Fourth Floor 747 Fort Street Victoria British Columbia ... · to Revolution. Revolution provided a revised Environmental Protection Notice with acceptable language. That notice states

Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E5 Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: www.eab.gov.bc.ca E-mail: [email protected]

DECISION NO. 2017-EMA-004(a)

In the matter of an appeal under section 100 of the Environmental Management Act, S.B.C. 2003, c. 53.

BETWEEN: Revolution Organics, Limited Partnership APPELLANT

AND: Director, Environmental Management Act RESPONDENT

BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Chair

DATE: Conducted by way of written submissions concluding on March 10, 2017

APPEARING: For the Appellant: For the Respondent:

Robert J.C. Deane, Counsel Stephen E. King, Counsel Fernando de Lima, Counsel

PRELIMINARY ISSUE OF JURISDICTION

[1] Revolution Organics, Limited Partnership (“Revolution”), filed an appeal against a letter dated February 14, 2017 from Cindy Meays, Acting Deputy Director (the “Director”), Regional Operations Branch, Ministry of Environment (the “Ministry”). The letter addresses the notice requirements in relation to Revolution’s permit application.

[2] Before accepting the appeal, the Board requested submissions from the parties regarding whether the February 14, 2017 letter is an appealable “decision” within the meaning of section 99 of the Environmental Management Act, S.B.C. 2003, c. 53 (the “Act”).

[3] This preliminary matter has been heard by way of written submissions.

BACKGROUND

[4] Revolution owns and operates an organic composting facility located in the Botanie Valley, approximately eight kilometres north of Lytton, BC. The compost facility is integrated with a 700 acre certified organic farm (McKay Ranch).

DECISION NO. 2017-EMA-004(a) Page 2

[5] Based upon the information before the Board, the facility was established sometime in or around 2011.1 It composts organic material such as wood chips, tree cuttings, grass clippings, “separated food stuffs”, and compostable paper products.

[6] Compost facilities are regulated under the Act and the Organic Matter Recycling Regulation, B.C. Reg. 18/2002 (the “OMRR”), made under the authority of the Act. Section 2 of the OMRR, titled “general application”, states as follows:

2(1) For the purposes of the Act, compostable materials and recyclable materials continue to be a waste until dealt with in accordance with this regulation.2

(2) A person who produces or uses biosolids or compost is exempt from section 6 (2) and (3) of the Act [prohibiting the introduction of waste into the environment] if the person produces and uses the biosolids or compost only in accordance with this regulation.

(3) This regulation applies in British Columbia to

(a) the construction and operation of composting facilities, and

(b) the production, distribution, storage, sale and use or land application of biosolids and compost.

[7] Revolution’s compost facility was originally developed to produce up to 19,000 tonnes of Class A compost, with all of the compost being used in Revolution’s organic farming operations. In October 2012, Revolution sought to increase the capacity of the facility to up to 125,000 tonnes per year.3

[8] According to section 23(2) of the OMRR, if the annual production capacity of a facility will exceed 20,000 tonnes, the discharger must submit an environmental impact study and accompanying report, prepared by a qualified professional, “that is acceptable to a director”.

[9] Revolution’s qualified professional submitted a report to the Ministry on October 31, 2012. Jason Bourgeois, Delegate for the Director, Environmental Management Act, reviewed the environmental impact study and concluded that it did not meet the requirements of section 23(2) of the OMRR. A revised study was submitted on December 18 and 19, 2012. In an email dated December 19, 2012, Mr. Bourgeois advised that his previous concerns had been addressed in the amended documents, and that the company “has satisfied the requirements of s. 23(2) of OMRR and has provided an environmental impact study report acceptable to a director.” Mr. Bourgeois imposed some conditions and other requirements, including asking for “as built” drawings once the expansion was completed. At this time, the OMRR did not require the owner of a compost facility to hold a permit.

1 Exhibit A to the affidavit of Cindy Meays: letter dated June 29, 2016 from counsel for Revolution to the Ministry, page 7. 2 “Waste” is defined in section 1 of the Act to include: air contaminants, litter, effluent, refuse, biomedical waste, hazardous waste, and any other substance prescribed by the Lieutenant Governor in Council, whether or not the type of waste has any commercial value or is capable of being used for a useful purpose. 3 At this time, it appears that the operator’s name was Northwest Organics Soil Farm.


The permit application

[10] On June 9, 2016, the OMRR was amended by B.C. Reg. 132/2016. Section 3.1 was added to require an owner of a composting facility that meets certain requirements to obtain a permit for the facility. Section 3.1 provides as follows:

Permit required

3.1(1) Section 2(2) [exemption from section 6(2) and (3) of the Act] applies to a discharger in relation to a composting facility that processes food waste or biosolids and has a design production capacity of 5 000 tonnes or more of compost per year only if the discharger holds a permit for the composting facility, unless the discharger holds an approval or operational certificate for that composting facility.

…

[Emphasis added]

[11] Section 33 of the OMRR sets out how the new permit requirements in section 3.1 apply to a composting facility already in operation as of the date of the amendment. It states:

Transition — permit requirement under section 3.1

33(1) A discharger that is required under section 3.1(1) to hold a permit in relation to a composting facility that is operating on the date this section comes into force must apply to a director for a permit within 60 days after that date. [i.e., August 8, 2016]

(2) If a discharger described in subsection (1) fails to apply for a permit within the 60 day period referred to in that subsection, section 2(2) [exemption from section 6(2) and (3) of the Act] does not apply to the discharger until the application is submitted to the director.

