The B.C. Ministry of Environment was too concerned with the interests of Rio Tinto Alcan when it granted the company a permit to dramatically increase the release of sulphur dioxide (SO2) emissions in the Kitimat airshed, a tribunal heard in Victoria this week.
"This case raises the specter, in a very real way, of regulatory capture," Chris Tollefson, lawyer for the University of Victoria's Environmental Law Centre, argued in his opening statement.
Tollefson said the B.C. Ministry of Environment put senior official Frazer McKenzie in a conflicted position when it allowed Rio Tinto Alcan to pay his salary between 2007 and 2013 -- during which time McKenzie was tasked with reviewing an upgrading application for the company's Kitimat smelter.
In 2013, the province, acting through Ian Sharpe, environmental manager for the Ministry of Environment, granted Rio Tinto Alcan permission to proceed with a $3.3 billion modernization project that would increase production and the amount of sulphur dioxide emissions released into the Kitimat airshed.
Two Kitimat residents, Emily Toews and Lis Stannus, appealed the project's approval in 2013 with the B.C. Environmental Appeal Board, arguing the 55 per cent increase in sulphur dioxide emissions would threaten human and environmental health. Toews and Stannus are both elementary school teachers in the region.
"This case really does represent a situation where you have a regulator that has gotten too close to a powerful and well-resourced private interest that it is supposed to be independently regulating," Tollefson told the tribunal, an independent body tasked with hearing appeals submitted to the Environmental Appeals Board.
Tollefson alleged Rio Tinto Alcan was granted too much authority in the decision-making process and "in the end got exactly what it wanted."
The province announced the project did not require an environmental assessment because overall emissions will be reduced as a result of the modernization project -- even though SO2 emissions are set to increase.
Tollefson argued that because Ministry of Environment officials were too wrapped up with Rio Tinto Alcan's interests, they did not order the company to install scrubbers, designed to "scrub" SO2 pollution out of the smelter's effluent.
However, Rio Tinto Alcan has "covered its bets," Tollefson said, by "setting aside the ability to install these scrubbers on a plug and play model" should the province decide to require them.
"If this panel decides to order the installation of scrubbers, there is no technological or logistical reason why Rio Tinto Alcan can't comply with that," he said.
The province has not required scrubbers be installed -- at an anticipated cost of between $100 and $200 million to the company -- because "this concern to keep Rio Tinto Alcan content ... in the end overshadowed the concern that should have been shown for the public interest."
Ben Naylor, co-counsel for the Ministry of Environment said there was no conflict of interest and that Rio Tinto Alcan funded McKenzie's position because of concerns there would be "inadequate staffing to deal with the application, including the application to increase sulphur dioxide."
"This agreement allowed the government to secure funding for a complicated position," he told the tribunal. "Without this funding this permit would not have been dealt with in the timeframe provided or with the amount of scientific rigour needed."
Dan Bennett, a lawyer representing Rio Tinto Alcan, said the appellants have raised "no credible concerns" with the smelter's modernization project. Doyle argued the changes will reduce the plant's environmental footprint including reducing greenhouse gas emissions by 42 per cent.
But, he added, he does "acknowledge that sulphur dioxide emissions are intended to increase and that results from the increased level of aluminum production."
Co-counsel for Rio Tinto Alcan Jana McLean added the "appellants request in this appeal to amend the permit to require scrubbers lacks any evidentiary foundation and is without scientific merit."
The hearing will continue in Victoria for two weeks (April 27-May 1 and May 11-May 15) before continuing in Kitimat.
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