Appeals

 

 

2021 ABEAB 10                                                           April 30, 2021

 

                                                                                    Via E-Mail or Mail

 

Diana Calder      (Appellant EAB 18-011)   Emile Saindon Landfill Manager Crowsnest/Pincher Creek Landfill Association Box 668 Pincher Creek, AB  T0K 1W0 (Approval Holder)

Alison Altmiks Alberta Justice and Solicitor General Environmental Law Section 8th Floor, Oxbridge Place 9820 – 106 Street Edmonton, AB  T5K 2J6 (Counsel for the Director, AEP)   Stephanie Demers Tanya Cairns Integrated Sustainability #1600, 400 – 3 Avenue SW Calgary, AB  T2P 4H2 (Technical Advisor for Approval Holder)

 

Re:     Decision* - Crowsnest/Pincher Creek Landfill Association/EPEA Approval No.

                        18701-02-01/Our File No.: EAB 18-011                                                                       

 

                        These are the reasons for the June 4, 2020 decision of Line Lacasse, Board Member, denying the applications to intervene in the hearing of the above-noted Amending Approval.

 

Background

 

                          On June 23, 2018, the Director, South Saskatchewan Region, Operations Division, Alberta Environment and Parks (the “Director”), issued Amending Approval No. 18701-02-01 (the “Amending Approval”) to the Crowsnest/Pincher Creek Landfill Association (the “Approval Holder”), amending its original approval^[1] for the construction and maintenance of a Class II Landfill, by adding an incinerator (the “Landfill”).  On August 20, 2018, the Board received a Notice of Appeal from Diana Calder (the “Appellant”) appealing the Director’s decision to issue the Amending Approval.

 

                        In response to the Board’s Notice of Hearing advertisement notifying the public of the written hearing of the appeal of the Director’s decision to issue the Amending Approval, the Board received applications to intervene (the “Applications”) from Andrea and Markus Beck, Duane and Lynne DeCock, and Ianthe Goodfellow (collectively the “Applicants”).^[2]

 

 

                        Upon receiving the Applications, the Board asked the Appellant, the Approval Holder, and Director (the “Parties”) for their comments on whether the Board should grant intervenor status to the Applicants, and if so, what level of participation the Applicants should be given.

 

                        After reviewing the Applications and the Parties’ submissions, the Board dismissed the Applications.  A letter advising the Applicants and Parties of the decision was issued on June 4, 2020 with reasons to follow.  These are the Board’s reasons for its decision to dismiss the Applications.

 

Applicants’ Submissions

 

                        The Applicants either reside in Cowley or Pincher Creek, Alberta, and own or access land in proximity to the Landfill, in a range of 2.5 to 5 kilometres.  In each of the applications, the Applicants expressed concerns with the proposed incinerator and stated they were against the proposed incinerator.

 

                        In their May 10, 2020 submission, Andrea and Markus Beck (the “Becks”) expressed surprise and disbelief that the Landfill was still installing an incinerator given the current movement to reduce greenhouse gas and CO₂ emissions.  They stated it was their understanding that the proposed incinerator would be used to burn materials that could be recycled, used to produce power, or repurposed.  The Becks stated they understood the initial combustible material to start the incinerator would be natural gas, and the materials to be burned would be wood waste, farm plastics, and animal carcasses.  The Becks further stated there were already programs in place and means to dispose of these materials without waste and more specifically: the wood is compostable or could be used for landscaping, Alberta has an agricultural plastics recycling program, and there are facilities such as Lethbridge Biogas that generate power from animal carcasses.  The Becks generally objected to burning these materials instead of putting them to other uses because of the impact on the environment.  The Becks also referred to their correspondence previously sent to Alberta Environment and Parks (“AEP”) regarding the incinerator.

 

                        In their July 25, 2017, statement of concern to AEP, the Becks explained they are landowners, located at SE-09-07-01-W5M, approximately 2.5 kilometres southeast and downwind of the Landfill.  They stated their main concern is the release of toxins and particulate matter from the incinerator.  They are concerned that the incinerator is not measuring the accumulation of toxins in the surrounding area.  The Becks stated they have two surface water wells that supply their home and livestock, and a watercourse and are concerned about particulates that could deposit into those wells and the watercourse.  They stated airborne toxins and particulates can travel distances from the source and expressed concerns that the particulates may not disperse.  The Becks expressed additional concerns about the Approval Holder’s ability to expand the materials it could burn in the incinerator, which would cause additional toxins to be released into the environment.