(3) The director may specify a time by which a discharger that submits an application under subsection (1) must,

(a) under section 3 of the Public Notification Regulation, provide information respecting the application,

(b) under section 4 (1), (2) or (3) of the Public Notification Regulation, give notice of the application,

(c) under section 5 (4) of the Public Notification Regulation, post the application on a billboard,

(d) under section 6 (3) of the Public Notification Regulation, publish the application, or

(e) under section 6 (5) of the Public Notification Regulation, post the application in a post office.

(4) Section 2(2) [exemption] does not apply to a discharger described in subsection (1) until the requirement is met if the discharger fails to


(a) meet a requirement referred to in subsection (3) by the time specified by the director, or

(b) meet a requirement under the Public Notification Regulation by the time specified in that regulation.

(5) A discharger to which subsection (1) applies is exempt from section 3.1(1) until the date the director makes a decision in relation to the discharger's application under subsection (1) of this section.

[Emphasis added]

[12] Following the June 9th amendment to the OMRR, legal counsel for Revolution wrote to the Ministry to explain why Revolution’s facility does not require a permit under section 3.1. Counsel advised the Ministry that the facility does not discharge waste and, in any event, it already holds a “prior approval” from the Ministry for the facility. Regarding the latter, Revolution maintains that the December 19, 2012 email from Mr. Bourgeois accepting Revolution’s environmental impact study constitutes an “approval” for the facility under the Act.

[13] In a letter dated July 19, 2016, the Ministry responded. It advised that the OMRR amendment applies to Revolution’s facility, and that Revolution does not hold an “approval” in respect of the facility; therefore, the Ministry advised that it “expects” to receive an application for a permit prior to August 8, 2016.

[14] On August 4, 2016, Revolution submitted a permit application under protest. It used the Ministry’s six-page permit application form which asks for certain information under standard headings. Under the heading “purpose of the application”, Revolution states that the application is submitted pursuant to the amendment to the OMRR, and that it is “submitted on a without prejudice basis as set forth in the letters from … [its lawyers] to the Ministry of Environment …. This facility does not discharge any waste.”

[15] The headings related to “discharge” were left blank.

[16] In November and December of 2016, the Director requested additional information in relation to the application pursuant to her authority under the Public Notification Regulation, B.C. Reg. 202/94 (the “PNR”). Revolution responded to these requests, always adding that it already has an approval, does not require a permit under the OMRR, and is complying with the Ministry’s requests under protest.

[17] In a letter dated January 18, 2017, the Director wrote to Revolution advising that its permit application was complete, and the next step involves public and First Nations’ consultation. The Director addressed public notification of the application in a follow-up letter.

Public notification of the application

[18] In a letter dated January 19, 2017, the Director set out Revolution’s requirements to give notice of the permit application under the PNR, and imposed timelines for the notice requirements pursuant to her authority under section 33(3) of the OMRR. The Director also attached an “Environmental Protection Notice


template” which she advised could be used “as the ‘application’ for the purpose of the PNR”.

[19] Revolution requested a teleconference to address notice and other matters.

[20] A teleconference was held on February 3, 2017. In it, the parties agreed that, for the purposes of the trigger dates in the PNR regarding public notice, February 3, 2017 would be the accepted date of the permit application. However, the parties disagreed on the content of the notice that would be posted and published in accordance with the PNR. The Director advised Revolution that she would consider reasonable revisions to the Environmental Protection Notice template that she had provided.

[21] Between February 6th and 10th, there were various letter and email exchanges between the parties regarding the Environmental Protection Notice and the revisions.

[22] In an email dated February 10th, Revolution set out its position on the acceptable content for giving notice under the PNR. First, Revolution notes that the PNR requires that the “application” be published and, therefore, Revolution could publish its August 4, 2016 permit application in order to fully satisfy the requirements of the PNR. However, Revolution then states that, if it uses the Director’s Environmental Protection Notice template to give notice, then it cannot be required to say things in that notice that are not accurate or that are damaging to Revolution. Revolution provided a revised Environmental Protection Notice with acceptable language. That notice states that Revolution has an existing approval for the facility, and does not refer to the anticipated annual input of 125,000 wet tonnes of compostable material – it only refers to the 32,784 tonnes of compost that will be produced from the facility. Revolution argues that the annual input is neither relevant nor appropriate to the notice.

[23] The Director responded in the letter dated February 14, 2017, which is the subject of Revolution’s appeal.

The February 14, 2017 letter

[24] The letter states in full as follows:

Re: Revolution Organics LP (“Revolution”) Permit Application 108529; job # 352284 X Reference 104217

I write further to my letter of January 19, 2017 and Revolution’s response of February 6 and 10, 2017 and our recent discussions and correspondence regarding public notification requirements in relation to this matter.

Application and Environmental Protection Notice

I have reviewed the Environmental Protection Notice (“EPN”) that Revolution has submitted attached to your email to Mr. Van Hinte on February 10, 2017. The EPN that Revolution has submitted is not acceptable for the following reasons:


− The EPN as revised by Revolution contains a reference in the second paragraph to Revolution having “already received an approval” for the facility. This is not accurate. While the ministry acknowledges that Revolution takes the position that it has an “approval” for the facility, the ministry’s position, as it has stated previously, is that the acceptance of an environmental impact study report under section 23(2) of the Organic Matter Recycling Regulation (“OMRR”) is not an “approval” for the purpose of the Environmental Management Act. The reference to Revolution’s position of having already received an approval for the facility does not belong in the EPN and the ministry does not consider the EPN provided by Revolution to be an acceptable application for the purpose of the Public Notification Regulation (“PNR”).

