AIM asks court to quash suspension of approval to operate Saint John scrapyard

American Iron & Metal wants a judge to quash the environment minister's suspension of the company's approval to operate a Saint John harbourfront scrapyard, alleging he acted "arbitrarily and unreasonably," exceeded his jurisdiction and breached his duty of procedural fairness.

The company has filed a notice of application with the Court of King's Bench in Saint John, seeking a judicial review of the decision, which followed a massive fire at the site Sept. 14.

The fire burned for two days and prompted a city-wide shelter-in-place order because of hazardous smoke.

On Sept. 19, New Brunswick Environment Minister Gary Crossman suspended AIM's approval because he was "of the opinion that there was an unauthorized release of contaminants in contravention of section 17" of the Clean Air Act.

In court documents filed this week, AIM says it's "prevented from operating its business at the facility in any fashion pending the Minister lifting the Suspension."

Irving refinery fires did not prompt suspensions

AIM argues that the fire, described in the documents as "The Incident," was "contained within 48 hours," the suspension did not identify the contaminant that was allegedly released or the conditions that had to be satisfied for the suspension to be lifted.

AIM contends it should have been given an opportunity to make submissions before the suspension, and that an order with a "narrower scope" would have been sufficient to satisfy the objectives of the act.

In a supporting sworn affidavit, Michael Cormier, AIM's vice-president for the eastern region, argues other industrial businesses have had fires that did not result in shutdowns or licences being revoked.

Irving Oil Ltd.'s refinery has "experienced several catastrophic explosions and fires" over the past several years, he said, including one in 1998 that resulted in a death, and an explosion and subsequent fire in 2018.

In 2010, the refinery released "more than 30 metric tonnes of dust resulting in property damage to surrounding neighbourhoods and a reduction in air quality," in 2012 it released "dangerous levels of sulphur dioxide," and in 2018, it released "an unknown chemical resulting in property damage to surrounding neighbourhoods and a reduction in air quality," Cormier said.

The TRACC tire recycling yard in Minto also had a fire in 2019 that destroyed the facility and resulted in "significant long-term environmental damage," he said.

Relied 'excessively' on joint task force

According to the documents, AIM sent a letter to the Environment minister on Sept. 20 to ask what conditions it would need to meet to get the suspension on its harbourside metal-recycling operations lifted.

"On Sept. 29, the minister sent an email to AIM in which he "approved AIM to complete certain assessment and remedial activities at the facility (the "Interim Approval.") However, the Interim Approval was rescinded without explanation later that day," the documents say.

Crossman relied "excessively upon the actions taken and the information gathered by the [joint] Task Force and the Saint John Port Authority to the point of fettering his discretion," the company alleges.

In his affidavit, Cormier points out no members of the Department of Environment, including the minister, sat on the task force.

Raises questions of task force co-chair conflict

The company also questions whether the task force co-chair Andrew Dixon, who is the chief operating officer of Port Saint John, had a conflict of interest, as the port is AIM's landlord.

Cormier notes he attended meetings between AIM and port officials in the weeks leading up to the fire, when Port Saint John "urged AIM to consider relocating the facility for the purpose of allowing another industry tenant to take over the property." AIM told Port Saint John it was not interested in its relocation proposal and that it intended to stay, according to Cormier.

Task force chair Cheryl Hansen, the clerk of the Executive Council, dismissed the notion that the port was in a conflict position in correspondence with AIM dated Nov. 15, court documents show. "The task force is not the decision-maker, therefore, conflict of interest principles do not apply, and in addition, we are satisfied no conflict exists," she wrote.

AIM further claims Crossman "exceeded his jurisdiction and discretion under the act and/or acted unreasonably" by:

• Imposing an unconditional order under the Clean Air Act.
• "Arbitrarily and unreasonably" suspending the approval for an indefinite period.
• Failing to explain why a full suspension was reasonable and/or necessary and failing to provide sufficient reasons for his decision.

It claims the minister breached his duty of procedural fairness by failing to provide specific reasons for the suspension or the conditions that had to be met for the suspension to be lifted, and "failing to follow precedent in which other industrial businesses were not suspended for breaches" of the act.

Wants to see evidence

AIM is seeking an order that the evidence the minister used to make his decision be produced.

It is also seeking costs and any further relief the court deems reasonable.

None of AIM's allegations have been tested in court. The Department of Environment has not yet filed a response and declined to comment Thursday. "The Department of Environment and Local Government will not comment on matters before the court," spokesperson Clarissa Andersen said in an email.

"AIM has no comment at this time," Fredericton lawyer Romain Viel said in an email.

Operations remain suspended

Even if AIM succeeds in getting the Department of Environment suspension lifted, its salvage dealers licence for the port site remains revoked, Department of Justice and Public Safety spokesperson Allan Dearing confirmed Thursday, and operations remain suspended.

Public Safety Minister Kris Austin revoked AIM's approval under the province's Salvage Dealers Licensing Act on Dec. 29.

On Wednesday, the province announced AIM can resume accepting material at its Saint John, Moncton and Fredericton sites after inspections determined they now comply with the national fire code.

But that relates to the company's east Saint John site, on Recycling Street, not the west side port location where the fire occurred.