 

                        The Becks expressed concerns about the incinerator fitting in with the overall vision and mission for the Crowsnest Pass and Pincher Creek communities, focusing on those communities stated values of preserving the natural environment and sound decision-making processes.  They argued the incinerator would discourage environmental stewardship.  They further expressed concerns about the Landfill’s lack of public engagement, noting the wrong approval number was provided in the letter advising of the amendment application.  They asked that if the amendment is approved, the Landfill be required to collect and make publicly available baseline soil, surface, and well water data.

 

 

                        In their May 5, 2020 submission, Duane and Lynne DeCock (the “DeCocks”) stated they were against the operation of the incinerator at the Landfill, for the reasons mentioned in prior correspondence sent to AEP.  In their September 5, 2016 correspondence to AEP,^[3] the DeCocks stated their property is located at SE-17-01-01-W5M, approximately 2.5 miles (4 km) northeast of the Landfill.  The DeCocks expressed concerns regarding the potential release of toxins from the incinerator being detrimental to the environment, including airborne toxins that could potentially enter the waterways.

 

                        In their July 11, 2017 statement of concern to AEP, the DeCocks noted their proximity to the Landfill and their location downwind of the Landfill.  The DeCocks stated that although the models and simulations for the incinerator appeared to be below guidelines for all regulated emissions, the models for the incinerator did not seem to account for bioaccumulation.  They said they felt the incinerator is not in the best interests of the environment.  They expressed concern regarding toxins being released from the incineration process.  They stated the models were silent on the particulates that could be deposited into dugouts and waterbodies and expressed concerns about the quantity of particulates that may be accumulating in their dugouts and other waterbodies, stating they did not feel confident the particulates would disperse.  The DeCocks stated airborne toxins and particles could travel distances from the source.  They further expressed concerns regarding their cattle which are located on their land year-round, and the bird and amphibian species that inhabit their dugouts.  

 

                        The DeCocks expressed additional concerns regarding the Approval Holder’s ability to apply to expand the materials for incineration, which would lead to the release of additional toxins in the environment.  The DeCocks expressed similar concerns to the Becks regarding the incinerator fitting in with the overall vision and mission for the Crowsnest Pass and Pincher Creek communities.  The DeCocks expressed further concerns regarding the Approval Holder’s community involvement in the project, stating, “[w]hen they did hold open houses, the overall feel from the community was resistance and it doesn’t seem the landfill has listened to its community members.”^[4]  They also noted the wrong approval number was provided in the letter advising of the amendment application. The DeCocks also made a similar request to the Becks for an amendment to the Amending Approval if it is approved, the Landfill be required to collect and make publicly available baseline soil, surface, and well water data.

 

                        In her submission dated May 9, 2020, Ianthe Goodfellow stated she purchased eggs and plants from the Appellant, who operates a greenhouse and raises chickens in close proximity to the Landfill.  Ms. Goodfellow stated that high winds are known to occur often in the area, and these could disperse contaminants beyond the Landfill.  She further stated that water, soil and air could harbor pollutants and that people, plants, and animals could suffer the effects of those pollutants.

 

Parties’ Comments

 

1.    Approval Holder

 

The Approval Holder argued the Becks’ May 10, 2020 letter, did not meet the criteria set out in Rule 14 of the Board’s Rules of Practice (“Rule 14”).^[5]  The Approval Holder provided a summary of the correspondence^[6] sent by the Approval Holder to the Becks over the period of July 25, 2017, to the date of the Becks’ intervenor application.  The Approval Holder stated they had responded to the Becks’ concerns to the satisfaction of the Director prior to the Director’s decision to issue the Amending Approval and had offered to meet with the Becks.  The Approval Holder stated that it did not receive a response to its offer and the Becks did not meet with the Approval Holder despite its offer.

 

The Approval Holder argued the concerns raised by the Becks in their May 10, 2020 intervenor application repeated or duplicated evidence, as the Becks had previously raised these issues in their July 25, 2017 statement of concern.  The Approval Holder stated the Becks’ concerns regarding testing and reporting, community engagement, environmental and operational issues were previously raised by the Becks and addressed by the Approval Holder to the satisfaction of the Director prior to the Director’s decision to issue the Amending Approval.  The Approval Holder argued their participation would result in repeating or duplicating evidence and arguments, and their participation in the appeal would not materially assist the Board in deciding the appeal.

