Decision Date: July 27, 2007

Panel: Alan Andison

Keywords: Environmental Management Act – s. 6, s. 14, s. 31. s. 37; GVRD Air Quality Bylaw No. 937, 1999; Agricultural Waste Control Regulation; Code of Agricultural Practice for Waste Management; air emissions; conflict

Darvonda Nurseries Ltd. (“Darvonda”) appealed the decision of the Air Quality District Director of the Greater Vancouver Regional District (the “GVRD”) to issue an air quality permit (the “Permit”) to Darvonda. The Permit was issued under both the Environmental Management Act (the “Act”) and GVRD Air Quality Bylaw No. 937, 1999 (the “Bylaw”), and authorized air emissions from Darvonda’s greenhouse facilities located in Langley, British Columbia.

Darvonda objected to the Permit because it imposed emission standards that are more restrictive than those set out in the provincial Agricultural Waste Control Regulation (the “Regulation”). Darvonda requested that the Board rescind the Permit on the basis that the District Director had no authority to require Darvonda to obtain a permit. The thrust of Darvonda’s argument was that, since it is an “agricultural operation” as defined in the Regulation, it is exempt from the requirement to obtain a permit as long as it complies with the Code of Agricultural Practice for Waste Management (the “Code of Practice”) set out in the Regulation. Darvonda argued, in the alternative, that the heating at its facilities is “comfort heating”. Therefore, the District Director had no authority to require a permit regulating emissions produced by such heating, because section 6(5)(k) of the Act operates to exempt emissions from comfort heating from the general prohibition against the introduction of waste into the environment.

Regarding the first issue, the Board noted that section 31(4) of the Act and section 4.1 of the Bylaw grant district directors discretion to issue permits for the emission of air contaminants within the GVRD. However, the Board further noted that section 14(3) of the Act prohibits the issuance of permits for the discharge of waste where that discharge is governed by a code of practice or a regulation, unless the latter require a permit. Since the Regulation and the Code regulate the amount of particulate matter, opacity and odour of emissions from wood-fired boilers used in agricultural operations, no permit may be issued to regulate those matters. The Bylaw is also a regulation within the meaning of section 14(3), and it too regulates the emission of air contaminants within the GVRD. But, while it overlaps with the Regulation, it does not conflict with it, insofar as it is possible to comply with both the Bylaw and the Regulation.

The Board found, however, that a district director’s discretion to issue permits under the Act or the Bylaw cannot be exercised in a manner that conflicts or is inconsistent with section 14(3) of the Act or with the applicable provisions in the Regulation. Otherwise, the Act, the Regulation and the Bylaw could not operate together in a coherent manner, as was contemplated by the legislature. As a result, the Board found that district directors have no authority to require a permit that imposes further requirements beyond the requirements set out in the Regulation. Where there are gaps in the Regulation, district directors may issue permits to fill those gaps, but they may not attempt to regulate emissions that the Regulation already regulates. For those reasons, the Board found that the District Director exceeded his authority in issuing the Permit, insofar as it purported to impose requirements beyond those set out in the Regulation with respect to the levels of particulate matter, opacity and odours emitted from the wood-fired boiler used in Darvonda’s greenhouse operation.

Turning to the second issue, the Board found that Darvonda’s greenhouses are heated primarily to encourage the growth and propagation of plants, and not “solely for the purpose of comfort”, as contemplated under section 6(5)(k) of the Act. Therefore, the provision does not apply to exempt the emissions resulting from the heating at Darvonda’s greenhouses from regulation.

Accordingly, the Board found the Permit to be without effect to the extent that it imposed emission standards that exceeded those set out on the Regulation, and allowed the appeal.