Alberta Court Of Appeal Rules On The New "NORM" For Standing Before The Environmental Appeals Board

• Published date: 17 December 2020
• Subject Matter: Environment, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Waste Management
• Law Firm: McLennan Ross LLP
• Author: Mr Sean Parker and Kyle Trolley

Introduction

On Friday December 11, 2020, the Alberta Court of Appeal released its decision in Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 ("Normtek v EAB") where it overturned a Court of Queen's Bench judicial review ruling¹ that upheld a decision by the Environmental Appeal Board (the "Board") where an appeal was dismissed on the basis that the appellant, Normtek Radiation Services Ltd. ("Normtek"), lacked standing as it failed to show that it was "directly affected" by the administrative decision under review.² This is a significant decision by the Court of Appeal as it potentially expands the test for standing before the Board to include parties who's economic interests may be affected even if not directly tied to an environmental impact. In addition, this decision has the potential to expand the scope of a hearing on the preliminary issue of standing before the Board; essentially requiring an analysis of the merits of an appeal if connected to an appellant's position on how it may be "directly affected" by the decision being challenged.

Background

The appellant, Normtek, operates a specialized business that transports and disposes of naturally occurring radioactive material ("NORM"), which can accumulate as a waste product of oil and gas extraction and production operations.

Secure Energy Services Inc. ("Secure Energy"), brought an application to the Director of Alberta Environment and Parks (the "Director") for an amended approval that would permit Secure Energy to dispose of NORM at its Pembina landfill northwest of Drayton Valley.³ Normtek responded to Secure Energy's application by submitting a statement of concern to the Director arguing that Secure Energy's application was contrary to international and national guidelines, and the Director's decision should await the development of appropriate waste classification criteria for NORM in Alberta.⁴

The Director responded to Normtek's statement of concern advising that Normtek was outside of the environmental impact area of the proposed project and therefore, Normtek was not directly affected.⁵ Secure Energy subsequently received an amendment to its approval, and Normtek appealed to the Board.

Environmental Appeal Board Decision

Under section s 91(1)(a)(i)) of the Environmental Protection and Enhancement Act⁶ (the "Act"), the Board may hear an appeal by a party that is "directly affected" by the Director's decision.⁷ However, an appeal can be dismissed under section 95(5)(a)(ii) of the Act if the Board finds that the appellant does not have standing - i.e. that is not "directly...