1997 ABEAB 19 Appeal No. 97-018
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ALBERTA ENVIRONMENTAL APPEAL BOARD
Report and Recommendations
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Date of Report and Recommendations - August 26, 1997
IN THE MATTER OF Sections 84, 85, 87, 91, 92(2), 93, 213(e) and 223 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. Ian Macdonald of AT Plastics Inc. against an administrative penalty issued on May 2, 1997, by the Director of Pollution Control, Alberta Environmental Protection to AT Plastics Inc. for the contravention of Section 213(e) of the Environmental Protection and Enhancement Act.
Cite as: AT Plastics Inc. v. Director of Pollution Control, Alberta Environmental Protection
BACKGROUND
On May 29, 1997, Mr. Ian Macdonald of AT Plastics Inc. (the Appellant) filed a Notice of Appeal dated May 8, 1997, with the Environmental Appeal Board (the Board). The appeal relates to an administrative penalty assessed on May 2, 1997, for the contravention of Section 213(e) of the Environmental Protection and Enhancement Act (the Act).[1] According to the Notice of Administrative Penalty, the contravention was that:
AT Plastics Inc. failed to conduct fish bioassay tests in the manner and frequency as required by their Licence-to-Operate.
In result, AT Plastics Inc., received a preliminary assessment from the Pollution Control Division of Alberta Environmental Protection (the Department) of $28,675.00, and a final assessment of $28,175.00.[2] The Appellant appealed pursuant to Section 84 of the Act for a reduction of the administrative penalty.
The Board wrote to the Department on May 29, 1997, to request copies of all related correspondence, documents and materials. All requested correspondence was received from the Department and a copy was sent to the Appellant on June 13, 1997. Along with the information sent, the Board requested comments to the following procedural issues from the Appellant and the Department:
1. In the event that the Board decides to proceed with this appeal, do you wish to have a mediation meeting under section 11 of the Environmental Appeal Board Regulation? If so, please provide your available dates for July 1997, and what you would contemplate to be the agenda for that meeting?
2. In your opinion, are there any other persons who have an interest in this matter?
On June 20, 1997, the Appellant requested an extension to the filing of written representations and advised the Board that a tentative meeting has been arranged with the Department where discussions would be taking place. The Board granted an extension and requested the parties to provide information on the status of the appeal by July 28, 1997.
The Department advised the Board on July 28, 1997, of the following:
“Further to your letter of June 25, 1997, I am instructed to advise that officials of AT Plastics Inc. (AT) met with officials of Alberta Environmental Protection (AEP) on July 2, 1997. At that meeting, AT provided further information which is being evaluated.
. . .
Tom Dickson, Compliance Analyst for AEP advises that I.S. McDonald [sic] of AT has consented that the matter go over to August 18, 1997 to advise of the current status and to set a date for hearing, if necessary.”
On July 28, 1997, the Appellant advised the Board that a meeting was held with the Pollution Control Division of Alberta Environmental Protection, where additional information and data was submitted. A request was made by the Appellant for a further extension to the filing of written representations to August 18, 1997. An extension was granted and the Board requested the parties to provide information on the status of the appeal by August 18, 1997.
The Department advised the Board on August 18, 1997, of the following:
“I am instructed to advise that this matter appears to be close to resolution and would ask that the appeal be held in abeyance until August 22, 1997.
. . .
Please advise if an extension to August 22, 1997 is acceptable to the Board.”
The Board granted the extension and requested the parties to provide information on the status of the appeal by August 22, 1997.
On August 22, 1997, the parties provided the Board with a resolution of the appeal (see pages 4 to 7 of this report).
RESOLUTION OF APPEAL NO. EAB 97-018 REGARDING NOTICE OF AN ADMINISTRATIVE PENALTY NO. 97/06-PCD-97-10 / AT PLASTICS INC.
The parties to the appeal have agreed to the following terms and conditions:
1. That the Notice of Administrative Penalty be varied:
a) Reducing the quantum of the administrative penalty to $15, 675.00 and
b) Varying the payment date of the administrative penalty to thirty days from the Board’s written decision reflecting this agreed upon resolution.
