Environmental Appeal Board

Size: px

Start display at page:

Download "Environmental Appeal Board"

Lionel Franklin
5 years ago
Views:

1 Environmental Appeal Board APPEAL NO. - 95/32 WASTE In the matter of an appeal under section 28 of the Waste Management Act, S.B.C. 1982, c. 41 BETWEEN: Peter and Nancy Van Der Wal APPELLANT AND: Deputy Director of Waste Management RESPONDENT BEFORE: A Panel of the Environmental Appeal Board David Brown, Chair Sheila Bull, Member Elinor Turrill, Member DATE OF HEARING: May 14, 1996 PLACE OF HEARING: Port Coquitlam, British Columbia APPEARING: For Appellant Audrey Vandervelden, Counsel For Respondent Dennis Doyle, Counsel BACKGROUND The subject matter of this appeal is an order that was made by the Deputy Director of Waste Management, R. J. Driedger, on December 14, 1995 as amended by letters dated December 20, 1995 and January 17, That order includes the following provisions: 1. Access to the hollow on the Hide-Away property shall be provided over the Van Der Wal property in order to carry out the remedial work. 2. The remedial work is to be physically carried out on the Hide-Away property by Mr. Amstutz, not Mr. Van Der Wal. The Order is directed at two parties; namely, Peter and Nancy Van Der Wal and Amstutz Contracting Ltd. The order (subsequently referred to in this decision as the "1995 Order") was appealed by Peter and Nancy Van Der Wal. It was not appealed by Amstutz Contracting Limited. The Van Der Wal's property is located at Lougheed Highway in Maple Ridge, B.C. It is an "L" shaped property. It is referred to in this appeal as the Van Der Wal Property. The other property which is primarily concerned in this appeal is the

2 APPEAL NO. 95/32 WASTE PAGE 2 actual site of the proposed remedial work - it is the Hide-Away Motel Property (the "Hide-Away Property"). It is located on the inside part of the "L" - to the west and north of the "L" of the Van Der Wal Property. Mention is also made in the order of the property to the west of the Van Der Wal Property and the Hide-Away Property; namely, the Winter's Property. The area which is the primary subject matter of this appeal is a triangular depression in the south-east corner of the Hide-Away Property. This is the hollow referred to in paragraph 3 of the 1995 Order - this triangular depression is in this decision subsequently called the Hide-Away Triangle. Although the 1995 Order directs fill to be placed on the Hide-Away Property, for an unknown reason the Hide-Away owners were not served with it. The Van Der Wal's have been placing fill on their property for over 20 years. Fill was also placed on the Hide-Away Property prior to August, 1991 because of a mistaken belief as to the location of the boundary line between it and the Van Der Wal Property. In August, 1991 the Van Der Wals determined the true location of their boundary line. In September, 1991 Amstutz Contracting Limited and Peter and Nancy Van Der Wal were granted approval to discharge land clearing debris, refuse, sawmill woodwaste, concrete and brick, on the Van Der Wal Property (this approval is subsequently referred to in this decision as the "1991 Approval"). This work was carried out until sometime in The Van Der Wals then completed the landscaping of their property and the roadway on their property accessing the fill site ceased to exist. The effect of the fill work over the years on the Van Der Wal Property and another adjoining property (including the fill work done pursuant to the 1991 Approval) was to create or at least accentuate the depression of the Hide-Away Triangle. This depression is surrounded by higher land on all four sides. The 1995 Order, if carried out, would eliminate this depression. The ground level of the south-east corner of the Hide-Away Property would be raised to a level above the ground level of that portion of the Van Der Wal Property to the south. STATEMENT OF POINTS The following are paragraphs 1 to 7 of the Respondent's Statement of Points. It is quoted almost in its entirety in this decision to give focus to the issues. 1. Amstutz Contracting Ltd. made application for an approval under the Waste Management Act to deposit demolition and land clearing debris on land at Lougheed Highway, Maple Ridge, B.C. (the "landfill site") more particularly known and described as Parcel A of Lot 409, Group One, New Westminster District Plan 9606.

