Decision Date: April 23, 2020
Panel: Brenda Edwards, Linda Michaluk, Reid White
Keywords: Environmental Management Act – s. 14; Administrative Tribunals Act – ss. 15; permit; odour; air emissions; application for interim order
GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility receives organic waste from Vancouver and other municipalities in the region for processing to produce compost, most of which is utilized for turf/sod farming at the facility. The facility holds a licence issued by the Greater Vancouver Sewerage and Drainage District to accept the following for composting: food waste, yard waste, soiled paper, packaged organic waste, as well as certain industrial organic wastes, certain agricultural organic wastes, and bulk liquids.
In August 2018, the District Director for the Greater Vancouver Regional District issued an air quality management permit to GFL under the Environmental Management Act and Greater Vancouver Regional District Bylaw No. 1028, 2008. The permit authorizes GFL to discharge air contaminants from the Delta facility, subject to numerous terms and conditions.
GFL appealed certain terms and conditions in the permit. It submitted that compliance with those terms of the permit would likely increase the odours from the facility, and those terms conflicted with other permit terms requiring best operating practices.
In addition, the Board received 17 appeals from local residents. In general, they objected to the permit on the basis that odours from the facility are adversely affecting the them, odours have increased over time because GFL is not using best operating practices, and the permit was inadequate to address the odours.
A 15-day oral hearing of the appeals began on June 3, 2019, but did not finish within the time that was planned. The hearing reconvened for 29 more days in October and November, 2019, but a further ten days were required. The hearing was set to reconvene in March 2020.
GFL made an interim application under section 15 of the Administrative Tribunals Act (“ATA”) for adjustments to certain deadlines and requirements in the permit that would take effect on March 1, 2020. In particular, GFL sought an interim variation of permit terms regarding: the use of “odour units” as an emission limit and compliance mechanism effective March 1, 2020, and related reporting requirements; and, setting March 1, 2020 as the start-up date for GFL’s new composting facility (the “New Facility”). For some permit terms, GFL sought extensions to later dates in 2020, and for other terms it sought an extension until after the Board issued its decision on the merits of the appeals. The Board granted GFL’s application for the interim order (Decision No. 2018-EMA-021(d), January 15, 2020) (the “First Interim Decision”).
On April 1, 2020, GFL filed a second application for interim relief, due to the COVID-19 pandemic’s impact on GFL’s construction and commissioning of the New Facility. GFL requested a sixty-day extension of certain deadlines (April 30 or May 1, 2020) that were varied in the First Interim Decision.
Given the unique circumstances of the pandemic, and that the relief sought was purely a variation of the previous interim relief, the Board applied a two-part test: was there an arguable case for which the Board is empowered to give a remedy; and, if so, did the balance of harm favour granting the interim relief?
The Board expressed concern that GFL had provided limited evidence in support of its application. However, the Board held that there was an arguable case that the request for further extensions to the deadlines were necessary and appropriate in the unique circumstances of a pandemic. The balance of harm favoured granting the relief so that the essential services provided by GFL would not cease as of May 1, 2020. It would be contrary to the public interest, in a pandemic, to shutter an essential service provider where, as here, there was some evidence that delays to the construction and commissioning of the New Facility existed because of the pandemic. Granting GFL’s request would provide a further sixty days to identify, assess and develop a plan to address the impacts of the pandemic on the completion of the New Facility.
Accordingly, GFL’s application for interim relief was granted subject to conditions. By June 1, 2020, GFL was required to submit a further application for interim relief that addressed and provided the best available evidence regarding the state of construction at the New Facility, the timeline for readiness to commence operations, the reasons for delays since the appeals adjourned, the steps taken to address delays, and the consequences for GFL, its customers, and the general public if the relief is not granted.