As mentioned in our previous post, there is a limited right of public access to approvals documents that are part of an application for an Environmental Compliance Approval (ECA), or are part of the ECA itself, during an application for leave to appeal that ECA to the Environmental Review Tribunal (ERT).
In Environment Hamilton Inc. v. Director, Ministry of the Environment, an environmental group sought leave to appeal an ECA issued to Sunrise Metals for oxy-propane metal cutting at their metal recycling facility. Sunrise uses an oxy-propane torch to cut scrap metal into smaller pieces to ship to customers. Under its ECA, it was required to “conduct all torching operations in accordance with the Torch Cutting Procedure” to control visible emissions.
When Environment Hamilton attempted to get a copy of the Procedure from the MOE, they were told to file an FOI request, because it contained “proprietary information”. “How”, Env. Hamilton asked, “can members of the public assess whether the ECA is adequate when one of its key components – the protocol that is meant to ensure proper control of emissions – is not readily accessible to the public?” This lack of public disclosure was one of the grounds on which they sought leave to appeal.
The issue was moot by the time the ERT rejected Environment Hamilton’s application for leave to appeal; Sunrise had already provided the Procedure to Environment Hamilton. However, the ERT criticized the MOE’s reluctance to turn over the Procedure (at para. 49):
…I find that the response of the MOE to requests for this information is not in keeping with the spirit and intent of the applicable legislation. In my view, once a term or condition is incorporated into an ECA it becomes part of the public domain and the public has a right to access that information. The MOE’s response to the applicant’s request runs counter to the purposes of the EBR which includes protecting “the right to a healthful environment …” and the “prevention, reduction and elimination of the use, generation and release of pollutants ….” In my view, the MOE’s response also runs counter to the public notice requirements of the EPA.
These comments suggest that approval holders must be prepared to turn over the key supporting documents to their ECA, should anyone seek leave to appeal their approval. If documents necessary to support an application do contain confidential information, the confidential portions should be clearly so designated at all times, including when the document is first filed with the ministry.