Decision Date: January 23, 2008

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

Keywords: Waste Management Act – s. 3, s. 10, s. 24; Agricultural Waste Control Regulation – s. 2; Code of Agricultural Practice for Waste Management – s. 18, s. 19, s. 20; GVRD Air Quality Management Bylaw No. 937 – s. 4.1; air emissions; jurisdiction; greenhouses; wood-fired boiler

Houweling Nurseries Limited (“Houweling”) operates greenhouse facilities in Delta, BC. Houweling had been operating under an air quality permit (the “Permit”) that was originally issued by the Greater Vancouver Regional District (the “GVRD”) in 1985. In 1997, the Permit was amended, requiring Houweling to phase out the use of wood fuel and to instead burn natural gas in the boilers used to heat the greenhouse. In 2001, Houweling applied to the District Director of the GVRD (the “District Director”) for a permit amendment to reactivate its wood-fired heaters. The District Director denied Houweling’s application, and Houweling appealed the District Director’s decision.

The first issue considered by the Board was whether it had the jurisdiction to decide whether the District Director had the jurisdiction to regulate emissions from Houweling’s greenhouse facility. The Board found that it had the jurisdiction to consider questions of law, including the question of whether the District Director had the jurisdiction to regulate emissions from Houweling’s facility.

The second issue considered was whether the GVRD had the jurisdiction to regulate emissions from wood-fired heaters used to heat agricultural operations through the issuance of permits under Air Quality Management Bylaw No. 937 (the “Bylaw”). The Board considered the legislative scheme created by the Waste Management Act (the “Act”) and the Agricultural Waste Control Regulation (the “Regulation”), and found that the legislative intent was to allow the Regulation to provide an exemption from the general prohibition against the introduction of waste into the environment found in section 3 of the Act. The intent in creating the Regulation and the attached Code of Agricultural Practice for Waste Management (the “Code of Practice”) was to establish clear standards for dealing with certain types of waste and to reduce the need for permits and other types of approvals. The Board further found that the purpose of sections 18 and 20 of the Code of Practice was to authorize the use of wood waste as fuel for wood-fired boilers in agricultural operations and to set maximum levels for particulate emissions and opacity from those boilers. The Board also concluded that the GVRD could not require a permit for those matters because they were already regulated by the Regulation. Therefore, permits could not be required for those matters, as long as agricultural operations complied with the standards set out in the Code of Practice.

As a result, the Panel determined that, although section 24 of the Act gave the GVRD broad authority over waste discharge, including air contaminants, within its region, permits in relation to the burning of wood waste in agricultural operations could only be issued by the GVRD in relation to matters not already covered by the Regulation (i.e., matters other than particulate matter, opacity and odour emitted by wood-fired boilers, or the use of other fuels).

The Board also found that the Bylaw did not conflict with the Act or the Code of Practice, as it did not give specific authority to further restrict the use of wood-fired heaters in a manner inconsistent with the Act or the Code of Practice. There was, therefore, no need to resort to the legal principles for resolving conflicts between laws.

In conclusion, the Board decided that Houweling’s use of its wood-fired heaters was governed by the Regulation, and that it did not require a permit (or permit amendment) from the GVRD to operate them in accordance with that regulation. However, the application for a permit amendment was sent back to the District Director for reconsideration of matters relating to the use of back-up fuels and any matters not covered by the Regulation.

Accordingly, the appeal was allowed.