2006 ABEAB 26                                                                      Appeal No. 05-057-064, 067-069-R

ALBERTA ENVIRONMENTAL APPEALS BOARD   Report and Recommendations

Date of Report and Recommendations – September 29, 2006

 

 

 

IN THE MATTER OF sections 91, 92, and 95 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12; and section 115 of the Water Act, R.S.A. 2000, c. W-3;

 

 

-and-

 

 

IN THE MATTER OF appeals filed by the Future of Blackfoot and Area Environmental Association, Lori Fradette, Gerry Fradette, Dwight and Lynn Janzer, John Gerich, Judy Gerich, Doug Kuchenbrand, Anna Kuchenbrand, Gail Moore, Don Gilmour, and Laura Jacques-Gilmour, with respect to Water Act Licence No. 00207448-00-00 issued to DJ Hog Farms Ltd. by the Director, Northern Region, Regional Services, Alberta Environment.

 

 

Cite as:            Future of Blackfoot and Area Environmental Association et al. v. Director, Northern Region, Regional Services, Alberta Environment re:  DJ Hog Farms Ltd. (29 September 2006), Appeal Nos. 05-057-064, 067-069-R (A.E.A.B.).

 

 

MEDIATION BEFORE:	Mr. Ron Peiluck, Vice-Chair.
APPEARANCES:
Appellants:	The Future of Blackfoot and Area Environmental Association, represented by Mr. Don Gilmour; Ms. Lori Fradette; Mr. Gerry Fradette; Mr. Dwight and Ms. Lynn Janzer; Mr. John Gerich; Ms. Judy Gerich; Mr. Doug Kuchenbrand; Ms. Anna Kuchenbrand; Ms. Gail Moore; Mr. Don Gilmour; and Ms. Laura Jacques-Gilmour.
Director:	Mr. Tom Slater, Director, Northern Region, Regional Services, Alberta Environment; Mr. Guy Hancock, Application Coordinator, Alberta Environment; Mr. Kevin Nipp, Hydrogeologist, Alberta Environment; Mr. Steve Wallace, Hydrogeologist, Alberta Environment; represented by Mr. William McDonald Alberta Justice.
Licence Holder:	Mr. Dwight Peregrym and Mr. Jason Peregrym, DJ Hog Farms Ltd., represented by Mr. Keith Wilson, Wilson Law Office.
Other Participants:	County of Vermilion River, represented by Mr. Don Whittaker, Reeve; Mr. Miles Latimer, Deputy Reeve; and Mr. Howie Bjorge, Agricultural Fieldman.
Board Staff:	Ms. Marian Fluker, Associate Counsel.

 

 

EXECUTIVE SUMMARY

 

Alberta Environment issued a Licence, under the Water Act, to DJ Hog Farms Ltd., authorizing the operation of a works and the diversion of up to 9,137 cubic metres of water annually for agricultural purposes (confined feeding operation) near Blackfoot, Alberta.

 

The Board received 11 Notices of Appeal from the Future of Blackfoot and Area Environmental Association, Ms. Lori Fradette, Mr. Gerry Fradette, Mr. Dwight and Ms. Lynn Janzer, Mr. John Gerich, Ms. Judy Gerich, Mr. Doug Kuchenbrand, Ms. Anna Kuchenbrand, Ms. Gail Moore, Mr. Don Gilmour, and Ms. Laura Jacques-Gilmour appealing the Licence.

 

The Board conducted a mediation meeting at which the participants reached an agreement with respect to the Licence.  Further discussions took place and an additional agreement was struck.  The Board recommends that the Minister of Environment accept the agreements.

 

 

 

                                                       TABLE OF CONTENTS

I.      BACKGROUND................................................................................................................. 1

II.    MEDIATION MEETING.................................................................................................... 2

III.   RECOMMENDATIONS..................................................................................................... 2

IV.   RESOLUTION..................................................................................................................... 4

V.    DRAFT ORDER................................................................................................................ 16

I.                                          BACKGROUND

[1]                                       On January 6, 2006, the Director, Northern Region, Regional Services, Alberta Environment (the “Director”), issued Licence No. 00207448-00-00 under the Water Act, R.S.A. 2000, c. W-3 (the “Licence”) to DJ Hog Farms Ltd. (the “Licence Holder”) authorizing the operation of a works and the diversion of up to 9,137 cubic metres of water annually from the source of water from wells at NE 12-050-02-W4M, near Blackfoot, Alberta, for agricultural purposes (confined feeding operation).