3 APPEAL NO. 95/32 WASTE PAGE 3 2. An approval was granted to Amstutz Contracting Ltd. and Peter and Nancy Van Der Wal on September 25, 1991 to cover the period September 15, 1991 to December 15, Waste was deposited at the landfill site and onto adjoining lands (the Winter s property) in contravention of the terms of the approval. Furthermore, the way in which the waste was deposited has caused waste to settle on adjoining lands owned by Hide-Away Resorts Ltd. resulting in the further risk of pollution on those lands. 4. Materials deposited at the landfill site continue to cause pollution to adjoining properties and constitute a further environmental hazard due to the risk of erosion and fire. The adjoining Hide-Away Resorts Ltd. property will require extensive filling to minimize the fire risk and the movement of water through the fill. 5. There have been several fires reported at the site causing smoke to vent from the fill material and destabilization of the landfill boundaries. 6. Materials deposited at the landfill site are likely to generate smoke and leachate pollution and there is a further risk of pollution to adjoining property by shifting of the landfill materials due to slope instability. 7. The only practical way to mitigate the likelihood of further pollution is by stabilizing the slopes and contouring the surface to control drainage to minimize leachate generation. Fire risk can be reduced by establishing a "cap" of native soil material to re-establish vegetation on the landfill and adjoining areas. THE EVIDENCE Evidence at this hearing was given by Peter Van Der Wal for the Appellant and by Greg Kanya for the Respondent. Both the Appellant and the Respondent were represented by counsel. On one occasion in 1993 the inspection officer from the Ministry of Environment ( Ministry ) observed smoke on the Van Der Wal Property - and believed that the source of the smoke might have been a "combustion fire" in the wood waste. Peter Van Der Wal also gave evidence with respect to this occasion. Peter Van Der Wal suggested that the cause of the smoke was arson. He did not think that it was a combustion fire because of the ease with which it was extinguished. In any event there is a congruence of evidence that on an occasion in 1993 there was combustive activity that took place for a short period of time. There was no evidence presented at the hearing to establish that there had been any other fires. Evidence was also given by the Respondent's witness to the effect that the site continued to "vent" until This "venting" has stopped in the last year. There was no evidence as to what was vented - was it steam or smoke or a combination of both or was it something else?

4 APPEAL NO. 95/32 WASTE PAGE 4 It was Peter Van Der Wal's evidence that the wood waste fill in the Hide-Away Triangle was placed there prior to September, 1991 or, in other words, prior to the 1991 Approval - that it was placed there prior to a boundary survey he did in the summer of 1991 which is referred to above. The Ministry made numerous inspections of the site subsequent to the granting of the 1991 Approval. There was only one reference in the field notes that "refuse" was placed closer to the Hide-Away Triangle than provided for in the 1991 Approval - and this appears from a subsequent note to have been rectified. If the wood waste on the Hide-Away Triangle had been placed there subsequent to the 1991 Approval it surely would have been noted. There was no evidence at the hearing that there has ever been any emissions, smoke or otherwise, from the Hide-Away Triangle. According to Peter Van Der Wal the layer of wood waste in the Hide-Away Triangle was shallow - about a foot or so. In appearance, the surface of the Hide-Away Triangle was something like the wood chips that are used to create raised paths or hiking trails in forested parks. Peter Van Der Wal estimated that it would take some 1500 to 2000 truckloads to fill the depression. Counsel for the Respondent suggested that based on the visual inspection of the site that the figure was obviously too high; however, he did not provide an alternative calculation. It is obvious that a very substantial amount of fill would be required to comply with the order. The Van Der Wals have placed trees and other vegetation on their property - the evidence clearly established that there would be a major disruption of their property if heavy truckload after truckload crossed it to dump fill into the Hide-Away Triangle. Reference at the hearing was made to the so-called Linsky fire and to the trial that arose out of the Linsky case. The judgment from the trial was quoted at considerable length. Although counsel for the Respondent did not object to the quotation it was quoted not as an authority but rather for evidentiary purposes. It is not, however, admissible or relevant evidence at this hearing and has no bearing on this decision. There was no geotechnical evidence presented at the hearing with respect to the slope instability of the landfill on the Van Der Wal Property. The panel observed what appeared to have been some landsliding on the southern slope of the Van Der Wal Property and it may well be that there is a measure of instability; however, not only was there no geotechnical evidence confirming this, there was no evidence as to how and why further landsliding would result in pollution. In response to cross-examination Greg Kanya acknowledged that recent tests had confirmed that there was no evidence of toxic leachates coming from the fill area on the Van Der Wal Property.

5 APPEAL NO. 95/32 WASTE PAGE 5 The evidence was that at certain times during the course of the landfill operation carried out pursuant to the 1991 Approval the work was out of compliance. The usual reason for non-compliance was that the cover was not adequate or was not in place within seven days. The work also continued past the deadline into at some point in 1993 it was finished and was in compliance. It should be noted that the 1991 Approval did not in any way deal with the Hide- Away Triangle - in fact it specifically excluded the placement of refuse within five metres of the north property boundary of the Van Der Wal Property. LEGAL ISSUES The powers of this Board on an appeal are set out in section 28(3) of the Waste Management Act. It reads as follows: 28(3) On considering an appeal, the board may (a) hold a new hearing, (b) confirm, reverse or vary the decision appealed from, and (c) make any decision that the person whose decision is appealed could ave made, and that the board considers appropriate in the circumstances. Mr. Doyle said that the 1995 Order was made pursuant to section 22.2 of the Waste Management Act. Subsection (2) of section 22.2 provides as follows: 22.2(2) If a manager is satisfied on reasonable grounds that an activity or operation has been or is being performed by a person in a manner which is likely to release a substance that will cause pollution of the environment, the manager may order a person referred to in subsection (3), at that person's expense, to do any of the following: (c) acquire, construct or carry out any works or measures that are reasonably necessary to prevent the pollution; (d) adjust, repair or alter any works to the extent reasonably necessary to prevent the pollution [emphasis added]. Subsection (4) of that Act reads as follows: 22.2(4) An order under subsection (2) may authorize a person or persons designated by the manager to enter land for the purpose of preventing the pollution.

