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September 24, 2018 September 24, 2018

Appeal denied: proposed Coaldale asphalt plant retains development permit

Posted on April 10, 2018 by Sunny South News

By Nikki Jamieson
Sunny South News

An appeal against a development permit for a proposed asphalt plant in Coaldale has been denied.

The appeal, which was received by the town on Feb. 19 from Coaldale resident and appeal appellant Blaise Mac Neil, requested that the South Country Intermunicipal Subdivision and Appeal Board overturn the town’s Subdivision and Development Board decision that granted a development permit to applicants LASCO and Associated Companies for the construction of an asphalt plant and ancillary use (gravel crusher) on land designated NE14-09-20-W4M.

During the March 20 appeal hearing, Mac Neil had argued during the appeal hearing that by granting the development permit, the town was being “shortsighted”. He raised concerns over things such as noise, silica dust and impact on property values. He also voiced doubt over whether the operation would be as stringent as they claimed to be.

“I worked as a Health and Safety officer, and spent the last five years in Fort McMurray doing that, so I am quite aware that health and safety isn’t always followed. Part of a Health and Safety officer’s job is to look at the incongruencies between what’s been done and what the standard is, and often, it falls short,” said Mac Neil, adding that sometimes businesses standards are higher then Alberta Health’s standards. “Just because Alberta Health does not have anything to say about this matter doesn’t mean the hazards are mediated.”

Mac Neil criticized the town’s advertising process, arguing that the town didn’t do its due diligence when it came to getting word out over the development.

Mac Neil said the letters in opposition to the plant that were submitted ahead of the Jan. 24 Subdivision and Development Board meeting were written over a three-day period, as residents were not made aware of the development permit application for the plant.

“How many letters would have been written if there was a proper mail notification given to the community, instead of two-days advertisement a week apart in the Sunny South News, one week prior to granting the development permit? How many would have come to the meeting, if it was scheduled at an appropriate time for working citizens to attend, instead of 4:30 in the afternoon?” questioned Mac Neil.

“A project of this scale was no doubt discussed for quite some time. We doubt that it was first brought up to our council’s attention a week prior to their decision. Although the basic timelines may have fell within the Municipal Government Act’s legal mandate, this application has serious consequences to our community and must be discussed at length. The matter of which our present council has handle this project leaves this community angry, disheartened and extremely concerned for the welfare of their properties and lifestyle in the future.”

A representative for the applicants, Richard Thiessen, Silver Ridge Construction general manager, stated that here was a Code of Practice for Asphalt Paving Plants that asphalt producers had to follow. The code is a series of regulations that is mandated under the province’s Protection and Enhancement Act.

In the code, section 6.3 states that “An asphalt paving plant shall use pollution control technology and operating practices that meet the following environmental requirements: (a) The opacity from all air emission sources at the asphalt paving plant shall not exceed 40 percent, averaged over a period of 6 consecutive minutes.  (b) The concentration of particulates in each effluent stream from the asphalt paving plant’s dryer stack to the ambient air shall not exceed 0.20 grams per kilogram of effluent. (c) Emissions from the asphalt paving plant shall not cause an offensive odour. (d) Fugitive dust emissions from the asphalt paving plant shall not cause an adverse effect. “

Thiessen also stressed that they would do everything possible to mitigate the chance of silica dust blowing from the site, adding that OH&S has regulations and controls in place that they must abide by, and there are engineering controls that will be put in place to reduce or eliminate the release of silica dust.

“We are interested in being a responsible part of the community. We will provide a worksite that will not adversely affect the health, economy, enjoyment of the neighbourhood,” said Thiessen.

“The thing we will gain, because we’re in a permanent location, is that we can continue to improve as we move along, and assess and are evaluated and are held under public scrutiny by the town and Alberta Health, by the Alberta Environment. What a permanent location does is, rather then, these facilities are usually moving, as far as the crushing plants (go), are usually moving from site to site, so permanent solutions are not found. And what we have put in our business plan, is this permanent location will help us develop permanent solutions.”

The legal council for the applicants, Kerry Gelrich, also made the case at the hearing that the appellant couldn’t be considered an affected landowner in the case of the proposed plant, as he didn’t live in the vicinity of it, but rather over a kilometer away from the proposed site, on the other side of the highway that runs through town.

Although neither the Municipal Government Act (MGA) nor the town’s Land-Use Bylaw define what an affected person is, Gelrich says that through past Subdivision and Development Board decisions, “I know that the word ‘affected’ does not apply to all citizens of Coaldale at large”.

“To be affected, the effect on that person needs to be greater then on the average citizen. Courts have found that the term does not cover people who live outside the neighbourhood of the proposed development,” said Gelrich. “The test… is that an affected person has been defined as a person who can establish that a development, to a material degree, would effect their property, residence or neighbourhood, or that can otherwise demonstrate that a development would genuinely have a effect on that person.”

“I understand Mr. Mac Neil’s concerns, to be in brief, the traffic, the noise, the dust, concerns with possible side effects on crops nearby, but non of those effect home personally or will effect him any greater then any other citizen of Coaldale. It does not effect his enjoyment of his own property or his neighbourhood, and there is absolutely no unique impact on him. Our position is, in looking at the significant distance between Mr. Mac Neil’s home and the proposed development, that he is not an affected person.”

In their reasoning for their decision, the appeal board found that there was “no reasonable grounds” to determine the Mac Neil could not be considered an affected person. They also that the concerns laid out in his initial letter and submissions were “general in nature” and pertained to concerns “which were purported to be expressed generally on behalf” of Coaldale residents and nearby Lethbridge County residents. As such, the appeal board found their jurisdiction to hear the concerns brought forth by the applicant and others at the hearing “extremely limited”.

Additionally, they were also “satisfied that the town met and exceeded standards regarding the

Another point touched on in the meeting was the increases in traffic in the area. Although LASCO had previously reported that traffic would increase by 75 trucks a week and Alberta Transportation weren’t required to have a traffic impact assessment done, that was a miscommunication, and the increase in traffic would actually be 75 trucks a day. After being notified by town administration of the new numbers, Alberta Transportation has provided notice that a traffic impact assessment will be needed.

Coaldale’s Subdivision and Development Appeal board made their decision on March 29, and was released on April 3.  In their decision, the appeal board added in one further condition that LASCO must meet; to have a Traffic Impact Assessment completed and submitted to both the town and Alberta Transportation for approval.

LASCO and Associated Companies still have to fulfill a total of 28 conditions  — that the town will review and monitor for compliance — before they can start the construction and operation of the facility.

“The town has quite a few conditions in place there that the applicant and the developer will be expected to meet, and they will be required to do so over time,” said Cameron Mills, planner and SDAK clerk for the Oldman River Regional Services Commission.

Although the appeal can still be appealed to the Court of Alberta, it can only be done over matter of law and jurisdiction.

“There are provisions in the Municipal Government Act for the appeal of a SDB decision. The appeal is to the Court of Alberta, but you can only appeal on matters of law or jurisdiction, not on sort of disagreeing with the decision,” said Mills.

Those with questions about the decision are invited to contact Mills at (403) 329-1344.

To read the appeal board’s decision, visit http://www.coaldale.ca/2018/04/development-appeal-board-decision

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