Decision Date: April 26, 2004

Panel: Alan Andison, Dr. Robert Cameron, Phillip Wong

Keywords:  Waste Management Act – s. 3, 24, 33(2), 43, 44; Agricultural Waste Control Regulation; wood fired boiler; pollution prevention order; greenhouse; jurisdiction, appealable order

Houwelling Nurseries Limited (“HNL”) appealed two separate decisions by the District Director of Air Quality (the “District Director”): a pollution prevention order issued to HNL and the refusal of HNL’s application to amend air quality permit.  The permit authorized the discharge of air emissions from HNL’s greenhouse operation located in Delta, British Columbia.  HNL sought to have the Board reverse the order. HNL also submitted that that the Board had jurisdiction over the appeal of the refusal to amend the permit.

The issues in this appeal were whether the Board had jurisdiction under sections 43 and 44 of the Waste Management Act (the “Act”) to hear an appeal of a refusal to amend a permit, and whether the Board should reverse the order.

The Board determined that the District Director’s refusal to amend the permit was not an appealable decision within the meaning of sections 43 and 44 of the Act.  Accordingly, the Board did not have jurisdiction over that appeal, and it was not prepared to make any findings on the merits of the refusal to amend the permit.

The Board determined that the decision to issue the order should be reversed.  The Board found that there was insufficient evidence demonstrating that HNL was out of compliance with the Agricultural Waste Control Regulation or the permit.  In addition, the Board found that there was insufficient evidence on the date the order was issued, to demonstrate that the District Director had reasonable grounds to conclude that HNL’s operations were likely to cause pollution of the environment.

Accordingly, the appeal of the refusal to amend the permit was denied for lack of jurisdiction, and the appeal of the order was allowed.