6 APPEAL NO. 95/32 WASTE PAGE 6 The effect of s. 22.2(4) is to allow the Province to enter upon or to allow someone else to enter upon private property. An interpretation of the section should have reference to section 8 of the Interpretation Act, R.S.B.C. 1979, c. 206 which reads as follows: 8. Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. The object of Section 22.2 is to contain or eliminate pollution and should be given a "fair, large and liberal" interpretation to attain that object. Subsection (4) does not limit "land" to the land of the polluter or to the "land" where the polluting substance is located. If an order can be made to do the fill work, then that order could include a provision giving access across the Appellant's land. What is meant by "satisfied on reasonable grounds"? This phrase has been considered in numerous criminal law cases in connection with the issuance of search warrants. In Re Bell Telephone Co. of Canada (1947), 89 C.C.C. 196, Chief Justice of Ontario High Court McRuer said at page 198: Before a justice may issue a search warrant, it is necessary that there be a sworn information that contains such a statement of facts as satisfies the Justice that there are reasonable grounds for believing any of the things set out in Section 629. It is not sufficient that the Justice should be satisfied he must be satisfied on reasonable grounds; that is, the grounds of belief set out in the information must be such as would satisfy a reasonable man. If there are not such grounds shown the Justice cannot be taken to have been satisfied on reasonable grounds. In other words there is an objective standard. In West Fraser Timber Co. v. British Columbia (Regional Waste Manager), a 1988 decision of Justice Lander of the B.C. Supreme Court gave considered the predecessor legislation. At page 12 of the decision Justice Lander said as follows: There are two conditions in s. 22 which may be subject to judicial review before exhausting the remedies provided under the Act: (1) that a substance is causing pollution, and (2) that a person had possession, charge or control of the substance at the time it escaped or was emitted, spilled, dumped, discharged, abandoned or introduced into the environment, or caused or authorized the pollution.

7 APPEAL NO. 95/32 WASTE PAGE 7 Of note is that the first condition is in the present tense at the time of the order, the second condition is in the past. The standard necessary for both is "reasonable grounds." And at page 12: The Regional Manager was not obligated to establish these conditions beyond a doubt, but to be satisfied on reasonable grounds. The facts evidence reasonable grounds. Although the wording of the section was significantly changed in 1993, this case is still applicable to the basic test; namely, that the test is an objective test and that the standard of proof is not the criminal law standard but a standard more akin to the civil standard of "balance of probabilities". The manager must, on the basis of plausible evidence, objectively considered, be satisfied that there will "likely" be release of a substance that will cause pollution of the environment. It is not that the "act" might cause pollution but rather that it is likely. "Likely" has been judicially defined as "most probably" not "may possibly" (see R. v. K.C. Irving, (1975) 62 D.L.R. (3d) 157 (C.A.) or "at least more probable than not" (See Sayle v. Jevco Insurance Co. (1985) 16 C.C.L.I. 309 (B.C.C.A.) Likely is probably synonymous with probably. Finally it is necessary to consider the definition of pollution in section 1 of the Waste Management Act which is as follows: Pollution means the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment. At the very least then on the basis of objective evidence the manager must come to the conclusion that the operation or activity will probably cause a contamination that will substantially alter or impair the usefulness of the environment. Applying the above to this case it can be said that it is incumbent upon the Respondent to show that its grounds for making the 1995 Order were reasonable. The question that this Board must consider on this appeal is whether or not the Respondent has adequately shown that the statutory conditions (for making the order) have been satisfied. OTHER LEGAL ISSUES Counsel for the Respondent argued that even if the Appellant has complied with terms of the 1991 Approval, the manager could still make an order pursuant to section 22.2(2) of the Waste Management Act.