− The EPN as revised by Revolution does not adequately reference the description, characteristics and volume of waste in accordance with PNR sections 2(1)(e), (f) and (g). The ministry’s position is that the EPN must reference the waste discharge of up to 125,000 wet tonnes of compostable materials per year. The discharge information must be included in the EPN in order to meet the requirements of section 2(1) of the PNR.

I have attached an EPN that addresses the above items and is acceptable to the ministry for the purpose of complying with the PNR and section 33 of the OMRR.

In addition, please be aware that the ministry continues to review Revolution’s permit application, and any permit that is issued will be based on all waste discharges (e.g. compostable materials, air contamination, effluent) that are applicable.

In your February 10 correspondence, you have also taken issue with the form of the EPN in that it is not the “actual application” form completed by Revolution which was submitted to the ministry on a “without prejudice” basis in August 2016. For practical reasons, the ministry accepts the one-page EPN for the purpose of providing public notification, as opposed to the six-page long application form. However, if Revolution wishes to use the six-page long application form for the purpose of providing public notification, this would be acceptable to the ministry provided that the application contains the information required by section 2(1) of the PNR. The application submitted by Revolution to the ministry on August 4, 2016 (and dated August 8, 2016) on a “without prejudice” basis does not meet the requirements of section 2(1) of the PNR. In particular:

− Revolution states on page 1 of the application that the facility does not discharge any waste, which is inaccurate and would need to be removed; and

− There is no information provided on page 4 under the headings “discharge source and associated details”, “rate of discharge” and


“contaminants or parameters in the discharge”, which must be filled in.

Therefore, for the purpose of complying with the PNR and section 33 of the OMRR, the ministry would accept the attached EPN, or the six-page application form with the information properly completed in accordance with the above.

Timelines

In my letter of January 19, 2017, there were timelines included for compliance with public notification requirements. Revolution requested an extension of 10-14 days on February 1, 2017. In addition, Revolution subsequently confirmed the date of application of February 3, 2017, which I will accept as the date for the purpose of calculating timelines under the PNR and section 33 of OMRR.

As such, taking this information into account, I have agreed to recalculate the timelines in my January 19, 2017 letter in accordance with the following (using the numbering in my January 19 letter):

− Section A(1) – Revolution must give notice of the application as set out in this section of the letter by February 24, 2017. Proof must be provided to a director within 30 days after the date the application was mailed or delivered.

− Section A(2) – Revolution must post the application on site no later than February 18, 2017, and provide a statement in writing to the director by March 3, 2017.

− Section A(2) – Revolution must post a copy of the application at the Canada Post Lytton office no later than February 24, 2017 and provide a statement in writing to the director by March 10, 2017.

− Section A(3) – Revolution must publish the application in the Ashcroft-Cache Creek Journal and the Bridge River Lillooet News by March 3, 2017, and provide the director with a full page tear sheet within 30 days of the date of publication as proof that the application was published.

All other requirements in my January 19, 2017 letter are unchanged and remain in force. Failure to comply with the requirements of the PNR and section 33 of the OMRR may result in compliance and enforcement action by the ministry.

[25] The timelines imposed by the Director in this letter, that are not established by the PNR, are the subject of a voluntary interim stay which remains in effect until seven days after this preliminary jurisdictional decision is released by the Board.


The Appeal

[26] On February 16, 2017, Revolution appealed the Deputy Director’s letter. Revolution identifies various errors of law and/or fact in the February 14th letter; specifically, that the Director erred by:

• determining that the facility does, or would, discharge waste for the purposes of the Act and the OMRR;

• determining that Revolution does not hold an “approval” in respect of the facility;

• determining that Revolution’s posting or publication of its application would not satisfy the posting, publication and notice requirements in sections 5 and 6 of the PNR;

• directing that Revolution:

i. may not post or publish the application it submitted for the purposes of the PNR;

ii. may not refer to the past “approval” in the posting or publication for the purposes of the PNR;

iii. must include an estimate of the volume of wet tonnes of compostable materials;

• requiring the posting or publication to contain information that Revolution considers to be false or misleading in a material respect;

• directing that Revolution post or publish a notice within deadlines that are unreasonable and impractical; and

• determining that Revolution’s failure or refusal to comply with the February 14th letter may result in compliance and enforcement action.

[27] Revolution asks that the decisions in the February 14th letter be set aside. In the alternative, Revolution asks the Board to allow it to post and publish its August 4, 2016 permit application as notice under the PNR, or provide notice in a format that it previously suggested.

The jurisdictional issue

[28] Not every decision made by an official within the Ministry is appealable to the Board. Section 99 of the Act defines the types of decisions that are appealable. It states:

99 For the purpose of this Division [appeals to the Board], “decision” means

(a) making an order,

(b) imposing a requirement,

(c) exercising a power except a power of delegation,


(d) issuing, amending, renewing, suspending, refusing, cancelling or refusing to amend a permit, approval or operational certificate,

(e) including a requirement or a condition in an order, permit, approval or operational certificate,

(f) determining to impose an administrative penalty, and

(g) determining that the terms and conditions of an agreement under section 115 (4) [administrative penalties] have not been performed.