 

            The Approval Holder argued the DeCocks’ May 5, 2020 letter, did not meet the criteria set out in Rule 14.  The Approval Holder provided a summary of the correspondence exchanged between the Approval Holder and the DeCocks between September 5, 2016 and their July 11, 2017 statement of concern, to the filing of the DeCocks’ intervenor application on May 9, 2020.  During that period, the Approval Holder sent three letters to the DeCocks in response to their letters of opposition sent to AEP and met with them once to discuss their statement of concern.  The last piece of correspondence exchanged was a letter sent by the Approval Holder to the DeCocks on April 17, 2018.  As with the Becks, the Approval Holder argued it addressed their concerns to the satisfaction of the Director prior to the Director making his decision to issue the Amended Approval.  The Approval Holder argued the DeCocks were raising concerns previously raised in their statement of concern, and their participation in the appeal would result in either repeating or duplicating evidence and arguments regarding air, water and soil quality, odour, testing and reporting, and community engagement.  The Approval Holder stated their intervention would not materially assist the Board in deciding the appeal.

 

            The Approval Holder argued Ianthe Goodfellow’s May 9, 2020 letter does not meet the criteria set out in Rule 14.  The Approval Holder indicated this was the first time Ms. Goodfellow was raising her concerns.  The Approval Holder further stated that her concerns duplicated the concerns and evidence of the other Applicants.  Namely, the concerns regarding air, water, and soil quality that the Becks presented in their July 25, 2016 statement of concern, and that of the DeCocks, contained in their correspondence to AEP dated September 5, 2016 and July 11, 2017. The Approval Holder stated the incinerator does not have approval to process hazardous waste, and evidence related to this issue is not relevant to the appeal.

 

2.    Director

 

                        The Director argued against the Applicants being granted intervenor status.  The Director stated the Becks submitted a statement of concern regarding the application, were informed of the Director’s decision to issue the Amending Approval on July 23, 2018, but did not file a Notice of Appeal.  The Director commented the Becks were now applying to intervene on May 10, 2020, in an appeal process that commenced in August 2018.  The Director argued granting intervenor status to individuals that initially chose not to participate in the proceedings is against the Board’s direction in its Rules of Practice that, “[t]hose wishing to become involved in an appeal process must therefore make their intentions known to the Board as soon as possible.”^[7]  The Director noted that the Becks, in their submissions, stated their opinion on alternate waste management options and argued that submissions on alternate waste management options would not materially assist the Board in determining the appeal. The Director stated the appeal is based on the application the Approval Holder submitted to the Director and the Director’s decision to issue an amendment.  

 

                        The Director stated the DeCocks submitted a statement of concern in relation to the application and were informed of the Director’s decision on July 23, 2018.  The Director commented that the DeCocks chose not to appeal and have now applied to intervene on May 5, 2020.  The Director argued that granting intervenor status would be inconsistent with the Board’s Rules of Practice.  The Director commented that the July 11, 2017 letter from the DeCocks was accepted as a statement of concern and received responses from the Approval Holder.  The Director further stated the September 5, 2016 letter from the DeCocks was in regard to the renewal of the approval application for the Landfill rather than the application regarding the Amending Approval for the incinerator, which is the subject matter of the appeal before the Board.  The Director commented the concerns raised by the DeCocks predate the July 23, 2018 decision, and the DeCocks raise no new arguments other than those initially included in their statement of concern.  The Director argued that issues raised by the DeCocks relating to future amendments to approval conditions are speculative and not properly before the Board.

 

                        The Director argued that Ms. Goodfellow should not be granted intervenor status as her intervention would duplicate the arguments and evidence presented by the Parties.  The Director argued that as Ms. Goodfellow is a customer of the Appellant’s business, Bailey Hill Greenhouses, the arguments she intends to make pertain to the potential impacts to Bailey Hill Greenhouses and will likely duplicate the Appellant’s submissions.  The Director argued that Ms. Goodfellow has not identified unique evidence or argument and submitted it is unlikely that her submissions would materially assist the Board in deciding the appeal.