[2]                                       On January 25, 2006, the Environmental Appeals Board (the “Board”) received 13 Notices of Appeal^[1] appealing the Licence.  Two of the 13 Notices of Appeal, were subsequently withdrawn.^[2]

[3]                                       On January 30, 2006, the Board wrote to the Appellants, the Licence Holder and the Director (collectively the “Participants”) acknowledging receipt of the Notices of Appeal, requesting additional information from certain Appellants, and notifying the Licence Holder and the Director of the appeals. The Board also requested the Director provide the Board with a copy of the records (the “Record”) relating to these appeals, and the Participants provide available dates for a mediation meeting, preliminary meeting, or hearing.

[4]                                       According to standard practice, the Board wrote to the Natural Resources Conservation Board (the “NRCB”) and the Alberta Energy and Utilities Board (the “AEUB”) asking whether this matter had been the subject of a hearing or review under their respective legislation.  The AEUB responded in the negative.  On February 7, 2006, NRCB wrote to the Board advising that a review had been conducted in relation to the Licence Holder’s confined feeding operation, however, the review was limited to issues relating to the “Minimum Distance Setback.”  The NRCB further advised that their review did not deal with concerns regarding groundwater requirements or the Licence issued by Alberta Environment.

[5]                                       On February 22, 2006, the Board received a copy of the Record from the Director, and on February 28, 2006, forwarded a copy to the Appellants and the Licence Holder, and again requested that certain Appellants provide additional information as previously requested.

[6]                                       On April 6, 2006, due to delays in receiving the requested information, the Board requested the Participants again provide their available dates for a mediation meeting in May 2006.  On April 20, 2006, the Board, in consultation with the Participants, scheduled a mediation meeting for May 17, 2006, to be held in Lloydminster, Alberta. 

[7]                                       On April 26, 2006, the County of Vermillion provided a copy of the draft Regional Water Study completed by Urban Systems and Golder Associates and advised there would be a representative of the County at the mediation meeting.

II.                                       MEDIATION MEETING

[8]                                       Pursuant to section 11 of the Environmental Appeal Board Regulation, Alta. Reg. 114/93, the Board conducted a mediation meeting on May 17, 2006 in Lloydminster , Alberta with Mr. Ron V. Peiluck, Vice-Chair, as the presiding mediator (the “Mediator”).

[9]                                       In conducting the mediation meeting, the Mediator reviewed the mediation process and explained the purpose of the mediation meeting.  He then circulated copies of the Participants’ Agreement to Mediate.  All Participants signed the Agreement and discussions ensued.

[10]                                   Following productive and detailed discussions at the mediation meeting, and during subsequent conference calls, Resolutions were reached.  These documents are attached as pages 4 to 15.

III.                                   RECOMMENDATIONS

[11]                                   In accordance with section 99 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (the “Act”), the Board recommends that the Minister of Environment order that Water Act Licence No. 00207448-00-00 be varied in accordance with the Resolutions reached by the Participants.  Attached for the Minister’s consideration is a draft Ministerial Order implementing this recommendation.

[12]                                   Further, with respect to sections 100(2) and 103 of the Act, the Board recommends that copies of this Report and Recommendations, and of any decision by the Minister, be sent to the following:

•         Mr. Don Gilmour;

•         Ms. Laura Jacques-Gilmour;

•         Mr. Doug and Ms. Anna Kuchenbrand;

•         Mr. Dwight and Ms. Lynn Janzer;

•         Mr. Gerry and Ms. Lori Fradette;

•         Mr. John and Ms. Judy Gerich;

•         Ms. Gail Moore;

•         Mr. Don Whittaker, Reeve, County of Vermilion River;

•         Mr. Howie Bjorge, Agricultural Fieldman, County of Vermilion River;

•         Mr. Keith Wilson, Wilson Law Office, representing Mr. Dwight Peregrym and Mr. Jason Peregrym of DJ Hog Farms Ltd.; and

•         Mr. William McDonald, Alberta Justice, representing Mr. Tom Slater, Director, Northern Region, Regional Services, Alberta Environment.

