Meaning of “Directly Affected” – Environmental Protection and Enhancement Act
This was an appeal of a judicial review upholding a decision of the Alberta Environmental Appeals Board (“Board”). The Board refused to hear an appeal of an approval granted by the designated director of approvals (the “Director”) permitting the respondent Secure Energy Services Inc. (“Secure Energy”) to accept and dispose of certain naturally occurring radioactive material (sometimes referred to as “NORM”) in its Pembina Landfill near Drayton Valley, Alberta.
The appellant Normtek Radiation Services Ltd. (“Normtek”) sought judicial review of the Board’s decision and an order quashing it on the ground that the Board employed an unduly restrictive, and therefore unreasonable, interpretation of the phrase “directly affected” in sections 91(1)(a)(i) and 95(5)(a)(ii) of the Environmental Protection and Enhancement Act (the “EPEA”). Normtek’s application for judicial review was dismissed on the basis that the Board’s finding that Normtek was not directly affected by the Director’s decision was reasonable.
The Court of Appeal (the “Court”) allowed Normtek’s appeal of the order of the judicial review judge, and remitted the matter back to the Board to decide the matter of Normtek’s standing to appeal the Director’s decision. The Court held that both the Board and the judicial review judge adopted an unreasonable and unjustifiably restrictive interpretation of the phrase “directly affected”. It also found that section 95(5) of EPEA does not confer jurisdiction on the Board to hear appeals of Directors’ decisions by persons who are not directly affected by those decisions.
Application for Director’s Approval
The process which led to the appeal began with Secure Energy applying to the Director for approval of an amendment to its existing Class I landfill approval. The amendment was sought to permit the receipt of concentrated naturally occurring radioactive material at Secure Energy’s Pembina landfill northwest of Drayton Valley.
Normtek’s Statement of Concern
The EPEA provides that any person who is directly affected by a Director’s decision may submit to the Director a written statement of concern setting out that person’s concerns with respect to the decision. The Court noted that the appellant Normtek is in the business of decontaminating naturally occurring radioactive material which become unnaturally accumulated or concentrated in oilfield waste or on oilfield equipment as a consequence of oil and gas extraction and production operations. Normtek then disposes of the radioactive material either in an approved landfill or in a secure subterranean geological formation, depending on the level of the material’s radioactivity.
Normtek responded to Secure Energy’s application for approval by submitting a statement of concern to the Director indicating its concerns with the proposal to landfill radioactive waste material with a radioactivity concentration of higher than 5-10 Bq/g rather than dispose of it in a subterranean geological formation. Secure Energy’s proposal was to landfill NORM up to 70 Bq/g. A Bq or Becquerel is a measure of radioactivity. A Bequerel is one nuclear transformation or disintegration per second. Normtek argued that generally-accepted industry standards and national and international guidelines suggest that Secure Energy was proposing to landfill radioactive wastes that ought properly to be disposed of in a secure subterranean geological formation.
Normtek contended that the landfilling of naturally occurring radioactive material which becomes concentrated in oil field waste is only appropriate for low radioactivity level material (5-10 Bq/g). Higher radioactivity level NORM, such as that proposed to be landfilled at Secure Energy’s Pembina Landfill (up to 70 Bq/g), Normtek submitted, is typically sent for geological disposal in salt caverns in Saskatchewan. Normtek’s statement of concern also pointed to the lack of a provincial regulatory regime for NORM.
In response to a question from the Director, Normtek acknowledged that it did not have any land holdings in the vicinity of the landfill, but submitted that factors other than ownership of land near the proposed activity can give rise to being directly affected. Normtek submitted that an approval would change the way NORM disposal was currently being conducted. Normtek argued that the approval would give Secure Energy a competitive advantage over anyone in the business of disposing high activity naturally occurring radioactive material because Secure Energy proposed to simply dispose of such radioactive waste in its landfill, rather than manage it in accordance with what Normtek submitted were generally accepted best practices. Normtek submitted if the applied-for approval was given, high level radioactive materials which had hitherto only been permitted to be disposed of in underground geological formations would now be allowed to be disposed of near the surface.
Alberta Environment’s District Approvals Manager (on behalf of the Director) responded by stating that Normtek’s place of residence was outside of the area of environmental impact associated with the proposed project. Normtek was therefore not considered directly affected, and its submission was not considered a statement of concern.
Director’s Decision (Approval)
The Director issued an approval amending Secure Energy’s landfill approval to permit it to receive and dispose of NORM waste that did not exceed certain prescribed maximum concentration limits (70 Bq/g) as proposed by Secure Energy. The approval also required Secure Energy to operate the landfill in accordance with the “Canadian Guidelines for the Management of Naturally Occurring Radioactive Materials” (“Guidelines”). Among other things, the Guidelines set maximum concentration acceptance limits for NORM dispersed in soils and other media.
The Court noted that the Director’s approval expressly required the approval holder to operate its landfill in accordance with these Guidelines. Yet the Director’s approval also expressly prescribed certain radioactivity limits for materials accepted by the landfill which appeared to be expressed in a multiple of the concentration limits (10 times the concentration limits) for exempt material set out in certain International Atomic Energy Association Regulations. Normtek’s position was that the federal Guidelines and the so-called International Atomic Energy Association Regulations were violated by the very terms of the approval which purported to incorporate them.
