Decision Date: April 3, 2012

Panel: Alan Andison

Keywords: Environmental Management Act – s. 101(1); preliminary decision; permit; air emissions; person aggrieved; jurisdiction; standing

Evelyn Armstrong appealed a decision of the Director, Environmental Management Act, Ministry of Environment, to issue a permit to Merritt Green Energy Limited Partnership (“MGE”). The permit authorized MGE to discharge emissions to the air from a “biomass to energy” facility that MGE planned to build in Merritt, BC. The proposed facility included a boiler, certain emission control equipment, and a pneumatic system for collecting flyash and conveying it to a storage silo. The boiler and the flyash collection system were the two authorized sources of air emissions under the permit. The boiler was authorized by the permit to burn untreated wood waste only. Emissions from the boiler would pass through emission control equipment before being discharged through a tall stack. Emissions from the flyash collection system would pass through a filter and then be discharged from an outlet at the top of the storage silo. The permit contained conditions limiting the maximum rate of discharge and maximum concentration of particulate matter in relation to emissions from the boiler and the flyash collection system. Ms. Armstrong’s notice of appeal only referred to the emissions from the latter.

MGE filed an application requesting that the Board dismiss the appeal on the basis that Ms. Armstrong was not a “person aggrieved” by the permit within the meaning of the Environmental Management Act (the “Act”). Section 100(1) of the Act states that a “person aggrieved by a decision” of the Director may appeal that decision to the Board.

In determining whether Ms. Armstrong was a “person aggrieved” by the permit, the Board applied the test set out in Attorney General of the Gambia v. N’Jie, [1961] 2 ALL E.R. 504 (P.C.). That test, which has been applied by the Board in numerous cases, required Ms. Armstrong to disclose sufficient information to allow the Board to reasonably conclude that the permit will or may prejudicially affect her interests.

Ms. Armstrong submitted that she is a person aggrieved by the permit. She advised that she owns a home in Merritt that she intends to live in when she retires. She submitted that the permitted emissions would harm the environment and human health in Merritt, her use and enjoyment of her retirement property, and may adversely affect property values in Merritt.

MGE provided evidence that Ms. Armstrong lives 22 km away from the proposed facility, and tenants occupy her property in Merritt. MGE also provided evidence that her Merritt property is located 1.65 km north of the proposed facility, and the wind blows in that direction 10 percent of the time. MGE submitted that the rate of emissions from the flyash system would be equivalent to that of a standard ventilation hood over a home kitchen stove, and that facility may provide a net improvement in ambient air quality in Merritt because it would burn logging debris that would otherwise be incinerated by open burning. MGE also submitted that the facility may have a positive effect on property values in Merritt, because it would create new jobs, purchase local goods and services, and pay local property taxes.

The Board found that there was uncontested evidence that Ms. Armstrong lives 22 km away from the proposed facility, and there was no evidence that she travels to Merritt on a regular basis for work or any other purpose. The Board also found that Ms. Armstrong provided no information about the potential effects of the permitted emissions on air quality at her home, her health, or her use and enjoyment of her home.

Regarding Ms. Armstrong’s Merritt property, the Board found that even if it were to accept that her intention to live there at an unspecified future date constitutes a personal interest that is relevant to the current issue of standing, evidence of proximity alone does not necessarily lead to the conclusion that a person’s interests may be prejudicially affected. The Board held that Ms. Armstrong’s general concerns about the potential effects of the emissions on the environment and human health in Merritt were insufficient alone to establish that she is a person aggrieved. Although she also expressed more specific concerns about potential harm to water, salmon, and people with lung disorders, the Board found that those concerns were not in relation to her personal interests. She disclosed no information that she has any health concerns that may be affected by the emissions in the future, when she retires to her Merritt property.

She also expressed concern that “chemicals” on airborne particulates may make locally grown food unfit for consumption and her yard unfit for her enjoyment, but the Board found that she did not specify what those chemicals may be or how they may cause the alleged harm. Without more information, and given that the boiler is restricted to burning untreated wood residue, the Board concluded that those concerns were speculative. Finally, the Board found that her assertion that the emissions may adversely affect property values was unsupported by any evidence and was also speculative.

Based on all of the evidence and information, the Board concluded that Ms. Armstrong did not provide sufficient information to establish that her interests would or may be prejudicially affected by the permitted emissions. Consequently, the Board found that the appeal was not within its jurisdiction.

Accordingly, the appeal was dismissed.