[29] In order for the Board to have jurisdiction over an appeal, the Board must first be satisfied that the decision fits within one of the categories in section 99. In Imperial Oil Ltd. v. Ron Driedger, 2002 BCSC 219 [Imperial Oil], the Court held at paragraph 50:

… I agree with the analysis of the Board in McPhee, supra, that the meaning of the acts referred to in s. 43 [now section 99 of the Act] is to be found in the provisions of the Act. The powers and requirements referred to are the powers and requirements specified in the Act.

[Emphasis added]

[30] The Board affirmed the reasoning from Imperial Oil in the context of the Act in 455161 B.C. Ltd. v. Director, Environmental Management, (Decision No 2010-EMA-007(a), issued August 25, 2010)[“455161 B.C. Ltd.”]. In that case, the Board reviewed several of its previous decisions under the Waste Management Act, as well as the Court’s decision in Imperial Oil, and held as follows at paragraphs 21 and 25:

In all of those cases, the Board concluded that the legislature sought to limit the types of decisions that are subject to a right of appeal under the Act (and previously the WMA), and that it chose to do so by carefully wording the definition of “decision”. In addition, the Board concluded that the subsections in the definition of “decision” are not intended to overlap; rather, they can be related back to certain specific statutory provisions.

…

The principles from the Board’s previous decisions and the Court’s decision in Imperial Oil regarding the interpretation of the definition of “decision” are equally applicable to the present case. This Panel agrees that the meaning of the acts (or refusals to act) referred to in section 99 must be found in the provisions of the Act.

[31] In a letter dated February 17, 2017, the Board asked the parties to address whether the February 14th letter from the Director constitutes an appealable “decision” under section 99 of the Act.

The parties’ positions

[32] Revolution submits that, when the February 14th letter is considered as a whole, it is clear that it is a decision under section 99 of the Act. However, if the


letter can be broken down into elements, then the elements either constitute the imposition of a requirement under subsection 99(b) of the Act, or the exercise of a power under subsection 99(c) of the Act.

[33] In contrast, the Director submits that the only appealable decisions contained in the letter are the imposition of additional timelines under section 33 of the OMRR. However, the Director maintains that an appeal of these timelines is premature and unnecessary.

[34] Regarding the remainder of the letter, the Director submits that there are no appealable decisions; rather, the substance of the letter simply conveys the Director’s opinion that:

• Revolution’s version of the Environmental Protection Notice does not comply with the PNR and the OMRR; and

• Revolution’s proposed use of the August 4th permit application does not comply with the PNR.

[35] The Director also states that some of the content in her February 14th letter simply reiterates information the she previously communicated to Revolution in her July, 2016 letter; specifically:

• the OMRR amendment applies to Revolution’s facility;

• Revolution does not hold an approval in respect of the facility;

• Revolution must comply with the public notification and consultation requirements under the applicable legislation; and

• if Revolution does not comply with the legislative provisions, the Ministry may take compliance and enforcement action.

[36] The Director submits that these previous communications are not decisions under section 99 of the Act. However, if they are, the decisions had to be appealed within the 30-day statutory appeal period. As the appeal period has long since passed and the Board has no power to extend the time to appeal, such decisions would be out of time to appeal. Further, the Director submits that a decision cannot be made twice. Therefore, if these were appealable decisions, the Director’s reiteration of them in her February 2017 letter does not “restart” the appeal period; rather, the Director is functus officio.

[37] Both parties provided detailed arguments and numerous authorities in support of their respective positions on this preliminary issue, as well as affidavit evidence.

ISSUE

[38] The Board has addressed the following issue in this preliminary decision:

1. Whether the Director’s February 14, 2017 letter contains a “decision” as defined in section 99 of the Act, and therefore, is appealable.


RELEVANT LEGISLATION

The Act

100(1) A person aggrieved by a decision of a director or district director may appeal the decision to the appeal board. [Emphasis added]

[39] “Decision” is defined in section 99 as follows:

99 For the purpose of this Division, “decision” means

(a) making an order,

(b) imposing a requirement,

(c) exercising a power except a power of delegation,

(d) issuing, amending, renewing, suspending, refusing, cancelling or refusing to amend a permit, approval or operational certificate,

(e) including a requirement or a condition in an order, permit, approval or operational certificate,

…

The Regulations

[40] The following sections of the PNR are referred to in the February 14th letter. Additional sections of the PNR will be set out in the text of the decision, as required.

Application for a permit, approval or amendment

2(1) Every person who applies for a permit or approval must make an application on a form supplied by a director, sign and date the application and provide the following information:

(a) the name, address and postal code of the applicant;

(b) a clear description of the source and location of the waste, including any commonly known name of the plant, operation or storage facility;

(c) if applicable, the legal description of the land or the premises where the plant, operation or source and treatment works are or will be located;

(d) the legal description of the place where the waste is or will be discharged or emitted or the storage is or will be located;

(e) a description of the waste in general terms based on the origin or nature of the operation that produced it;

(f) the characteristics of the waste in specific terms including the content of potential pollution causing substances expressed in metric scientific units;

(g) the volume of material to be discharged, emitted or stored during a specific time period.


…

Duties of the applicant and director

4(1) Every person who applies for a permit or approval must give notice of the application as set out in Column 3 of Schedule A.

