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ENVIRONMENTAL LEGISLATION - Approvals licences and orders - Hazardous waste - Landfill sites

Monday, February 08, 2021 @ 9:48 AM  

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Appeal by Normtek Radiation Services from a judicial review judgment upholding a decision of the Alberta Environmental Appeals Board refusing to hear an appeal from a waste disposal approval. The respondent, Secure Energy Services, received an amendment to its existing landfill approval from the designated Director to accept and dispose of certain naturally occurring radioactive material. The appellant was in the business of decontaminating such material from oilfield waste and equipment. The appellant took the position that the approval for disposal in a landfill of material at the specified level of radioactivity was inconsistent with generally accepted industry standards and national and international guidelines mandating disposal of such materials in a secure subterranean geological formation. The Board declined to hear the appellant’s appeal of the approval on the basis it was not directly affected by the Director’s decision, as it raised concerns that were primarily economic and failed to demonstrate that its use of a natural resource would be affected. The appellant sought judicial review, submitting that the Board employed an unduly restrictive interpretation of “directly affected”. The reviewing court held that the Director’s interpretation was reasonable, and that the Environmental Protection and Enhancement Act did not confer a discretionary authority on the Board to hear an appeal by a person not directly affected based on a general public interest standing. The appellant appealed.

HELD: Appeal allowed in part. The Board and the judicial review judge both adopted an unreasonable and unjustifiably restrictive interpretation of the phrase “directly affected” that did not accord with the Environmental Protection and Enhancement Act. Limiting the interpretation to impacts upon an appellant’s use of natural resources affected by the activity was not supported by a plain reading of s. 91(1)(a)(i) of the Act or by the jurisprudence. The Act contemplated standing to appeal based on potential impairment of one’s health, safety or property, regardless of whether use or enjoyment of the environment or a natural resource was likely to be impacted. In addition, the Board unreasonably failed to consider relevant evidence, as the appellant’s concern regarding the approval was as much regulatory as it was economic or commercial. The Board’s reasons were not transparent enough to enable proper judicial review. The matter of the appellant’s directly affected status was remitted to the Board. Otherwise, the Board and the judicial review judge properly found that s. 95(5) of the Act did not confer jurisdiction for the Board to hear an appeal from a Director’s decision by persons not directly affected by such decisions.

Normtek Radiation Services Ltd. v. Alberta (Environmental Appeals Board), [2020] A.J. No. 1383, Alberta Court of Appeal, B.K. O'Ferrall, J. Strekaf and R. Khullar JJ.A., December 11, 2020. Digest No. TLD-February82021001