emphasis) Zone de Texte: This letter was accepted and approved by Jean-Eve Mark, who is the Head of the Beverage Container Section of the Material Management Branch and also a Director's witness at the hearing.

Zone de Texte: Mr. Timothy Marr, President of Alberta Bottle Depot Association (the "Association") and owner of two depots in Edmonton, stated that he believed the Appellant could obtain the returns listed in his application, but only if he marketed aggressively. He also stated that the Milk River depot's annual gross was $19,000 which would be reduced by about $9,500 if Warner obtained a depot.

Zone de Texte: The Appellant has failed to provide persuasive evidence to support his appeal,' although the Board finds persuasive, the arguments made by the Appellant and Mr. Gruszie regarding the negative environmental impact from the accumulation of containers in landfills Zone de Texte: In cases in which the Board accepts evidence, any party offering such evidence shall have the burden of introducing appropriate evidence to support its position. Where there is conflicting evidence, the Board will decide which evidence to accept and will generally act on the preponderance of the evidence.

Zone de Texte: The Board believes Mr. Dobrocane's evidence, that his depot barely had sufficient volume in the past four years to exceed his break-even point. The Board believes also that he would lose a considerable amount of his business to the proposed depot, as many Warner residents do patronize his operation. Zone de Texte: The Board finds that the only criteria used by the Director in rejecting Mr. Blatter's application was the 24 kilometre rule; Ms. Mark used this rule as an "on/off switch" and the Board believes nothing else (such as the number of people served, recycling goals, or the landfill situation) triggered the Director's decision to reject the application.

Zone de Texte: the protection of the environment is essential to the integrity of ecosystems and human health and to the well-being of society; Zone de Texte: the need for Alberta's economic growth and prosperity in an environmentally responsible manner, and the need to integrate environmental protection and economic decisions in the earliest stages of planning;... Zone de Texte: the shared responsibility of all Alberta citizens for ensuring the protection, enhancement and wise use of the environment through individual actions.

Zone de Texte: container market in which the department is the regulator, but this does not mean that the Director can single out any particular rule or guideline if the result or effect is one that does not achieve all of the purposes of the Act. Zone de Texte: By contrast, section (2) (b) relates to economic concerns. With respect to this appeal, the economic concern is that the recycling system must be economically viable for all of the persons or organizations involved in it and served by it. Zone de Texte: The Minister shall, in recognition of the integral relationship between human health and the environment, co-operate with and assist the Minister ofHealth in promoting human health through environmental protection.

Zone de Texte: A fixed, inflexible guideline cannot facilitate each of those concerns simultaneously. Thus, the Director's decision must reveal how he exercised his discretion in each case in a way that takes those competing goals into account.

Zone de Texte: Other factors are the population base, the road configuration, demographics, whether or not there are other attractive government or commerce features to a village or town (a county seat provides both); seasonal variation in population; and the recycling wishes and business direction provided by the elected leaders for their constituents. Zone de Texte: hi the Board's opinion, the Director must exercise his discretion in light of all of those competing purposes of the Act. Each individual application for a bottle depot must be considered taking all factors into account, including, but not limited to, whether there is another bottle depot within 24 kilometres.

Zone de Texte: The Board recommends that the Director be instructed to reconsider the decision-making process for dealing with applications for beverage container depot approvals and to exercise his discretion taking into account appropriate guidelines and also individual factors relevant to the competing purposes of the Act.