…

[41] Schedule A establishes the “Notification, Posting and Publication Requirements” for different applications made under the Act. For the permit application at issue in this case, Schedule A requires the following types of notification, posting and publication:

S = post on site

M = give notice to municipalities, regional districts and chairpersons of waste management planning committees

G = publish in British Columbia Gazette Part I at the applicant’s expense

N = publish in local newspaper(s) at the applicant’s expense

DISCUSSION AND ANALYSIS

Whether the Director’s February 14, 2017 letter contains a “decision” as defined in section 99 of the Act, and therefore, is appealable.

Revolution’s submissions

[42] Revolution submits that the Director’s position that some elements of the letter (i.e., the imposition of certain deadlines under section 33 of the OMRR) constitute a “decision” under section 99 of the Act, while other intertwined elements do not, is not an appropriate way to determine the jurisdictional question at issue. It submits the letter must be read as a whole.

[43] When read as a whole, Revolution submits that the letter requires Revolution to publish and post a notice which includes facts that Revolution considers to be untrue, on dates set by the Director, under the threat of compliance or enforcement action. Revolution submits that, to parse the letter into elements and consider whether those elements are “decisions”, would require the Board to limit its jurisdiction on an artificially formal basis. It submits that the courts have previously found this to be improper: Houweling Nurseries v. District Director of the GVRD et al., 2005 BCSC 894 [Houweling].

[44] Revolution submits that there are no meaningful differences between the parts of the letter that the Director concedes are “decisions” under section 99 of the Act, and those that are not. It submits that the letter, as a whole, imposes procedural and substantive requirements, some of which are enforceable under the Act. It submits:

… the same right is at issue for Revolution Organics: the right not to be compelled to post or publish a notice, in its own name, which


communicates facts that it believes to be untrue, on the dates set by the Director.

[45] Revolution does not specify which subsection of section 99 that the “whole decision” falls under. Instead, it adopts the following reasons of Ehrcke J. in Unifor Local 2301, v. British Columbia (Environmental Appeal Board), 2015 BCSC 1592 [Unifor] (appeal to the Court of Appeal under reserve):

35. … it strains the limits of interpretation of the English language to hold that the 2014 Letter of Approval was neither the making of an order, nor the imposition of a requirement, nor the exercise of a power, nor the issuing or amending of an approval, nor the inclusion of a requirement or condition in an order, permit or approval.

[46] However, in the event that the letter can be parsed in the manner advocated by the Director, Revolution submits that the disputed portions of the letter – i.e., the portions dealing with the form and content of the notice – either constitute the imposition of a requirement under subsection 99(b) of the Act, or the exercise of a power under subsection 99(c) of the Act.

i) Subsection 99(b) “imposing a requirement”

[47] Revolution submits that the Director’s letter, using imperative language, sets out the required form and content of the publications and postings. It submits that this constitutes the imposition of substantive requirements. Revolution points out that the Director’s letter uses words such as “must”, “all other requirements”, and “compliance and enforcement action”. It submits that this language indicates that the Director is not merely informing Revolution of its obligations under the PNR; rather, upon a careful review of the February 14th letter, the Director is clearly rejecting Revolution’s proposed form of notice under the PNR and the OMRR, and requiring Revolution to post and publish the Director’s version of the Environmental Protection Notice, or an amended version of the permit application. Revolution submits that there is no indication in her letter that the Director’s findings are preliminary in nature. Revolution submits that the contents of the Director’s letter has legal consequences and “substantively impacts” the form of notice and content that Revolution is permitted to provide.

[48] Revolution submits that the Director is empowered to impose requirements on the manner in which an applicant posts or publishes notice of its application under sections 5(4), 6(2), 6(5), 6(9) 8(1), 8(2), and Schedule A of the PNR. These sections provide as follows:

Posting requirements

5(4) Despite any posting instructions in Schedule A to the contrary, a director may require an applicant to post the application on a billboard.

Publication and notice requirements

6(2) If Schedule A requires that an application be published in one or more local newspapers, a director will specify the newspaper or newspapers in which the application must be published.


(5) If, in the opinion of a director, newspaper coverage is insufficient to notify local residents about the application, the director may require the applicant to post a copy of the application in one or more post offices serving the area affected by the application.

(9) A director may require the applicant to

(a) mail or deliver a copy of the application to any other person, agency or group who, in the opinion of the director, would have an interest in the application, and

(b) provide proof to the director, within 30 days after the date of the application, of the mailing or delivery required by paragraph (a).

Clarification of application

8(1) The applicant must, if required by a director, offer to meet with any person or persons who, in the opinion of the director, may be adversely affected by the discharge, emission or storage, to explain and clarify the intent of the application and to describe the discharge, emission or storage and its potential effect on the receiving environment.

(2) The director may specify the form, location, time, date, agenda and any other details of the meeting required by subsection (1).

[49] Revolution further submits that the Director has an “overriding power” to control the method and manner of the notification under the following portions of section 4 of the PNR:

4(1) Every person who applies for a permit or approval must give notice of the application as set out in Column 3 of Schedule A.

(2) Every person who applies for an amendment to a permit or approval must give notice of the application as set out in Column 4 of Schedule A.

(3) Despite subsections (1) and (2), if, in the opinion of a director, any method of giving notice as specified in Schedule A is not adequate or practical, the director may, within 14 days of receipt of the application, require an applicant to give notice of the application by another method that, in the opinion of the director, is more effective. [Revolution’s emphasis]

[50] Revolution submits that the Director was empowered to set the procedural and substantive requirements in the February 14, 2017 letter through, inter alia, the operation of the provisions set out above. Accordingly, the Director imposed requirements upon Revolution within the meaning of section 99(b) of the Act.

ii) Subsection 99(c) “exercising a power”

[51] Revolution further submits that, when the Director wrote the letter, she was imposing requirements and was also exercising powers within the meaning of subsection 99(c) of the Act.