 

Dated on September 29, 2006, at Edmonton, Alberta.

 

 

________________________________

Steve E. Hrudey, D.Sc. (Eng.), P.Eng.

Chair

IV.                                   RESOLUTION

RESOLUTION

ENVIRONMENTAL APPEALS BOARD

EAB File No. EAB 05-057-064 and 05-067-069

 

In the matter of the mediation of the appeal of the decision of the Director, Central Region, Regional Services, Alberta Environment, to issue Licence No. 00207448-00-00 under the Water Act, R.S.A. 2000, c. W-3, to DJ Hog Farms Ltd. (“DJ Hog”), authorizing the operation of a works and the diversion of up to 9,137 cubic metres of water annually from the source of water from wells at NE 12-050-02-W4, near Blackfoot, Alberta, for agricultural purposes.

 

All participants to the appeals have agreed to the following terms and conditions:

 

1.                  THAT Licence No. 00207448-00-00 be amended by adding immediately after  condition 4.7 the following:

 

“4.7.1 The Licensee shall submit an Annual Water Use Report to the Future of Blackfoot and Area Environmental Association

(a)        on or before February 28^th of each year following the year in which the information on which the report is based was collected; or

(b)        within a time period specified by the Director.”

 

2.         THAT the Representatives of the County of Vermillion River (the “County”) agree to place a motion before the County Council, requesting that the County commit to having the results from the water level testing of one of the County’s wells located at NW 01-50-02 W4M be provided to the Future of Blackfoot and Area Environmental Association (“FOBAEA”) on an annual basis, starting February 2007. 

 

3.         THAT the Representatives of the County agree to place a motion before the County Council, requesting the County commit to having its independent agent or qualified person take annual water quality sampling from the DJ Hog well and analyzed on an equivalent basis to that required by the Natural Resources Conservation Board, and the independent agent or qualified person will submit the water sampling to a qualified laboratory and the County will provide the results to FOBAEA and DJ Hog.

 

4.         THAT the Representatives of the County agree to place a motion before the County Council, requesting the County commit to having its independent agent or qualified person measure the pumping water level of DJ Hog Well PW3-98 on a quarterly basis, and the County will provide the results of these tests to FOBAEA and DJ Hog.

 

5.         THAT the Representative of the County shall place the motion before the County Council on or before May 31, 2006.

 

6.         THAT if the motion is not ratified by the County, the participants can request a continuation of the mediation process.

 

7.         THAT in consideration of the foregoing, and providing the County passes the motion as stated above, the Appellants, Mr. Don Gilmour on behalf of himself and the Future of Blackfoot and Area Environmental Association (FOBAEA), Ms. Lori Fradette, Mr. Gerry Fradette, Mr. Dwight and Ms. Lynn Janzer, Mr. John Gerich, Ms. Judy Gerich, Mr. Doug Kuchenbrand, Ms. Anna Kuchenbrand, Ms. Gail Moore, and Ms. Laura Jacques-Gilmour, agree to withdraw their Notices of Appeal.

 

 

RESOLUTION AGREED TO BY:

 

“original signed by” _________________________________ Don Gilmour   “original signed by” _________________________________ Laura Jacques-Gilmour   “original signed by” _________________________________ Doug Kuchenbrand   “original signed by” _________________________________ Anna Kuchenbrand   “original signed by” _________________________________ Dwight Janzer Represented by Don Gilmour   “original signed by” _________________________________ Lynn Janzer Represented by Don Gilmour   “original signed by” ________________________________ Gerry Fradette   “original signed by” ________________________________ Lori Fradette   “original signed by” ________________________________ John Gerich Represented by Don Gilmour     “original signed by” ________________________________ Judy Gerich Represented by Don Gilmour   “original signed by” _______________________________ Gail Moore   “original signed by” _______________________________ Tom Slater, Director, Central Region Regional Services, Alberta Environment represented by William McDonald, Alberta Justice   “original signed by” ________________________________ Dwight Peregrym DJ Hog Farms Ltd. Represented by Keith Wilson, Wilson Law Office   “original signed by” ________________________________ Jason Peregrym DJ Hog Farms Ltd. Represented by Keith Wilson, Wilson Law Office   “original signed by” _________________________________ Don Whittaker, Reeve County of Vermilion River   “original signed by” ________________________________ Howie Bjorge Agricultural Fieldman County of Vermilion River                     “original signed by” ________________________________ Miles Latimer Deputy Reeve County of Vermilion River