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“original signed by” AT Plastics Inc.
“original signed by” Fred Schulte Director of Pollution Control
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Date: August 21, 1997
Date: August 22, 1997
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Administrative Penalty File No: 1784
Assessment Form Compliance Analyst: T. Dickson
Party: AT Plastics Inc. Contravention (Section): 213 (e)
DATES(S) OF CONTRAVENTION: July 1995 – March 15. 1997
SUMMARY OF RELEVANT FACTS:
AT Plastics Inc. is a polyethylene-vinyl acetate manufacturing plant located in East Edmonton operating under Clean Water Licence #92-WL—109. The company is required (clause 3.15) to conduct an LC50 before any water is discharged from their facility and failed to do 18 tests from 1992 to December 1996. The company saved $175 on each test by doing the bioassay at full sample strength instead of the required multiple sample strengths for a complete LC50. The Company is also required (clause 9.2) to conduct the fish bioassay tests following specific protocol. The Company has on five occasions (August, October and November 1994 and January and May 1996) added sodium thiosulphate to the bioassay water sample because there was high chlorine levels in the sample. The addition of sodium thiosulphate makes the test meaningless. The company also failed to collect pH samples as required by their approval on January 3& 4 and March 7, 8, 9, 14 & 15, 1997. No explanation was offered for not collecting the required sample. As the root cause of the failure to collect the pH samples was the same failure to conduct the LC50 samples properly (i.e. lack of understanding of the approval clause) these counts were not assessed as separate penalties.
ASSESSED LEVEL
FROM CHART
cl. 3. 15 - $2.500.00 1 count of the 18 will be assessed
Major variation from regulatory requirement as it is an environmental test
Minor potential for adverse effect as the effluent must, by section 3.2 of the approval, not exceed the limits in Table 1 of the approval. Table 1 requires that a sufficient number of fish survive in 100% effluent. Therefore an LC50 of less than 100% would already be a contravention of section 3.2.
cl. 5. 2 - $5000.00 5 counts (Aug, Oct, Nov 1995, Jan & May 1996)
Major variation from regulatory requirement as it is an environmental test
Major potential for adverse effect as this was the test to determine if the effluent was safe to discharge and the addition of sodium thiosulphate made the tests meaningless. Without knowing if the effluent was safe there was a major potential for an adverse effect to occur when it was discharged.
FACTORS TO BE CONSIDERED TO VARY ASSESSMENT:
(a) Importance of compliance with regulatory scheme
(b) The degree of wilfulness or negligence in the contravention
(c) Whether or not there was any mitigation of the consequences of the contravention
(d) Whether or not the person who receives the notice of administrative penalty has a history of non-compliance
(e) Whether or not the person who receives the notice of administrative penalty has derived any economic benefit
from the contravention
(f) Any other factors that, in the opinion of the Director, are relevant
Please turn over
FACTORS APPLICABLE TO THIS CASE:
b) As a result of the investigation it became apparent that the company did not have a clear understanding of their
approval clauses +50
c) The company has drafted procedures to ensure they comply with their approval - NEUTRAL
d) Warning letter in 1993 for exceeding TSS and COD on discharge, failure to report +500
e) Economic benefit – 1 sample @ +175
f) The company cooperated with investigators -500
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NUMBER OF COUNTS IN ASSESSMENT: |
BASE ASSESSMENT |
FACTORS TO VARY ASSESSMENT: |
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1 |
$2,500.00
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5 |
$5000.00 |
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$$1, 175.00 |
TOTAL PRELIMINARY ASSESSMENT: $28, 675.00
MEETING WITH AT PLASTICS APRIL 21, 1997: Fred Schulte, Tom Dickson, Arthur Bollo Kamara and AJ Montpelier met with Ian MacDonald, Russ Johnson and Warren (the union president) at 13:00 hrs at Oxbridge Place. Al presented the facts of the investigation. We were given an update on the Environmental Management plan which was being developed. There was still much work to be done on the document. The company accepted that they had violated their approval. The company’s greatest concern was the effect of the enforcement action on their current action to get money from the capital markets to fund a $140 million expansion and upgrade the Edmonton plant. Tom reviewed how the penalty was calculated.