[52] Revolution submits that the PNR and the OMRR empower the Director to determine the manner and timeline in which an applicant must provide, publish or post a notice and – by necessity – the content of that notice. It argues that the Director was exercising powers in her letter by directing Revolution as “a matter of


duty, liability or other legal oblation” to do certain things, i.e., publish and post the Director’s required form of notice, at certain times.

[53] Revolution notes that the Director’s use of phrases such as “the ministry does not consider”, “the only notice that is acceptable to the ministry”, and “the ministry accepts” indicate that the Director considered that she was imposing, and intended to impose, requirements in the course of exercising the powers given to her. Accordingly, Revolution submits that the Director has exercised power under the Act and its related regulations.

The Director’s submissions

[54] The Director submits that Revolution’s interpretation of section 99 is flawed. She submits that Revolution’s interpretation:

(a) is unreasonably broad and fails to take into account the statutory context in which each of the enumerated criteria operate;

(b) renders the specific enumeration of what constitutes a decision meaningless, which cannot be the intent of the drafters; and

(c) renders the specific enumeration of multiple criteria [in the definition of decision] redundant. For example, if Revolution’s broad interpretation of “imposing a requirement” is accepted, it would necessarily encompass “making an order” and “issuing or amending a permit”. The drafters of the legislation should be presumed to have intended each of these criteria to each function on its own. …. (page 14)

[55] The Director submits that the best interpretation of the legislation gives meaning to each of the prescribed criteria in subsections 99(a) through (e), consistent with each criterion’s contextual usage in the Act. When interpreted this way, with the exception of the imposition of deadlines under section 33 of the OMRR, the Director submits that it is clear that the types of statements in the February 14th letter are not appealable decisions.

[56] Regarding the phrase “imposing a requirement”, the Director notes that the word “requirement” is not defined in the Act. However, the Director notes that the Act refers to the phrase “imposing a requirement” in specific circumstances, including: requirements in relation to remediation (section 1), when amending a permit (section 16), relating to recyclable wastes (section 22), and others. Nothing in the Act suggests that what the Director has said in the February 14th letter was “imposing a requirement”. Rather, the Director submits that any requirements referred to in the letter, aside from the section 33 deadlines, were imposed by the OMRR, the Act and the PNR already; they are not an exercise of her discretion to impose a statutory discretion to impose a requirement.

[57] The Director submits that her statements in the February 14th letter regarding the form and content of notice are, in essence, her opinions about the pre-existing requirements in the PNR and OMRR.


[58] The Director also submits that her expectations regarding compliance with pre-existing legislative requirements are, similarly, not appealable. She states that this was confirmed in Britannia Mines and Reclamation Corp. v. British Columbia (Ministry of Water, Land and Air Protection), [2002] B.C.E.A. No. 51 (Q.L.) [Britannia]. In that case, the Board concluded that a letter by the Director of Waste Management to the appellant providing detail and clarification on the Director’s “regulatory expectations” was not an appealable decision under section 43 of the Waste Management Act, the predecessor section to section 99 of the Act.

[59] Further, in Graham v. British Columbia (Ministry of Water, Land and Air Protection), [2006] B.C.E.A. No. 3 (Q.L.) [Graham], the Director of Waste Management refused to process the appellant’s application to be added to the roster of professional experts. The Board considered whether this was an appealable decision, and concluded that it was not. The Board found that the director’s letter in that case was more appropriately characterized as a determination of whether pre-existing policy requirements governing such applications had been met, rather than the imposition of a requirement.

[60] The Director submits that the present case is similar to Graham in that her letter contains the expression of her opinions about whether pre-existing legislative requirements have been met by Revolution, and of possible consequences if those pre-existing requirements are not followed.

[61] Finally, with the exception of the section 33 deadlines, the Director submits that the letter does not constitute an “exercise of power”. She notes that “power” is not defined. The Director argues that not every “alteration” of Revolution’s “rights, duties, liabilities, or other legal relations” constitutes an exercise of power within the meaning of section 99(c) of the Act; rather, the Director submits that the interpretation of “exercising a power” ought to be constrained to its use in the Act. She analyzes various sections in the Act which result in an exercise of power under the Act, and submits that none of her statements regarding the form and content of the notice constitute the exercise of a power. In support, the Director refers to Atlantic Industries Ltd. v. British Columbia (Regional Waste Manager) (2002), 46 C.E.L.R. (N.S.) 226 [Atlantic].

[62] In Atlantic, the Board concluded that the Regional Waste Manager’s letter advising that the appellant was not in compliance with an order, giving an opportunity to demonstrate compliance, and threatening regulatory action, was not a “decision” within the meaning of section 43 of the Waste Management Act.

[63] In a concurrent decision from the Board in Atlantic Industries Ltd. v. British Columbia (Regional Waste Manager) (2002), 46 C.E.L.R. (N.S.) 236, the Board similarly concluded that the Regional Waste Manager’s letter concluding that the appellant was not in compliance with its obligation to contribute on an ongoing basis to the costs of remediation, providing the appellant with an opportunity to provide evidence that it was making a reasonable contribution towards the ongoing costs of remediation of a site, and threatening regulatory action, was not an order, the imposition of a requirement, or an exercise of power, given that there was no choice of one course of action by the manager over another.


