Decision Date: December 19, 2005

Panel: David H. Searle, Q.C., Sean Brophy, Dr. Robert Cameron

Keywords: Environmental Management Act – ss.1(3), 6(2),(3) and(4); Waster Discharge Regulation – ss.2(1) and (2); waste; styrene; air contaminant; pollutant

Western Canoeing & Kayaking Inc. (the “Appellant”) appealed a requirement contained in its air contaminant discharge permit that required the installation of two emission stacks at its canoe and kayak manufacturing facility.  The requirement to install the stacks was a response to public complaints about odours and particulate emissions from the facility.  The permit was issued to the Appellant under the Environment Management Act (the “Act”).  The Appellant also requested that the name of the permittee be changed from Western Canoeing & Kayaking Inc. to Western Canoeing Manufacturing Inc.

The Appellant raised three main arguments in this appeal.

First, the Appellant contended that styrene, the emission that was allegedly causing the odours, is not toxic.  The Appellant submitted numerous documents to support that submission including statements from past employees as well as letters from businesses close to the Appellant’s facilities.  However, the Board gave little weight to those documents because the Appellant did not call any witnesses to support the documents, nor was the Director able to question any witnesses regarding the documents.

Second, the Appellant expressed concerns regarding the installation of stacks.  One was that, by emitting styrene through stacks, people living in the condominiums near the facility might detect the odours and file complaints.  The other was that the presence of stacks could indicate to the public that the business produces pollution.  The Appellant also submitted that the odours were really produced by the other businesses close to the Appellant’s facilities.  No witnesses or facts were presented to support this last submission.

Third, the Appellant asserted that styrene did not fall under the definition of “air contaminant” in the Act, that there is no legal authority for either a permit or stacks, and that there are no Ministry regulations in respect of these emissions.

The Director stated that the concern was not one of toxicity but simply one of odour.

The Director submitted that the use of stacks would result in sufficiently low styrene concentrations so that no odour would be observed by nearby business operators and nearby residents.  In support of these submissions, the Director called a meteorologist as a witness.  She testified that stacks would address the odour problem.

The Director also submitted that, under current legislation, a permit is required for any discharge from a “prescribed industry, trade or business: and that the Appellant’s manufacturing activity is such an industry.

The Board found that styrene emissions caused material physical discomfort to a number of people, thus falling within the definition of “air contaminant” under the Act, and that its discharge into the environment did cause “pollution”, thus requiring a permit.  Accordingly, the Board held that there was legal authority for both the permit and the requirements for stacks under the Act.

The Board also determined that styrene was being discharged into the environment by the Appellant as “waste”, the definition of which includes air contaminants.  The Board found that styrene may not only be waste from a prescribed industry or activity, but also a contaminant being introduced into the environment and causing pollution.  The legislation is clear that waste cannot be introduced into the environment without a permit.  It is also clear that a Director may require the permittee to construct new works, such as the stacks.

The Board found that discharge through stacks would result in a very low possibility of noticeable odours being detected by neighbours of the Appellant’s facility.

The Board allowed the change of the name of the permittee in the permit as requested by the Appellant.  However, the appeal was dismissed regarding the other issues.