                       

3.         Appellant

 

                        The Appellant supported the Applicants’ intervenor Applications.  The Appellant stated that the Applicants were all residents of the Municipal District of Pincher Creek No. 9, and one is a resident taxpayer of the Town of Pincher Creek.  The Appellant stated the Becks and DeCocks are in direct line of the wind from the Landfill and live “virtually next door to the Landfill.”^[8]  The Appellant further stated that the Applicants’ concerns were logical, well informed, and their contributions in the appeal process would be valuable.  The Appellant commented that the Applicants were well informed on the realities and adverse situations posed by the installation of the incinerator.  The Appellant further stated the third-party input the Applicants would present would be a realistic view of the impact of the project on the community.^[9]

 

Legislation

                        Under section 95 of the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12 (“EPEA”), the Board may determine who can make representations before it.  Section 95(6) of EPEA states:

 

“Subject to subsection (4) and (5), the Board shall, consistent with the principles of natural justice, give the opportunity to make representations on the matters before the Board to any person who the Board considers should be allowed to make representations.”

 

          Section 9 of the Environmental Appeal Board Regulation, Alta. Reg. 114/93 (the “Regulation”), requires the Board to determine whether a person submitting a request to make representations should be allowed to do so at the hearing of an appeal.  Sections 9(2) and 9(3) of the Regulation provide:

 

“(2)    Where the Board receives a request in writing in accordance with section 7(2)(c) and subsection (1), the Board shall determine whether the person submitting the request should be allowed to make representations in respect of the subject matter of the notice of appeal and shall give the person written notice of that decision.

 

(3)      In a notice under subsection (2) the Board shall specify whether the person submitting the request may make the representations orally or by means of a written submission.”

 

Rule 14 of the Board’s Rules of Practice outlines the factors the Board considers in an intervenor application. It provides in part:

 

“As a general rule, those persons or groups wishing to intervene must meet the following tests:

 

•                their participation will materially assist the Board in deciding the appeal by providing testimony, cross-examining witnesses, or offering argument or other evidence directly relevant to the appeal; the intervenor has a tangible interest in the subject matter of the appeal; the intervention will not unnecessarily delay the appeal;

 

•                the intervenor in the appeal is substantially supporting or opposing the appeal so that the Board may know the designation of the intervenor as a proposed appellant or respondent;

 

•                the intervention will not repeat or duplicate evidence presented by other parties; and

 

•                if the intervention request is late, there are documented and sound reasons why the intervenor did not file earlier for such status.”

 

Analysis

 

                        The Applicants have filed Applications to intervene in the hearing of the appeal of the Amending Approval issued by the Director on June 23, 2018.  Pursuant to Rule 14 above, the Board has to consider the factors enumerated to make a decision on the Applications.  The Applicants have the onus to establish, on a balance of probability, that their interventions meet these factors and they should be granted stats to intervene.  

 

                        In R. v. Morgentaler,^[10]  Justice Sopinka of the Supreme Court of Canada said: “[t]he purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non‑party who has a special interest or particular expertise in the subject matter of the appeal.” ^[11]  This requirement for useful and different perspectives is similar to the Board’s own requirement that the proposed evidence not be duplicative of the evidence expected to be provided by existing parties to the appeal.  The purpose of this is practical, to ensure that the intervenor’s evidence or argument will assist the Board and that the intervenor’s participation will not unnecessarily delay the hearing.

 

In Pedersen v. Alberta,^[12] the Alberta Court of Appeal listed factors similar to those of Rule 14 to consider when deciding on the admissibility of an intervention.  The Court found it is not sufficient for applicants to establish that they will be directly affected by the outcome of the hearing^[13] and listed factors to consider,^[14] including that useful and different perspective or particular expertise be provided by the intervention.

 

                        Guided by these decisions, the Board has considered the interpretation of Rule 14 in light of the purpose of an intervention which is to “present submissions […] which are useful and different from the perspective of a non‑party”, in this instance, the Appellant.  Rule 14 contains similar requirements though expressed differently: “…will the participation materially assist the Board in deciding the appeal” and “the intervention will not repeat or duplicate evidence presented by other parties”.

 

                        In their Applications, the Applicants stated their objections to the incinerator and raised issues with the release of toxins and particulates that could become airborne and enter the water, which in turn may affect them because they own land in proximity to the Landfill.  Two of the Applicants live downwind of the Landfill, while one of the Applicants purchases produce and chicken eggs from the Appellant’s business, which is also located near the Landfill.   