[64] In light of these previous decisions, the Director submits that her statements in the February letter that Revolution was not in compliance with the OMRR, the PNR and the Act, providing Revolution with an opportunity to become compliant with such legislation, and informing of future potential regulatory action are not appealable decisions under the Act.

[65] Ultimately, the Director submits that Revolution’s interpretation of the words and phrases in section 99 is so broad that “virtually any aggrieved person may appeal any type of ‘decision’ made by the Director.” The Director submits that, if this was the legislative intent, it could have been achieved very simply, and the seven subsections of section 99 would not have been required: Shell Canada Products Ltd. v. British Columbia (Ministry of Environment), [2007] B.C.E.A. No. 7 (Q.L.), at paragraph 39.

[66] Moreover, the Director submits that, if Revolution’s argument is accepted, then virtually all of the letters that the Director exchanged with Revolution in this matter contained appealable decisions. This could not be the intent of the Legislature when it created the definition of appealable decision in section 99 of the Act.

[67] Finally, the Director notes that the only appealable decision in the February 14th letter is her decision to impose the amended timelines under section 33(3) of the OMRR. However, she submits that, as she will consider all reasonable requests for extensions of time supported by evidence of their necessity, an appeal of those deadlines is premature and unnecessary.

The Panel’s findings

[68] It is clear that the detailed definition of “decision” indicates a legislative intent to narrow the categories of decisions that may be appealed. The Board agrees with, and adopts, its previous findings that a statutory decision-maker’s opinions and/or description of expectations, do not meet the definition of “decision” in section 99 of the Act: there must be some exercise of authority under the legislation that relates to a subsection of section 99. However, the Panel also accepts the Court’s direction that the Board should consider the nature of the decision and the legislation at issue, and not decline its jurisdiction on a “purely formal or technical basis” (Houweling).

[69] Revolution submits that, to determine whether the February 14th letter is an appealable decision, the Panel ought to consider the substance of the letter “as a whole”; that the Panel should not accept the Director’s “parsing” of the letter’s contents. It submits that parsing the letter’s contents results in a formalistic approach that has been rejected by the courts. Although Revolution’s approach sounds reasonable, it falls into the category of being “easier said than done”.

[70] Unlike a permit, approval or an order made under a specific section of the legislation, a letter is not an instrument that is recognized or identified in section 99 as being appealable. While a letter may, indeed, communicate a decision that is appealable under the Act, it may also convey information or decisions that are not appealable. Thus, as noted by the Director, it is the contents of a letter that must be examined to determine if there are any decisions that have been made and are,


therefore, appealable. This is consistent with the Board’s approach in previous cases: Graham; Atlantic; and Britannia Mines and Reclamation Corp. v. British Columbia (Ministry of Water, Land and Air Protection), [2002] B.C.E.A. No. 51 (Q.L.)).

[71] It is apparent from the correspondence before the Panel, and highlighted in Revolution’s Notice of Appeal, that the real question that it seeks to have decided is whether it requires a permit at all. Since section 3.1 was added to the OMRR, Revolution has taken the position that it does not require a permit because it has a prior approval and, in any event, it does not discharge “waste”. However, the Ministry has never made a clearly appealable order requiring Revolution to obtain a permit, nor taken any appealable enforcement action that would place this issue squarely before the Board. Consequently, Revolution seeks to have these matters addressed by the Board by appealing the February 14th letter regarding notice.

[72] The February 14, 2017 letter is the culmination of a number of letters between the parties. Revolution applied for a permit under protest. The Director eventually accepted the application as complete, despite the fact that it does not include information about discharge. Once the Director accepted the permit application as complete, the notice requirements in the PNR came into play.

[73] There is no dispute that the PNR requires an applicant for a permit to give notice, that the PNR specifies the type of notice to be given, or that the Director may specify the deadlines for certain notice requirements under section 33(3) of the OMRR. The question which led, in part, to the February 14th letter, is whether the Director has any authority under the legislation to address the form and content of that notice.

[74] Revolution states in its February 10th email that the legislation requires its permit application to be posted (i.e., the August 4, 2016 application). The PNR and the OMRR only refer to “the application”. These regulations require Revolution to “give notice of the application”, to post “the application”, and to publish “the application”. However, the Director states in her February 14th letter that a one-page Environmental Protection Notice may be used provided that it includes certain content, or a modified version of Revolution’s accepted permit application. If Revolution’s initial submission is correct that the PNR and the OMRR requires it to post its accepted August 4th application, then, arguably, the Director has no authority to specify or approve the form and content of the notice: it is the approved permit application that must be posted and published.

[75] Moreover, if the Director does not have any statutory authority to specify or approve the form and content of the notice required under the PNR then, arguably, her letter cannot be characterized as imposing a requirement regarding the form and content of notice, the making of an order, or the exercise of a power under section 99 of the Act.

[76] However, it is apparent from the language used by the Director in her February 14th letter that she believes that she does have authority to specify or approve the form and content of the notice. Based upon the wording in her letter, it appears that the Director interprets the PNR to allow a new or different “application” to be posted or published as notice pursuant to section 2(1) of the


PNR, not simply the permit application originally filed pursuant to section 3.1 of the OMRR. The Director states in the letter that a one-page Environmental Protection Notice “is acceptable to the ministry for the purpose of providing public notification”. Thus it is clear that she does not interpret the words “application” in the PNR as referring back to the original permit application. She will consider an Environmental Protection Notice as an “application” for the purposes of the PNR and OMRR, provided that the content is acceptable to her.

