October 4, 2004

Ottawa to appeal Federal Court ruling on Bennett facility in Belledune, NB

The federal government will appeal the "Bennett Environmental High-Temperature Thermal Oxidizer" ruling handed down by the Federal Court, Environment Minister St√ąphane Dion said last week. In its application before the Federal Court of Appeal, the government says it believes the ruling creates uncertainty about the scope of application of the Canadian Environmental Assessment Act.

The Federal Court decision on the Bennett Environmental facility in Belledune, New Brunswick, handed down on August 19, 2004, concluded that the Canadian Environmental Assessment Act (CEA Act) does not apply in this instance because the facility was already near completion and did not constitute a "project" under the Act. The government is seeking to clarify that the transboundary provisions of the act do apply to projects such as Bennett's Belledune facility. These provisions permit the Minister to refer such a project to a review panel.

Specifically, the government's appeal will address the Court's conclusions that the Bennett facility was not a project as defined by the CEA Act and that the potential significant adverse transboundary environmental effects of the facility could not be assessed pursuant to the act. No environmental assessment of the potential transboundary environmental effects of this project has been carried out. The government believes that such an assessment is necessary and appropriate.

While the appeal is being heard, the federal government is willing to discuss environmental matters related to the facility with Bennett Environmental and the New Brunswick government.

The Bennett facility in Belledune, New Brunswick is intended to treat approximately 100,000 tonnes per year of hydrocarbon- and creosote-contaminated soils and other solid materials, mainly from brownfield site remediation projects within North America. The project was subject to provincial approval processes.

In October 2003, petitions for an environmental assessment under the transboundary provisions of the Canadian Environmental Assessment Act were received. The same month, the Canadian Environmental Assessment Agency began investigating the potential adverse transboundary environmental effects of the facility, with expert input from Environment Canada, Health Canada, Indian and Northern Affairs Canada and Fisheries and Oceans Canada. The Agency released a technical analysis on May 19, 2004.

The federal Environment Minister subsequently referred the project to a federal review panel to examine its potential for adverse transboundary environmental effects.

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