 

                        The Appellant provided comments in support of the Applicants’ intervenor Applications generally, stating that “…[a]ll are residents of the MD, and one is also a resident taxpayer in the Town of Pincher Creek…” and that all of the Applicants have valid concerns.^[15]  With respect to the Becks and the DeCocks, the Appellant has further noted they “… live in direct line of the wind, and virtually next door to the landfill.”^[16]  

 

                        While these facts may point to a tangible interest in the appeal and the fact that the Becks and the DeCocks could potentially be directly affected, it is not in itself sufficient to support an intervention. The Applicants must also establish their intervention would materially assist the Board and not repeat or duplicate evidence. 

 

                        None of the Applicants described the evidence and arguments they would provide if allowed to intervene or how they would differ from those of the Appellant.   The Approval Holder and Director submitted the evidence and arguments of the Becks and the DeCocks would be duplicative of issues previously raised in their statements of concern, prior correspondence with AEP and the Appellant, which were reviewed and addressed before the Director issued the Amending Approval.  They noted the Becks’ submissions contained their opinion on alternate waste management options, which would not materially assist the Board in determining the appeal.  Further, the Director noted the DeCocks raised issues related to the initial approval of the Landfill rather than the Amending Approval and issues concerning future amendments to approval conditions that were speculative in nature and outside the scope of the hearing.  With respect to Ms. Goodfellow, the Approval Holder and the Director both argued her evidence would duplicate or repeat the evidence of the other Applicants and the Appellant.

 

                        The Board has reviewed the Appellant’s grounds for appeal as well as the submissions of the Applicants and the Parties.  The Board finds, based on its review, that the Applicants have not proposed to bring evidence or arguments that are different from those of the Appellant or that would materially assist the Board.

 

                        With respect to the Becks and the DeCocks, their prior correspondence demonstrates that their concerns mirror those of the Appellant and would not bring a different perspective from that of the Appellant. Further, the Becks’ submissions on alternate waste management options are not relevant to the appeal and therefore would not materially assist the Board in determining the appeal.  The Board finds the concerns expressed by the DeCocks related to the renewal of the approval application for the Landfill predate the application for the amendment to add the incinerator and are therefore not relevant to the appeal of the Amending Approval.  The same applies to concerns regarding future amendments to approval conditions as they are speculative in nature, and not properly before the Board.

 

 

                        With respect to Ms. Goodfellow, she did not identify the evidence or arguments she intended to rely upon at the hearing other than being a local resident purchasing plants and eggs from the Appellant.  The Board finds that as a customer of the Appellant, the impacts of the Amending Approval on her will arise from her interactions with Bailey Hill Greenhouses, and as a result, she may not be directly affected. In addition, her evidence and arguments regarding the impacts on the greenhouse would be duplicative of the Appellant’s evidence. She has brought no new evidence or argument that would assist the Board in the determination of the appeal.

 

                        The Board also notes that the Becks and DeCocks did not participate in the appeal proceedings, despite being informed of the Director’s decision to issue the Amending Approval in July 2018.  They applied to intervene almost twenty-two months after the appeal proceeding commenced, without explanation as to why they did not appeal the decision in a timely manner.

                       

                        In conclusion, the Applicants failed to meet the onus to establish, on a balance of probability, that their Applications to intervene meet the factors of Rule 14 and that their intervention will materially assist the Board in determining the best recommendations to make to the Minister of Environment and Parks on the issues in the appeal as identified by the Board. 

 

Decision

 

                        For the reasons listed above, the Board denied the intervenor requests filed by Andrea and Markus Beck, Duane and Lynne DeCock, and Ianthe Goodfellow.

 

                        Please do not hesitate to contact the Board if you have any questions.  We can be reached toll-free by first dialing 310-0000 followed by 780-427-6569 for Valerie Myrmo, Registrar of Appeals, and 780-427-7002 for Denise Black, Board Secretary. We can also be contacted via e-mail at valerie.myrmo@gov.ab.ca and denise.black@gov.ab.ca.

 

Yours truly,

 

 

 

 

Gilbert Van Nes

                                                                                    General Counsel

                                                                                    and Settlement Officer

 

cc:        Andrea and Markus Beck

            Duane and Lynne DeCock

            Ianthe Goodfellow

 

The information collected by the Board is necessary to allow the Environmental Appeals Board to perform its function.  The information is collected under the authority of the Freedom of Information and Protection of Privacy Act, section 33(c).  Section 33(c) provides that personal information may only be collected if that information relates directly to and is necessary for the processing of this appeal. The information you provide will be considered a public record.

 

M:\EAB\Appeals 2018\18-011 Crowsnest-Pincher Landfill (Calder)\Decisions\Decision Letter April 30, 2021, intervenors denied.doc