[77] This is also evident from the second bullet in the February 14th letter, wherein the Director states:

The ministry’s position is that the EPN must reference the waste discharge of up to 125,000 wet tonnes of compostable materials per year. The discharge information must be included in the EPN in order to meet the requirements of section 2(1) of the PNR.

[78] Section 2(1) of the PNR states, “Every person who applies for a permit or approval must make an application on a form supplied by a director, sign and date the application and provide the following information …”.

[79] In light of these statements, it appears that the Director interprets this reference to an “application” in section 2(1) to be specific to the notice provisions in the PNR, rather than a reference to the originating application for a permit in the OMRR or the Act, such as the permit application supplied by Revolution on August 4th.

[80] Regardless of whether the legislation actually contemplates two different “applications” (an original permit application and an application for the purpose of Notice under the PNR), it is apparent from the wording of her letter that the Director believes that there is a difference, and that she has authority to determine the form and content of an application for the purposes of notice. The Director states that the Environmental Protection Notice that Revolution provided “is not acceptable” and then goes on to explain why it is not acceptable, and what must be included in order to be acceptable. The Panel finds that these statements go beyond the mere expression of opinions or expectations regarding the legislative requirements.

[81] The question of whether the Director has the authority to specify the form and content of the notice required under the PNR is something that cannot be decided in this preliminary decision: it is a question that goes to the Director’s jurisdiction to make the decision, not to the Board’s jurisdiction over the appeal. While Revolution identified a number of sections in the PNR which, it suggests, may give the Director the authority to address form and content of the notice, the Panel finds that none of these sections provide such authority.

[82] Therefore, while it is not clear that the Director has the jurisdiction to specify the form and content of notice, it is apparent that she believes that she does, and has imposed certain requirements on the content of the appropriate notice. Unless it is clear that the disputed portions of the February 14th letter are not decisions under section 99, the Board should not refuse to hear the subject matter of the appeal for lack of jurisdiction. This is what distinguishes this case from many of the Board’s previous cases which found that the contents of a letter were not


appealable. In those cases, there was no clear authority for the “decision” under the legislation, or the decision clearly did not fit within a subsection of the definition of “decision”.

[83] Further, in the present case, there is no dispute that the timelines established by the Director under section 33(3) of the OMRR are appealable. Those timelines are as follows:

− Section A(1) – Revolution must give notice of the application as set out in this section of the letter by February 24, 2017. Proof must be provided to a director within 30 days after the date the application was mailed or delivered.

− Section A(2) – Revolution must post a copy of the application at the Canada Post Lytton office no later than February 24, 2017 and provide a statement in writing to the director by March 10, 2017.

− Section A(3) – Revolution must publish the application in the Ashcroft-Cache Creek Journal and the Bridge River Lillooet News by March 3, 2017, and provide the director with a full page tear sheet within 30 days of the date of publication as proof that the application was published.

[84] In these paragraphs, the Director imposed requirements under subsections 33(3)(b),(d) and (e) of the OMRR and section 6(5) of the PNR.

[85] However, the Panel agrees with the Director that the timelines set for Revolution to “post the application on site no later than February 18, 2017, and provide a statement in writing to the director by March 3, 2017” (set out in the first “A2” in the letter), are not appealable decisions. These timelines are required by section 5(1)(a) of the PNR. It is a legislated requirement and the Director is simply providing the calculation for Revolution as a courtesy. Section 5(1) of the PNR states:

Posting requirements

5(1) If Schedule A requires that an application be posted, the applicant must do all of the following:

(a) within 15 days after the date of the application [in this case the agreed date of the application was February 3, 2017], post a readable copy of the application in a conspicuous place at all main road entrances to the property;

(b) keep the copy posted for a period of not less than 30 days;

(c) state in writing to a director the date the copy of the application was posted.

[Emphasis added]

[86] With respect to the timelines that are appealable decisions, the Panel does not agrees with the Director that an appeal of them is premature or unnecessary in the circumstances. Revolution has appealed those timelines as unreasonable, and argues that the Director lacks the jurisdiction to impose them in the first place. The


Panel is not prepared to reject the appeal on the basis that the appealable timelines may be amended by the Director.

[87] Accordingly, with the exception of the timelines set by section 5(1)(a) of the PNR, the Director’s decision to impose timelines under section 33(3) of the OMRR, and her decision to specify the form and content of the notice under the PNR, are appealable decisions. In making this finding, Revolution will be free to argue, as a preliminary matter during the hearing, that the Director had no authority to: (a) require it to post any of these notices as a permit was not required under section 3.1 of the OMRR; and (b) that the Director has no authority to specify the form and content of the notice under the PNR.

DECISION

[88] The Board has considered all of the evidence and submissions provided by the parties, whether or not specifically reiterated herein.

[89] For all of the reasons set out above, the Board finds that the Director’s letter dated February 14, 2017 contains some appealable decisions as defined in section 99 of the Act.

[90] Accordingly, an appeal may proceed on the limited basis set out above.

“Alan Andison”

Alan Andison, Chair Environmental Appeal Board

April 13, 2017

Documents

Fourth Floor 747 Fort Street Victoria British Columbia ... · to Revolution. Revolution provided a revised Environmental Protection Notice with acceptable language. That notice states