Decision Date: March 8, 2010

Panel: Alan Andison, Monica Danon-Schaffer, Robert Wickett

Keywords:  Environmental Management Act – ss. 5, 31(1), 139(5); Air Quality Management Bylaw No. 937 – definition of ‘air contaminant’, ss. 3.1, 4.1, 4.4; permit; odour; jurisdiction; reasonableness

West Coast Reduction Ltd. (“West Coast”) appealed two separate amendments of an air emission permit pertaining to the rendering plant it operates in Vancouver, BC.  The amendments were issued by the District Director, Greater Vancouver Regional District (the “District Director”).  In both decisions, the District Director imposed requirements, conditions, criteria, standards, guidelines and objectives in relation to odour emissions from the plant.  The objective was to reduce the amount of odour emitted from the plant.  The 2008 amendments fully replaced, and were more stringent than, the 2007 amendments.

The plant began operations in 1964, and has operated under an air emission permit since 1992.  The plant collects and processes approximately 1.6 million pounds of animal by-products per day, and produces products such as refined animal fats and protein meals that are used in pet food and animal feed.  The plant also collects and refines used cooking oil and grease from restaurants.  Depending on the wind direction and weather conditions, odours from the plant may travel to nearby residential areas.  Although West Coast made efforts over the years to reduce odour emissions from the plant, West Coast and the Greater Vancouver Regional District received many complaints about the odours.  Beginning in 2004, there was a significant increase in complaints from the public.  The District Director acknowledged that he made the amendments in response to increasing public complaints about the odour from the plant.

West Coast appealed the amendments on the basis that they were made without legal authority, and were unreasonable.

Four people who live near the plant (the “Residents”) also appealed (Appeal Nos. 2007-EMA-008 & 2008-EMA-004), arguing that the amendments did not do enough to reduce the odours emitted by the plant.

The Board heard the appeals together in a hearing that took approximately three weeks, spread out over several months.

The Board found that the District Director exceeded his jurisdiction when he issued the amendments.  Specifically, the Board found that he had no jurisdiction under section 4.4 of the Air Quality Management Bylaw No. 937 (the “Bylaw”) to amend the permit in the manner that he did.  Section 4.4 of the Bylaw authorizes unilateral permit amendments that are “necessary for the protection of the environment.”  The evidence showed that the District Director could not have properly determined, based on the information available to him, whether the amendments would protect the environment by producing acceptable air quality in the community.  The Board found that the amendments were more likely an attempt to appease a relatively small number of individuals who frequently complained about the odour.  The Board also found that there was insufficient evidence to establish that West Coast was responsible for all of the odours that were the subject of the complaints.

In addition, the Board found that an odour is not a “substance”, and therefore an odour does not fall within the definition of “air contaminant” in the Bylaw and the Environmental Management Act.  The Board also noted that no BC legislation has placed specific numerical limits on odours.  However, the Board found that odour is capable of causing air pollution, and may be subject to monitoring requirements.

Further, the Board found that the District Director’s imposition of odour limits, as measured in “odour units”, as an enforcement tool was unreasonable and inappropriate.  In particular, the Board found that “odour units” are a subjective and imprecise measurement tool, and have been developed based on data and assumptions that are not readily applicable to environmental odours, especially for the purposes of enforcement.

Finally, the Board found that the District Director correctly considered the plant’s importance to agriculture in the province before he amended the permit.

For all of these reasons, the Board rescinded the 2007 and 2008 amendments.  The Board also made several recommendations aimed at assisting the parties to find a mutually agreeable resolution to this longstanding conflict.

Given the Board’s findings, it concluded that it could not grant the remedies sought by the Residents, and their appeals were dismissed.  The Board issued its decision on the Residents’ appeals in a separate companion decision (see Don Dickson, et al v. District Director of the Greater Vancouver Regional District (Decision Nos. 2007-EMA-008(b) and 2008-EMA-004(b), issued March 8, 2010)).

Accordingly, West Coast’s appeals were allowed.