Date: May 17, 2006       Date: May 17, 2006       Date: May 17, 2006       Date: May 17, 2006       Date: May 17, 2006         Date: May 17, 2006         Date: May 17, 2006       Date: May 17, 2006       Date: May 17, 2006           Date: May 17, 2006         Date: May 17, 2006       Date: May 17, 2006             Date: May 17, 2006             Date: May 17, 2006             Date: May 17, 2006         Date: May 17, 2006                         Date: May 17, 2006

 

RESOLUTION

ENVIRONMENTAL APPEALS BOARD

EAB File No. EAB 05-057-064 and 05-067-069

 

In the matter of the mediation of the appeal of the decision of the Director, Central Region, Regional Services, Alberta Environment, to issue Licence No. 00207448-00-00 under the Water Act, R.S.A. 2000, c. W-3, to DJ Hog Farms Ltd. (“Licence Holder”), authorizing the operation of a works and the diversion of up to 9,137 cubic metres of water annually from the source of water from wells at NE 12-050-02-W4, near Blackfoot, Alberta, for agricultural purposes.

 

All participants to the appeals have agreed to the following terms and conditions:

 

1.         THAT this is an amendment to the Resolution agreed to by the Participants on May 17, 2006, and where there is a conflict between the Resolution signed on May 17, 2006 and this Resolution, this Resolution shall be followed.  Otherwise, the terms in the May 17, 2006 Resolution will remain in force.

 

2.         THAT the monitoring specified in the May 17, 2006 Resolution will start when the Licence Holder starts using the PW3-98 well in 2007.

 

3.         THAT the Representatives from the County of Vermilion River (the “County”) agree to place a motion before the County Council, requesting that the County amend motions 45-05-06 and 46-05-06 carried at the May 23, 2006 County Council meeting by deleting the phrase “its independent agent or qualified person” and replacing it with “a qualified, independent agent”.

 

4.         THAT the Representative of the County shall place the motion before the County Council on or before August 1, 2006.

 

5.         THAT should the County decide in five years not to continue having its qualified independent agent conduct the testing on the PW3-98 well, then the Licence Holder shall hire an independent, qualified person to conduct the testing as stated in conditions 3 and 4 of the May 17, 2006 Resolution.

 

6.         THAT with these changes, the Participants confirm that condition 6 of the May 17, 2006 Resolution has been satisfied.

 

7.         THAT the Participants agree this Resolution can be signed by counterpart.

 

RESOLUTION AGREED TO BY:

 

“original signed by” _________________________________ Don Gilmour               “original signed by” _____________________________ Laura Jacques-Gilmour     _________________________________ Doug Kuchenbrand     _________________________________ Anna Kuchenbrand     “original signed by” _________________________________ Dwight Janzer Represented by Don Gilmour     “original signed by” _________________________________ Lynn Janzer Represented by Don Gilmour     ___________________________ Gerry Fradette Represented by Don Gilmour     ________________________________ Lori Fradette Represented by Don Gilmour     “original signed by” ________________________________ John Gerich Represented by Don Gilmour     “original signed by” ________________________________ Judy Gerich Represented by Don Gilmour         “original signed by”   __________________________ Gail Moore Represented by Don Gilmour     _______________________________ Tom Slater, Director, Central Region Regional Services, Alberta Environment represented by William McDonald, Alberta Justice     ________________________________ Dwight Peregrym DJ Hog Farms Ltd. Represented by Keith Wilson, Wilson Law Office     ________________________________ Jason Peregrym DJ Hog Farms Ltd. Represented by Keith Wilson, Wilson Law Office     _________________________________ Don Whittaker, Reeve County of Vermilion River     ________________________________ Howie Bjorge Agricultural Fieldman County of Vermilion River     ________________________________ Miles Latimer Deputy Reeve County of Vermilion River

