Mudry, McCaffery Goss Mudry, on behalf of Kedon. Region, Natural Resources Service, Alberta Environment. Appeal No D. 2001, Mr. 13.

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1 Cite as: THE MATTER OF Sections 84, 87, 91, 92 and 223 of IN Protection and Enhancement Act, S.A. 1992, c.e- Environmental to Administrative Penalty No. 00/03-BOW-AP-00/34 respect on December 18, 2000, by Director, Bow Region, issued Appeal No D Waste Services Ltd. and Lethbridge Regional Landfill Ltd. v. Director, Kedon Region, Natural Resources Service, Alberta Environment. Bow of Hearing May 2 and 3, 2001 Date of Decision- May 14, 2001 Date 13.3; -and- IN THE MATTER OF an appeal filed on January 17, 2001, Mr. Mudry, McCaffery Goss Mudry, on behalf of Kedon Thomas Services Ltd. and Lethbridge Regional Landfill Ltd. with Waste Natural Resource Service, Alberta Environment.

2 A. Tilleman, Q.C., Chairman William Vos, Board Member Curt Appellants: Mr. Tim Waters, Mr. Don Goett, Mr. Keith Goett, Kedon APPEARANCES Services Ltd. and Lethbridge Regional Landfill, Waste by Mr. Thomas Mudry, McCaffery Goss represented Mudry Mr. Jay Litke, Director, Bow Region, Natural Resources Director: Alberta Environment, Ms. Erika Gerlock Mr. Rick Service, Staff: Mr. Gilbert Van Nes, General Counsel and Settlement Board and Ms. Denise Black, Hearing Officer Officer, HEARING BEFORE Ted W. Best, Board Member Alberta Environment, represented by Ms. Chisholm, Graham, Alberta Justice Charlene

3 TABLE OF CONTENTS A. Statutory Background B. Factual Background 1 II. HEARING 5 III. DECISION 6

4 On December 18, 2000, Director, Bow Region, Natural Resources Service, [1] Environment ( "Director") issued Administrative Penalty No. 00/30-BOW-AP-00/34 Alberta "Administrative Penalty") to Kedon Waste Services Ltd. and Lethbridge Regional ( Ltd. ( "Appellants") in amount of $8,500 for contravening sections 213(3) and Landfill disposed waste on lands of anr person without consent. -1- BACKGROUND Ao Statutory Background 173 of Environmental Protection and Enhancement Act, S.A. 1992, c.e The offences occurred on February 8, 2000, February 29, 2000 and April 1, 2000 at SW W4th in of Lethbridge. The Appellants allegedly failed to have moveable windscreens at County failed to submit information on 1999 operations of Class II part of landfill by landfill; March 31, 2000; failed to immediately report contraventions of Approval and B. Factual Background On January 16, 2001 Environmental Appeal Board ( "Board") received a [2] of Appeal from Mr. Thomas Mudry, of McCaffery Goss Mudry, on behalf of Notice appealing Administrative Penalty. The Board acknowledged appeal on Appellants 16, 2001 and requested records related to Administrative Penalty from January Director. According to standard practice, on January 16, 2001, Board wrote to [3] Resources Conservation Board ( "NRCB") and Alberta Energy and Utilities Natural Board ( "AEUB") asking wher this matter had been subject of a hearing or review under ir respective Board's legislation. The NRCB and AEUB replied in negative. On February 12, 2001, Board received records from Director and [4] a copy to Appellants. At this time, Board also requested that Director and provided Appellants provide available dates for a hearing during weeks of April 2 and 23, The Board received a response from Director on February 16, 2001 providing dates and also

5 To extend that Administrative Penalty was assessed against Kedon 1. Services Ltd. (Kedon), we take position that this was improper as Waste My clients take position that "moveable windscreens" referred in 2. are neir described nor defined. The adequacy of same is not Approval in Approval. My clients take position that re were addressed windscreens at landfill as at date of alleged infraction. moveable With reference to counts 3 and 4, my clients take position and will present 3. that y did inform Alberta Environment that re were problems evidence not be a lengthy one, and a brief delay was agreed to by a would of Alberta Environment. representative reality of windblown litter leaving site given contemplates windy conditions that exist in Lethbridge. The Approval indicates extremely LRL is to attempt to control litter, and LRL says that on date of he that infraction, it was taking all.reasonable steps to control liter. alleged adjacent landowner's land came from Landfill, and will present that litter could hav e easily come from or sources or locations. evidence as a matter of law, my clients take position that section of Finally, Act is vague, ambiguous and incapable of being enforced. In addition, my of Rights and Freedoms and are refore unconstitutional. My Charter also say that sections and 173 do not apply to landfills. clients -2- Board determine specific issues to be considered at hearing as Notice requesting Appeal does not set out any specific grounds of appeal. A response was received from of Appellants on February 22, 2001, along with a request to schedule hearing for 2 days. On March 5, 2001, Board requested Appellants clearly outline ir [5] of appeal and identify those specific issues contained in Administrative Penalty to grounds which y object. In this letter, parties were also requested to provide dates for a heating in May, as no mutually agreeable dates for April had been provided. On March 9, 2001, Appellants responded to Board's March 5, 2001 letter [6] ir issues and stating: outlining "... specific issues my client wishes to address are as follows: Kedo n was neir owner of subject landfill, nor was it Approval holder for Landfills at date of alleged infractions. and two reports could not be submitted by March 31, 2000, but delay With reference to count 6, my clients take position that provisions of 4. Approval override sections 173 and The Approval specifically My clients furr take position that re is no evidence that litter on clients take position that sections and 173 read toger offend

