GFL Environmental Inc.; Michael Dumancic; Nathalie McGee; Meaghan Lyall; Margaret & Foster Richardson; Wendy Betts; David Frame; Carol Ann La Croix; Joss Rowlands; Shelley Lee; Barry Mah; Trish Steinwand; Harry Dhaliwal; Joan Hislop; Douglas Burgham; Jennifer Burgham; Douglas McDougall; Michael W. Betts v. District Director, Environmental Management Act
The City of Delta
Decision Date: March 12, 2021
Panel: Brenda Edwards, Linda Michaluk, Reid White
Keywords: Environmental Management Act – ss. 14, 31; permit; odour; air contaminant; compost facility
GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility holds a licence issued by Metro Vancouver to accept certain types of organic waste including food waste and yard waste, from Vancouver, Delta, and other regional municipalities for processing into compost.
In August 2018, the District Director for Metro Vancouver issued an air quality management permit to GFL under the Environmental Management Act (the “Act”) and Greater Vancouver Regional District Bylaw No. 1028, 2008 (the “Bylaw”). The permit authorized GFL to discharge air contaminants from the facility, subject to numerous terms and conditions, until September 30, 2023. In particular, the permit sought to control odours emitted by the facility, which were the subject of many complaints from nearby residents. The permit also contemplated that the existing unenclosed facility would continue operating while GFL was building a new enclosed facility that would begin operations during the term of the permit.
GFL appealed many of the requirements in the permit. In general, GFL submitted that the permit was unduly prescriptive, its requirements purporting to regulate odours were unscientific and not advisable for the protection of the environment, and compliance with some of its requirements would actually cause more odours from the facility. It also submitted that the new enclosed facility would incorporate technology to significantly reduce odours, such that many permit requirements would become irrelevant or unnecessary.
The Board also received 17 appeals from residents, who generally submitted that the permit was inadequate to address the odours from the facility.
All the appeals were heard at an oral hearing that began in June 2019 and concluded in October 2020, involved numerous adjournments and interim applications, and included a substantial amount of evidence.
First, the Board confirmed that when it conducts appeals as a new hearing and considers evidence that was not before the District Director, as the Board did in this case, it owes no deference to the District Director.
Next, the Board found that although the District Director was not required to issue written reasons for his decision, his failure to provide written reasons in this case resulted in an unfair process that was only cured by the appeal process.
Turning to the merits of the permit, the Board found that the permit relied on a flawed compliance mechanism based on “odour units”, an odour measurement system that is not found in BC legislation and is under scientific review due to concerns about its accuracy and effectiveness. Based on the evidence, the Board held that relying on odour units to enforce an emission limit in the permit was not advisable for the protection of the environment. The permit requirements that relied on odour units were not scientifically sound and were unenforceable. Therefore, the Board directed the District Director to amend the permit by deleting all references using odour units.
Similarly, the Board found that the permit unlawfully attempted to control the discharge of “odorous air contaminants” based on an approved person’s recognition of odour from the facility in excess of the odour unit limit in the permit; i.e., the “sniff test”. The Board held that an odour is not a substance; rather, it is an interaction of a substance with the olfactory senses. Therefore, an odour does not fall within the definition of “air contaminant” in the Bylaw or the Act. The Bylaw authorizes the District Director to regulate “air contaminants”, but not odours. Therefore, the District Director had no authority to limit the discharge of odours or odorous air contaminants based on the sniff test, and the permit requirements relating to “odorous air contaminants” and the sniff test were not advisable for the protection of the environment. The Board directed that those requirements be deleted from the permit. However, the Board also directed that the permit be amended to require GFL to prepare an Odour Management Plan that identified air contaminants emitted from the facility that are odorous, and GFL’s practices and technologies for reducing and controlling the emission of those air contaminants.
In addition, the Board found that the permit should be extended to September 1, 2026, which was six years after GFL completed improvements at the facility for controlling odours. The Board found that this would allow GFL sufficient time to address any issues arising during the commissioning of new technology at the facility and demonstrate whether it can comply with the permit.
The Board found that some of the other requirements in the permit were unduly prescriptive, unnecessary, and not advisable for the protection of the environment. In particular, some requirements improperly attempted to regulate composting operations at the facility, rather than air emissions. The Panel directed that such requirements be removed from the permit.
Regarding the resident appellants’ concerns about odours from the facility, the Board noted that the permitting scheme in the Act and the Bylaw is not based on a ‘zero discharge’ approach. The resident appellants were obligated to provide persuasive evidence, such as medically verified or scientifically established evidence, that emissions from the facility caused or could cause adverse health effects or material physical discomfort to humans, or damage to the environment. Although some residents testified about their experience of odours they attributed to the facility, and their belief that the odours adversely affected their health, the resident appellants provided no expert evidence about the actual health impacts of emissions from the facility. The Board held that there was insufficient evidence to conclude that air contaminants from the facility caused or could cause adverse health effects or material physical discomfort to humans.
However, the Board made several recommendations, including that the District Director work with GFL to establish an advisory group with residents to share information about the operation of the facility. The Board also recommended that Metro Vancouver review its complaint process to determine how it might provide feedback to residents on the results of their complaints, including whether the complaint was substantiated and whether remedial action was taken.
Accordingly, the Board ordered that GFL’s appeal was allowed, and the resident appellants’ appeals were allowed, in part.