Date: Sept 18, 2006                   Date: Sept 18, 2006       Date: ___________       Date: ___________         Date: Sept 18, 2006           Date: Sept 18, 2006         Date: ___________         Date: ____________           Date: Sept 18, 2006           Date: Sept 18, 2006                 Date: Sept 18, 2006         Date: __________             Date: __________             Date: __________             Date: __________         Date: __________           Date: __________

 

 

 

_____________________________ Laura Jacques-Gilmour     “original signed by” _________________________________ Doug Kuchenbrand     “original signed by” _________________________________ Anna Kuchenbrand     _________________________________ Dwight Janzer Represented by Don Gilmour     _________________________________ Lynn Janzer Represented by Don Gilmour     ___________________________ Gerry Fradette Represented by Don Gilmour     ________________________________ Lori Fradette Represented by Don Gilmour     ________________________________ John Gerich Represented by Don Gilmour       ________________________________ Judy Gerich Represented by Don Gilmour

Date: ___________         Date: Aug 29, 2006         Date: Aug 29, 2006       Date: ___________         Date: ___________         Date: ___________         Date: ____________         Date: ____________           Date: ____________

 

_____________________________              Date: _________________

Laura Jacques-Gilmour

 

 

_________________________________      Date: __________________

Doug Kuchenbrand

 

 

_________________________________      Date: __________________

Anna Kuchenbrand

 

 

_________________________________      Date: __________________

Dwight Janzer

Represented by Don Gilmour

 

 

_________________________________      Date: ___________________

Lynn Janzer

Represented by Don Gilmour

 

 

“original signed by”

__________________________________    Date: Aug 31, 2006                

Gerry Fradette

Represented by Don Gilmour

 

 

“original signed by”

________________________________                    Date: Aug 31, 2006                

Lori Fradette

Represented by Don Gilmour

 

 

________________________________                    Date: ___________________

John Gerich

Represented by Don Gilmour

 

 

________________________________                   Date: ____________________

Judy Gerich

Represented by Don Gilmour

 

 

 

__________________________                   Date: ______________________

Gail Moore

Represented by Don Gilmour

 

 

“original signed by”

_______________________________                     Date: Sept 5, 2006                  

Tom Slater, Director, Central Region

Regional Services, Alberta Environment

represented by William McDonald, Alberta Justice

 

 

________________________________                    Date: ______________________

Dwight Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

________________________________                    Date: ______________________

Jason Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

“original signed by”

_________________________________      Date: Aug 22, 2006                

Don Whittaker, Reeve

County of Vermilion River

 

 

“original signed by”

________________________________                    Date: Aug 22, 2006                

Howie Bjorge

Agricultural Fieldman

County of Vermilion River

 

“original signed by”

________________________________                    Date: Aug 22, 2006                

Miles Latimer

Deputy Reeve

County of Vermilion River

 

 

 

 

 

 

 

__________________________                   Date: ______________________

Gail Moore

Represented by Don Gilmour

 

 

_______________________________                     Date: ______________________

Tom Slater, Director, Central Region

Regional Services, Alberta Environment

represented by William McDonald, Alberta Justice

 

 

“original signed by”

________________________________                    Date: Aug 8, 2006                  

Dwight Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

“original signed by”

________________________________                    Date: Aug 8, 2006                  

Jason Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

_________________________________      Date: ______________________

Don Whittaker, Reeve

County of Vermilion River

 

 

________________________________                    Date: ______________________

Howie Bjorge

Agricultural Fieldman

County of Vermilion River

 

 

________________________________                    Date: ______________________

Miles Latimer

Deputy Reeve

County of Vermilion River

 

 

__________________________                   Date: ______________________

Gail Moore

Represented by Don Gilmour

 

 

_______________________________                     Date: ______________________

Tom Slater, Director, Central Region

Regional Services, Alberta Environment

represented by William McDonald, Alberta Justice

 

 

________________________________                    Date: ______________________

Dwight Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

________________________________                    Date: ______________________

Jason Peregrym

DJ Hog Farms Ltd.