6 As for count 5, my clients say that re was no infraction with respect to 5. 2 and refore, no requirement to report anything. With respect to count Board's authority in matters such as this is to 'confirm, reverse or vary "The appealed and make any decision that Director whose decision was decision can Board. All Director can do is interpret and apply neir of Act, refore, that is role of Board, pursuant to s. 90, provisions On March 28, 2001, Board wrote to parties advising that preliminary [10] would be heard morning of May 2, 2001 and stated: motion Board would like parties to address following questions with "... to preliminary matter: respect Is Board precluded from dealing with constitutional question raised 1. Mr. Murdy? In dealing with this question, Board would like by to address, among or arguments parties may wish to raise, parties cases: Director, Prairie Region, Environmental Service, Alberta Environment a. Environmental Appeal Board and McCain Foods (Canada) Ltd. v and 4, my clients take position that y did report upcoming counts infractions in advance of obtained consent to same." technical In consultation with parties, Board scheduled hearing for May 2, 2001 [7] Calgary with a notice to affected parties published in Lethbridge Herald. No persons or in parties to this appeal notified Board of ir intention to participate in appeal than A news release was also issued and distributed to 95 daily newspapers, radio stations process. and television stations within Alberta. In its letter of March 13, 2001 to parties, Board also advised that it would make a determination of issues to be dealt with at hearing. On March 21, 2001, based on request of Appellant, Board agreed to [8] a second day for hearing and confirmed that hearing would be held on May 2 and 3, add The Director provided notice o Board of his objection to Appellants issue [9] Charter of Rights and Freedom stating: regarding could make (s.90 of EPEA)'. It is submitted that Director cannot appealed a determination of constitutionality of a provision of Act. As such, make has." 22 C.E.L.R. (N.S.) 258 (Alta.Q.B.); (2000), Douglas/Kwentlen Faculty Association v. Douglas College [1990] 3 b. S.C.R. 570;

7 Cuddy Chicks Ltd. v. Ontario Labour Relations Board [1991] 81 c. (4 th) 121 (S.C.C.); D.L.R. Canada (Employment and Immigration) v. Tetreault Goboury [1991] 2 d. 22; and S.C.R. Paul v. British Columbia Forest Appeals Commission (1999), 31 e. (N.S.) 141 (B.C.S.C.). C.E.L.R. Board has jurisdiction to deal with a constitutional Assuming should it deal with this question? question, Board has jurisdiction to deal with constitutional Assuming and assuming Board should deal with question, are question would like parties to address, among or arguments parties Board wish to raise, issues of: may Is it possible for Board to interpret provisions in such a manner a. y are constitutional? that If Board determines provisions are unconstitutional what b. should be granted?" remedy 25 of Judicature Act, S.A. 1980, c.j-1, states: Section If in a proceeding constitutional validity of an enactment of Parliament of Canada or of 25(1) Legislature of Alberta is brought into question, enactment shall not be held to be invalid unless days' written notice has been given to Attorney General for Canada and Minister of 14 and Attorney General for Alb'erta. Justice When in a proceeding a question arises as to wher an enactment of Parliament of Canada or (2) Legislature of Alberta is appropriate legislation applying to or governing any matter or no decision may be made on it unless 14 days' written notice has been given to Minister issue, Justice and Attorney General for Alberta and Attomey General of Canada. of The Attorney General for Canada and Minister of Justice and Attorney General for Alberta are (3) as of right to be heard, eir in person or by counsel, notwithstanding that Crown is entitled a party to proceeding. not No person or than Minister of Justice and Attorney General for Alberta (4) counsel or by him shall, on behalf of Her Majesty in right of Alberta designated on behalf of an agent of or Majesty in right of Alberta, appear and participate in any proceeding within or outside Alberta Her respect of a question referred to in subsection (1) or (2). in If Minister of Justice and Attorney General for Alberta (5) counsel designated by him appears or in a proceeding within Alberta in respect of a purpose of an appeal from an adjudication in respect of that question and has rights same respect to an appeal as any or party to proceeding. with -4- challenged provisions unconstitutional? In dealing with this question, The Board also requested Appellants comply with section 25 of Judicature Act. 1 With reference to merits of hearing, Board determined it wanted to [11] arguments on following issues: hear The notice shall include what enactment or part of an enactment is in question and give (2.1) particulars of proposed argument. reasonable question referred to in subsection (1) or (2), Minister of Justice and Attomey General for Alberta is deemed to be a party to proceeding for