8 APPEAL NO. 95/32 WASTE PAGE 8 Mr. Doyle is partly correct in this assertion although it should be noted that the Respondent did, in part, "justify" the property access order on the basis that the Appellant had "caused" the original problem. Furthermore reference must also be made to subsection (5) of section 22.2 of that Act. It may be necessary to consider whether or not the Appellant was ultimately in compliance with the 1991 Approval because of subsection 5 which reads as follows: 22.2(5) The powers of a manager under this section are not exercisable in relation to any part of an activity or operation which is in compliance with the regulations or a permit, approval, order, waste management plan or operational certificate or an authorization made under the regulations. The Respondent might have argued that the 1995 Order was not made in connection with the activity or operation flowing from the 1991 Approval. They did not argue this - in fact the 1995 Order was directed very precisely at the parties in the 1991 Approval. Also, is there any significance to be given to the fact that the other party to the order did not appeal? Does this mean that the manager does not have to make a decision based on section 22.2(2) - that somehow the statutory preconditions in section 22.2(2) can be bypassed and that the only consideration is whether it is reasonable to make an order under section 22.2(4)? The Panel does not think so. Meeting the prerequisites of section 22.2(2) is a prerequisite to an order being made under subsection 22.2(4). PANEL'S SUMMARIZATION RE FINDING OF FACTS Can it truly be said that there is any evidence of any pollution in the instant case? The Panel does not think so. Firstly, as noted in the review of the evidence there was negative evidence with respect to the presence of toxic leachates. Secondly, some smoke on one occasion (some two years prior to the 1995 Order) can hardly constitute "substances or contaminants that substantially alter or impair the usefulness of the environment" (emphasis added). Finally the substance vented was unidentified but no suggestion was made that it was a polluting substance or contaminant. The Board cannot help but comment that, given the Respondent's justifications for its 1995 Order, it is curious why it would not have been made two years earlier. The Panel makes the following summarization: a. It accepts Peter Van Der Wal's evidence that the wood waste in the Hide- Away Triangle was placed there prior to b. The Hide-Away Triangle was not a subject matter of the 1991 Approval. c. By some point in 1993, the conditions in the 1991 Approval had been substantially met by the Van Der Wals.

9 APPEAL NO. 95/32 WASTE PAGE 9 d. There is no evidence that a polluting substance or contaminant is now or has ever been emitted from the fill on the Van Der Wal Property. e. There is no evidence that materials deposited at the landfill site on the Van Der Wal Property have in the past or continue to cause pollution to adjoining properties. f. There is no evidence that materials deposited at the landfill site on the Van Der Wal Property are likely to generate smoke or leachate pollution. g. There was insufficient evidence that there is a further risk of pollution to adjoining property by shifting of the landfill materials due to slope instability. h. There is no evidence that any smoke or anything else has come from the subject area of the 1995 Order - the Hide-Away Triangle. CONCLUSIONS The manager simply did not have reasonable grounds to make the order. This is not a close to the line case. The grounds that the manager had for making the order were virtually non-existent. The only "fact" with even a degree of substantiveness was some smoke on one occasion some 2 years earlier. It is speculation totally unsupported by any evidence that there is likely to be a fire or any such similar event at this site. Similarly, neither the viva voce evidence nor the visual inspection of the site support any contention that the "activity or operation", as of the date of the hearing, was not in compliance with the 1991 Approval. Accordingly, if this order is indeed made in connection with the "activity or operation" carried out pursuant to the 1991 Approval then pursuant to section 22.2(5) of the Waste Management Act, the "powers of the manager" are not exercisable under section 22.2(2) of that Act The Panel finds that the Respondent did not show that it could properly have been satisfied on reasonable grounds that an "activity or operation has been or is being performed by a person in a manner which is likely to release a substance that will cause pollution to the environment". Even if the Ministry had succeeded in establishing that there were "reasonable grounds", the powers of a manager under this section were not exercisable in relation to any part of the activities or operations flowing from the 1991 Approval because the activity or operation was in compliance with an approval made under the regulations. DECISION Accordingly the appeal is allowed and the 1995 Order is reversed or varied in all respects as it applies to the Van Der Wals. In particular, paragraph 4 of the 1995 Order is reversed. For whatever reasons Amstutz Contracting Ltd. did not appeal the 1995 Order - nothing in this decision affects the validity of that Order vis-a-vis Amstutz Contracting Ltd. except to the extent that it applies to the Van Der Wals.

10 APPEAL NO. 95/32 WASTE PAGE 10 It is noted by the Board, although it is not a factor in the decision, that there was evidence at the hearing that the Hide-Away Triangle could at some future time probably be accessed from the Winter's Property with the permission of its owner. David Brown, Panel Chair Environmental Appeal Board July 18, 1996

COURT OF APPEAL FOR BRITISH COLUMBIA

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Between: And Before: Hik v. Redlick, 2013 BCCA 392 John Hik and Jennie Annette Hik Larry Redlick and Larry Redlick, doing business as Larry Redlick Enterprises