On May 2nd, 1997, F. J. Schulte considered all of the evidence provided by the investigator and the company. There was no evidence brought forward by the company at the meeting of April 21, 1997. No new information was presented by the company which would lead me to vary the original assessment. The final penalty is only lower because the factors varying the penalty should have been $675.00 not the $1,175.00 as originally assessed.
TOTAL FINAL ASSESSMENT: 28, 175.00
DATE LEVIED: May 2, 1997
DATE PAID:
ASSESSMENT
APPEALED: YES DATE: May 8, 1997
The company did not dispute contraventions only that the assessment should have been a moderate potential for adverse effect not a major potential for adverse effect on the 5 counts for the contravention of cl.9.2 of their approval. The other contravention was not appealed.
July 2, 1997 AT Plastics (AT) (Russ Johnson and Ian Macdonald met with Alberta Environmental Protection (Fred Schulte and Tom Dickson). At that time AT presented their reasons for wanting the penalty assessed as a moderate versus a major potential for adverse effect. They stated that their lab measured chlorine levels before testing and, if present, they added the sodium thiosulphate to eliminate the chlorine effect. The chlorine levels were typically around 1ppm which are found in City water and therefore the eliminated chlorine should not be considered a major potential for adverse effect. AT also stated that the sodium thiosulphate would not effect the major chemicals used at their plant site. AT agreed to send the Director the results of the semi annual open storm water characterization, a list of the major process chemicals used at the plant, storage capacities for these chemicals, Material Safety Data Sheets for these chemicals and a drawing of the surface runoff for the plant site, all of which was forwarded to the Director by July 7, 1997.
AEP reviewed the basis for the appeal and determined that heavy metals are sometimes present in the storm water as was illustrated by the heavy metals values reported previously by AT. These heavy metals could be effected by the addition of sodium thiosulphate and bias a bioassay test. So as a result, AEP concluded that the Company’s assessment that the addition of sodium thiosulphate to the liquid effluent would only effect chlorine was not accurate. However, the effect of heavy metals on the environment would be a chronic nature not a acute effect which suggests a moderate potential for an adverse effect. It was also found that no fish died in the bioassays in question which further supports that the potential for adverse effect was moderate. Bases on these factors the Director decided that the penalty should be assessed as a moderate not a major potential for adverse effect.
August 11, 1997 AT (Russ Johnson and Ian Macdonald) met with AEP (Fred Schulte, Tom Dickson, Al Montpellier, Arthur Bollo-Kamara) to discuss the findings of the Directors review. AT was advised that the Director agreed with their appeal. It was explained that the Directors reasons were different from those submitted by AT but that the end result was the same. The reasons given for the Directors decision are those found in the above discussion.
REASSESSED PENALTY:
1 count @ 2,500.00
5 counts @ 2,500.00
Factors to vary the assessment
$675.00
Total penalty: $15,675.00
DECISION:
PRECEDENT: Viridlan Inc.
RECOMMENDATIONS
The Board recommends that the Minister of Environmental Protection confirm the decision of the Director of Pollution Control in Administrative Penalty No. 97/06-PCD-97-10, subject to all of the conditions of the Resolution contained herein.
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:
• Mr. Ian Macdonald of AT Plastics Inc.
• Mr. Stan Rutwind, Environmental Law Section, Alberta Justice, representing the Director, Pollution Control Division, Alberta Environmental Protection
Dated August 26, 1997, at Edmonton, Alberta.
“original signed by”
Dr. William A. Tilleman, Chair
ORDER
I, Ty Lund, Minister of Environmental Protection:
yes Agree with the Recommendations of the Environmental Appeal Board and order that they be implemented.
Do not agree with the Recommendations of the Environmental Appeal Board and make the alternative Order set out below or attached.
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Dated at Edmonton this __02__ day of __September__ 1997.
“original signed by”
Honourable Ty Lund
Minister of Environmental Protection
Refer to Attachments (only if applicable)