Normtek’s Appeal of Director’s Decision and Environmental Appeal Board’s Decision on Standing
Normtek filed a notice of appeal of the Director’s decision approving the acceptance of NORM at Secure Energy’s Pembina Landfill. Following further submissions on standing, the Board’s decision was that Normtek did not provide sufficient evidence to demonstrate that it was directly affected by the amending approval. The Board’s reasons were that Normtek’s concerns were primarily commercial or economic and that Normtek failed to demonstrate that its use of a natural resource would be affected by the amending approval.
Judicial Review of the Environmental Appeals Board’s Decision on Standing
Normtek’s application for judicial review was dismissed. The reviewing judge found that the Board’s interpretation and application of the phrase “directly affected” in the EPEA was reasonable. The reviewing judge also found that the EPEA does not permit a person who is not directly affected by a decision of the Director to appeal a Director’s decision.
Court of Appeal Analysis
The Court found that the Board’s interpretation of “directly affected” as requiring the would-be appellant to establish that the Director’s decision would harm the appellant’s use of a natural resource near the approved activity is not only inconsistent with the EPEA, but also is not supported by many of the Board and court decisions which the Board cited. The Court found that the Board and the chambers judge were unreasonable in concluding that an adverse impact cannot qualify a person as being “directly affected” unless the adverse impact is on the appellant’s actual use of a natural resource near the activity which the Director has approved.
The Court noted that the economic interest which Normek argued was directly affected was based on its interest in ensuring that naturally occurring radioactive materials are managed in accordance with generally accepted regulatory standards to which it said it was required to adhere. Properly understood, Normtek’s concern was as much regulatory concern as it was an economic or commercial concern. The Court also stated that Normtek’s standing argument was as much directed at the Director’s decision as it was at the activity which Secure Energy obtained approval to engage in. The “interest” which Normtek argued was directly affected was its interest in ensuring radioactive materials are managed in a manner which it claimed complied with generally-accepted regulatory standards which it was required to observe.
The Court noted that the Environmental Appeals Board is not a regulator like some of Alberta’s energy boards. The Board is essentially an independent commission of inquiry reporting to the Minister. It was established to provide the Minister with independent and expert advice with respect to such regulation by reporting to the Minister a summary of the representations which were made to it and any recommendations it might have as a result of those representations (s 99(1)).
The Court stated that one of the goals of the EPEA when it was introduced was to achieve better environmental decision-making. The Board process was set up to help achieve that. By granting standing to those directly affected by Directors’ decisions, the Minister receives the benefit of additional scrutiny which, in the case of directly affected industry participants, provides the Minister with a practical understanding of the effects of conditions of approvals, which industry participants are in a unique position to provide. The integration of environmental protection and economic impacts is one of the purposes of the EPEA (ss 2(b) and 2(c)) and hearing appeals by those impacted economically helps the Minister achieve that purpose.
The Court found that the decisions of the Board and the reviewing judge that the economic effects of an approval are not enough to ground standing unless the economic effects can be linked back to the environment were unreasonable. However, the Court found that in any event, Normtek did present evidence which linked the economic impact on it back to the environment. That evidence was not dealt with by the Board, because the Board failed to consider relevant evidence.
The Burden of Demonstrating that a Person is “Directly Affected”
The Court noted that the Board relied on Rule 29 of its Rules of Practice, suggesting that it is clear that the onus is on the appellant to prove that it is directly affected. The Court held that the only onus this rule imposes is to adduce evidence in support of one’s position, which Normtek did. Furthermore, the onus on the appellant, when its standing is challenged, is not to prove conclusively that it is directly affected, but to establish a reasonable possibility that it will be directly affected by the Director’s decision.
Discretion to Hear an Appeal by a Person Not Directly Affected
The Court held that the Board does not have the discretion or jurisdiction to hear public interest appeals by a person who is not directly affected. An activity the Director approves may directly affect a large segment of the public which potentially might make the class of persons directly affected very large; but that is not the same as granting standing to a person who has been found not to be directly affected. The EPEA clearly does not confer jurisdiction on the Board to grant public interest standing to a party who the Board finds is not directly affected. Nor does current jurisprudence confer such jurisdiction on administrative tribunals in the absence of clear statutory authority.
The Court found the Board’s interpretation of “directly affected” in the EPEA too restrictive, and remitted the matter of Normtek’s directly affected status to be decided by the Board. The Court noted that the Board must determine whether it is of the opinion that Normtek is directly affected by the decision of the Director. The Court expressed no view on that issue, but noted that the Board must not decide the issue employing the restrictive interpretation of “directly affected” which it employed in this case. It must decide the issue having regard to the provisions of the EPEA and the evidence relevant to the determination to be made.
The appeal from the judicial review judge’s decision was allowed on the issue of the Board’s interpretation of “directly affected” in section 91(1()(a)(i) of the EPEA. The appeal from the judicial review judge’s decision on the jurisdiction of the Board to entertain appeals from persons not directly affected was dismissed.