8 windscreens are not described, defined or orwise adequately moveable in Approval? addressed two reports could not be submitted by March 31, 2000 and a brief was agreed to by Alberta Environment"? delay Kedon contravene section of Approval by failing to report Did of sections 4.1.9(c), 4.2.9, and of Approval? contraventions of anor person without consent? And if so, is it a valid defense to land that Approval overrides section 173 and of Act and argues [12] The Board received a letter from Appellants advising that y wished to On April 4, 2001, Appellants advised Board that it would not be pursuing [13] constitutional argument. In response, Board reiterated issues that it would hear at Submissions were received from Director and Appellants and hearing [14] on May 2, Part way through second day of hearing, parties asked commenced "In this regard, Board would like parties to address following issues: 1. Is Kedon properly named as a party in Administrative Penalty? Kedon contravene section 4.1.9(c) of Approval with respect to Did windscreens? And if so, is it a valid defense to argue that movable Kedon contravene sections and of Approval with Did to filing two reports? And if so, is it a valid defense to argue that respect Kedon informed Alberta Environment "... that re were problems and Did Kedon contravene section 173 of Act by depositing waste on that sections 173 and do not apply to landfills?" Parties were also requested to provide ir written submissions and exhibits to Board in relation to hearing. pursue mediation and requested Director provide his comments. On March 29, 2001, Director advised that it wished to proceed directly to a hearing. hearing on merits of appeal as stated in paragraph 11 above. II. HEARING for an adjournment to pursue a settlement. The Board granted adjournment and encouraged

9 The Board is pleased that parties were able to reach a settlement agreement [17] respect this appeal. with William A.Tilley. -6- parties to work towards an agreement begimaing that afternoon. Several hours later, advised Board that y had reached a settlement, a copy of which is appended as parties 7 to this Decision. page III. DECISION Pursuant to sections 90(3)(a) and 12(2) of Environmental Appeal Board [15] A.R. 114/93, Board confirms parties agreement, set out on page 7 of this Regulation, Decision. With respect to Notice of Administrative Penalty 00/30-BOW-AP-00/34, Board concludes: 1. Count 2 is confirmed with a penalty of $ ; 2. Count 3 is confirmed with a penalty of $ ; 3. Count 4 is confirmed with a penalty of $ ; 4. Counts 5 and 6 are withdrawn; and Factors are assessed at plus $500.00, for a total Administrative Penalty of 5. $ No costs were requested in agreement and, refore, no costs are awarded. [16] party shall bear ir own costs. Each Dated erta. May 14, 2001, at on Curt Vos W. Best Ted

10 Agreement Mediation Appeal Board Environmental Appeal No Respecting Administrative Penalty No. 00/30-BOW-AP-00/34 Appellants were assessed an administrative penalty in amount of $8500 in relation to Whereas counts: following 3: The Appellants failed to submit information on 1999 operations of Class III part of Count by March 31, 2000; landfill Counts 2, 3, and 4 are maintained. The amount of penalty for count 2 is $1, The amount 1. penalty for count 3 is $ The amount of penalty for count 4 is $ of Dated 3 rd Le Ked td. Di onment -7- Between: Lethbridge Regional Landfill Ltd. and Kedon Waste Management Ltd. ( "Appellants") and Director, Bow Region, Alberta Environment ( "Director") Count 2: The Appellants failed to have movable windscreens at landfill; Count 4: The Appellants failed to submit 1999 Annual Groundwater Report by March 31, 2000; Count 5: The Appellants failed to immediately report contraventions of Approval; and Count 6: The Appellants disposed of waste on lands of anor person without consent. (Count was previously withdrawn by Director.) The Parties Agree as follows: 2. Counts 5 and 6 are withdrawn. The factors are reassessed for a total amount of plus $ The total amount of administrative penalty is $ , including factor. day of May, 2001 in City of Calgary.