Represented by Keith Wilson, Wilson Law Office

 

 

“original signed by”

_________________________________      Date: Aug 22, 2006                

Don Whittaker, Reeve

County of Vermilion River

 

 

“original signed by”

________________________________                    Date: Aug 22, 2006                

Howie Bjorge

Agricultural Fieldman

County of Vermilion River

 

 

“original signed by”

________________________________                    Date: Aug 22, 2006                

Miles Latimer

Deputy Reeve

County of Vermilion River

 

V.                                       DRAFT ORDER

 

 

 

 

 

Ministerial Order

   /2006

 

 

 

Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12;

 

and

 

Water Act, R.S.A. 2000, c. W-3.

 

 

 

Order Respecting Environmental Appeals Board

Appeal Nos. 05-057-064 and 05-067-069

 

I, Guy Boutilier, Minister of Environment, pursuant to section 100 of the Environmental Protection and Enhancement Act, make the order in the attached Appendix, being an Order Respecting Environmental Appeals Board Appeal Nos. 05-057-064 and 05-067-069.

 

Dated at the City of Edmonton, in the Province of Alberta, this _____ day of ___________, 2006.

 

 

 

 

 

_________________________

Guy Boutilier

Minister

 

Draft Appendix

 

Order Respecting Environmental Appeals Board Appeal Nos. 05-057-064 and 05-067-069

 

With respect to the decision of the Director, Northern Region, Regional Services, Alberta Environment (the “Director”) to issue Licence No. 00207448-00-00 (the “Licence”) under the Water Act, R.S.A. 2000, c.W-3, to DJ Hog Farms Ltd. (the “Licensee”), I, Guy Boutilier, Minister of Environment, order that:

 

1.         The decision of the Director to issue Licence No. 00207448-00-00 is confirmed subject to the following amendments:

 

2.                  The Licence is amended by adding the following immediately after condition 4.7:

 

“4.7.1  The Licensee shall submit an Annual Water Use Report to the Future of Blackfoot and Area Environmental Association

(a)                on or before February 28^th of each year following the year in which the information on which the report is based was collected; or

(b)               within a time period specified by the Director.”

ALBERTA ENVIRONMENT

Office of the Minister

 

 

 

 

Ministerial Order

22/2006

 

 

 

 

 

Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12;

 

and

 

Water Act, R.S.A. 2000, c. W-3.

 

 

 

Order Respecting Environmental Appeals Board

Appeal Nos. 05-057-064 and 05-067-069

 

I, Guy Boutilier, Minister of Environment, pursuant to section 100 of the Environmental Protection and Enhancement Act, make the order in the attached Appendix, being an Order Respecting Environmental Appeals Board Appeal Nos. 05-057-064 and 05-067-069.

 

Dated at the City of Edmonton, in the Province of Alberta, this 10 day of October, 2006.

 

 

 

 

“original signed by”

_________________________

Guy Boutilier

Minister

 

Appendix

 

Order Respecting Environmental Appeals Board Appeal Nos. 05-057-064 and 05-067-069

 

With respect to the decision of the Director, Northern Region, Regional Services, Alberta Environment (the “Director”) to issue Licence No. 00207448-00-00 (the “Licence”) under the Water Act, R.S.A. 2000, c.W-3, to DJ Hog Farms Ltd. (the “Licensee”), I, Guy Boutilier, Minister of Environment, order that:

 

1.         The decision of the Director to issue Licence No. 00207448-00-00 is confirmed subject to the following amendments:

 

2.         The Licence is amended by adding the following immediately after condition 4.7:

 

“4.7.1  The Licensee shall submit an Annual Water Use Report to the Future of Blackfoot and Area Environmental Association

(a)        on or before February 28^th of each year following the year in which             the information on which the report is based was collected; or

(b)         within a time period specified by the Director.”