Decision Date: February 5, 2003

Panel: Alan Andison, Cindy Derkaz, Dr. Robert Cameron

Keywords: Waste Management Act– ss. 1(1) definition of “environment”, 13(1)(b), 13(4)(e), 13(4)(f); Sulphur Content of Fuel Regulation– ss. 1 definition of “fuel”, “sulphur content”, 2(1), 3(5); power boilers; air contaminants

The Appellants filed separate appeals against the decision of the Assistant Regional Waste Manager (“Assistant Manager”) make a temporary amendment to a waste permit issued to NorskeCanada. The temporary amendment authorised NorskeCanada to complete a ten week Tire Derived Fuel (“TDF”) trial on Power Boiler #19, at its pulp and paper mill in Powell River, BC.

The Board first considered whether the Assistant Manager should have assessed the impact that using TDF in Power Boiler #19 would have on the scrap tire recovery program and the Tire Derived Product (“TDP”) market in BC. The Board concluded that although the Assistant Manager has the discretion to consider such implications, the temporary amendment has no impact on the scrap tire recovery program and the TDP market in BC because the TDF used for the testing is from a stockpile that is unsuitable for TDP. However, the Board varied the permit to require that this stockpile be the source of TDF.

On the issue of whether there was adequate consultation with the Sliammon First Nation, whose original village is situated at the pulp mill site, the Board concluded that the Sliammon First Nation did not prove, on the balance of probabilities, that there was a requirement of consultation respecting the infringement of aboriginal rights or title.

The Board further found that the temporary amendment would not cause an unacceptable adverse effect on human health or the environment. The Board found that there was no evidence that the use of TDF at other pulp mills resulted in any exceedances of regulatory standards. The Board also found that the Power Boiler is more efficient than comparable boilers, and should produce lower emissions. In addition, the Board noted that the test could be terminated at the first sign of any exceedances of allowable emission levels. The Board was concerned that sulphur dioxide emission limits allowed under the amendment may be excessive, but found that it did not have sufficient evidence before it to lower the limits for the purpose of the testing. The Board further noted that the amendment allows a short term test in which emission levels can be monitored to determine actual emission levels, and in these circumstances, it is not unreasonable to permit an emission limit that may be higher than would be permitted over the long term.

Finally the Board made several minor amendments to the permit, including requirements that the baseline data for the trial be made available to the public and that NorskeCanada shall conduct source testing for PAHs and volatile organic compounds (VOCs) at the 2% TDF addition rate.

The appeal was allowed in part.