• Fiesta Greenhouses Ltd. v. Director, Environmental Management Act

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    Decision Date: February 3, 2011

    Panel: Alan Andison

    Keywords:  Environmental Management Act – ss. 14, 15; Agriculture Waste Control Regulation – Code of Agricultural Practice for Waste Management – s. 18; approval; greenhouse; agricultural operation; fuel; coal-fired boiler

    Fiesta Greenhouses Ltd. (the “Appellant”) appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment, denying the Appellant’s application for an approval.  The Appellant applied for an approval that would authorize it to discharge air emissions from coal-fired boilers that heat the Appellant’s greenhouses in Campbell River, BC.

    In its greenhouses, the Appellant grows vegetables which it sells at a local farmers’ market and to grocery stores and distributors on Vancouver Island and the Lower Mainland.  The greenhouses are heated from early February until the end of October to support plant growth.  The Appellant started its operations in 2000, and began burning coal in 2001.  The Appellant uses coal that is mined near Campbell River.

    In March 2007, the Ministry advised the Appellant that greenhouse operations are prohibited from discharging waste into the air unless authorized by a permit or approval, and that the Appellant should seek authorization for the air emissions from its boilers.

    In April 2007, the Ministry approved a policy that was to provide a transition period for greenhouses burning coal to change to non-coal fuel sources, and it directed decision-makers to only consider a 15-month approval when considering applications for greenhouses to burn coal.

    In February 2008, the Appellant applied to the Ministry for an approval to burn coal.  In September 2008, the Director denied the application based on concerns about the emissions from the Appellant’s coal-fired boilers.

    In October 2008, the Appellant appealed to the Board, and requested that the Board order the Director to issue an approval authorizing the Appellant to use coal in its boilers.  The Appellant argued that it had investigated the alternative fuels that were locally available, such as wood pellets and natural gas, and they were more expensive and, in some cases, incompatible with the Appellant’s boilers.  The Appellant also argued that it could not afford to renovate its boilers, no one had ever complained about emissions from its boilers, and it provides local food and employment.  The Appellant proposed to continue exploring alternative fuels as they became locally available.

    In December 2008, the Agriculture Waste Control Regulation was amended, and coal was not listed in section 18 of the Code of Agricultural Practice for Waste Management (the “Code”) as one of the fuels approved for use in agricultural operations.

    The Director submitted that coal is not an approved fuel for use in agricultural operations, and the Board should deny the appeal.  The Director also argued that the prohibitions in the Environmental Management Act (the “Act”) that relate to the issuance of permits under section 14 of the Act should also apply to the issuance of approvals under section 15 of the Act; namely, the prohibition in the Code against using coal as a fuel in agricultural operations.

    The Board considered the provisions in the Act that relate to permits and approvals.  The Board found that the prohibitions relating to permits in section 14(3) of the Act – specifically, the application of the Code – do not apply to approvals, which are issued under section 15 of the Act.  In addition, the Panel found that there are policy reasons for not applying those restrictions to approvals.  In particular, approvals are only valid for a maximum of 15 months and they provide decision-makers with flexibility to allow an activity for a short period of time that may not be desirable over the long term, to allow a period of transition to new regulatory standards.

    The Board then considered the evidence presented regarding the Appellant’s operations, and found that particulate emissions from the Appellant’s boilers slightly exceed the previous maximum limit under the Code, and exceed the current maximum limit by 70 mg per cubic metre.  The Board found that it was important for the Appellant to reduce its particulate emissions, but the Board also considered that the Appellant uses coal from a local supplier, that its operations are relatively small, and it sells its products locally.  Although the latter considerations are not identified in the Act, the Board found that they are relevant when considering the overall environmental impact of the Appellant’s operations.  Based on those considerations, and the lack of public complaints about emissions from the Appellant’s operations, the Board decided that it would be appropriate to issue an approval to allow the Appellant to burn coal as an interim measure.  The Board sent the matter back to the Director with directions to issue an approval valid for 15 months from the date of the Board’s decision.

    Accordingly, the appeal was allowed.