(Black Press Media files)

(Black Press Media files)

Alberta’s top court tells environmental appeals board to expand public hearings

Board deals with appeals to decisions made under the province’s Environmental Protection and Enhancement Act

Alberta’s highest court has told the province’s Environmental Appeals Board that it should have listened to wider public concerns before allowing an energy services company to dispose of radioactive waste in a landfill.

The Court of Appeal of Alberta decision could force the province to consult more broadly and relax rules that critics say restrict who can speak at public hearings, said a lawyer who argued the case.

“The court’s message is clear and strong,” said Shaun Fluker of the University of Calgary’s Public Interest Law Clinic. “There is a role for public engagement and public participation in the decision-making that takes place.”

Fluker was representing a British Columbia-based company called Normtek Radiation Services. In 2016, Normtek filed an objection with Alberta’s Environmental Appeals Board over a proposal by Secure Energy Services of Calgary to accept radioactive oilfield waste at its site west of Edmonton.

The arm’s-length board deals with appeals to decisions made under the province’s Environmental Protection and Enhancement Act.

Normtek offers radioactive decontamination as one of its services and presented a long list of concerns. It said Secure’s proposal didn’t measure radioactivity adequately and failed to track radiation exposure for workers and groundwater.

It said Secure would accept oilfield waste that was significantly more radioactive than any other landfill in Canada.

Normtek also suggested Secure’s permit application was being considered despite Alberta having no regulations for disposal of that type of waste.

Secure disputed the claims in documents filed with the appeals board.

The board never considered any of Normtek’s concerns. It ruled that because the company was based in B.C., it didn’t meet the test of being directly affected by Secure’s plans. Normtek was considered to have no standing.

The Appeal Court called that restrictive, artificial and unreasonable.

“The board misinterpreted the law,” said the Dec. 11 judgment. “The law is simply that standing is a preliminary matter to be dealt with, if it can be, at the outset of the proceeding. Sometimes it cannot be.”

Fluker said the court struck down a standard that the Environmental Appeals Board and the Alberta Energy Regulator have been using for years.

“This is a long-standing and widespread issue,” he said.

Fluker notes the appeals board used the question of standing to dismiss 200 statements of concern filed over an application to sell water from the Rocky Mountains. And the energy regulator has cancelled public hearings on energy projects after none of the interveners met the standing test.

Gilbert Van Nes, the board’s general counsel, said the body will reconvene to consider whether Normtek should have standing. If Normtek is successful, the board will consider its concerns in a hearing that could affirm, change or revoke Secure’s permit.

“The Court of Appeal’s decision has suggested that we need to be broader in looking at the types of interest that can create standing,” said Van Nes, who added the board hears about 100 cases a year.

Secure has been operating under its permit since 2016. Van Nes said it comes up for renewal in March.

An Alberta Environment spokeswoman said the department is reviewing the ruling.

Bob Weber, The Canadian Press

Environment

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