Decision Date: March 19, 2013

Panel: Alan Andison

Keywords: Environmental Management Act – s. 104; preliminary decision; stay application; permit; air emissions; monitoring

Pinnacle Renewable Energy Inc. (“Pinnacle”) appealed a decision issued by the Director, Environmental Management Act, Ministry of Environment, to amend Pinnacle’s air emissions permit.

Pinnacle owns and operates a mill (the “Meadowbank facility”) near Strathnaver, B.C., that produces wood pellets. Although the Meadowbank facility is not located in a highly populated area, the facility does have immediate neighbors.

In 2008, the permit was issued to authorize air emissions from the Meadowbank facility. Among other things, the permit required Pinnacle to conduct ambient air quality monitoring. Pinnacle installed a monitoring station on the Meadowbank facility, and a second monitoring station on private land owned by a third party (the “Mead Property”) approximately 1.25 kilometers west-northwest of the Meadowbank facility. The monitoring stations sampled the particulate levels in the air, as well as the meteorological conditions of wind speed, wind direction, barometric pressure, and temperature. An annual report summarizing the monitoring data, and any recommendations and conclusions, had to be submitted to the Ministry.

Sometime after the monitors were installed, Pinnacle installed a wet electrostatic precipitator (“WESP”) at the Meadowbank facility to reduce particulate emissions.

On April 1, 2012, the monitoring station at the Meadowbank facility was taken out of service with Ministry approval.

On June 1, 2012, Pinnacle applied to the Director for an amendment to the permit, to remove the monitoring station from the Mead Property. Pinnacle believed the WESP had reduced particulate emissions to the provincial standard, and therefore, the monitoring station on the Mead Property could be removed.

However, the Director never responded to Pinnacle’s June 1, 2012 application, and the monitoring system at the Mead Property remained intact.

In November 2012, the owner of the Mead Property requested that Pinnacle remove the monitoring station. The land owner believed the monitoring station was negatively affecting their ability to sell the Mead Property.

In early January 2013, Pinnacle applied for a permit amendment, to remove the monitoring station from the Mead Property and relocate the equipment.

The Director issued a decision authorizing a permit amendment to allow the temporary removal, and permanent relocation, of the monitoring station. The amendment was subject to conditions that the Director must be notified of the new location by February 28, 2013, and the monitoring station would be operational at the new Director-approved location by April 30, 2013. On January 11, 2013, Pinnacle removed the station from the Mead Property.

Pinnacle appealed the Director’s decision, on the grounds that it was unnecessary to relocate the monitoring station, as it was ineffective. As a preliminary matter, Pinnacle requested a stay of the Director’s decision, pending the Board’s decision on the merits of the appeal.

The Director opposed the stay application.

In determining whether the stay application ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). With respect to the first stage of the test, the Board found that the appeal raised serious issues regarding the basis for the Director’s decision, including questions of fact. Therefore, the Board proceeded to consider the second part of the test.

Regarding the second part of the test, the Board held that Pinnacle’s interests would suffer irreparable harm if a stay was denied. The Board found that Pinnacle would incur significant costs in connection with relocating the monitoring station, and Pinnacle would be unable to recover those costs even if it is successful in the appeal. Also, if a stay was denied, but Pinnacle’s appeal is ultimately successful, Pinnacle would needlessly devote significant time and effort to the relocating the monitoring system.

Turning to the third part of the test, the Board weighed the potential harm to Pinnacle’s interests if a stay was denied, against any potential harm to the Director’s interests if a stay was granted. The Board found that the balance of convenience favoured granting a stay. In particular, the Board found that Pinnacle would suffer irreparable harm to its financial and commercial interests if a stay was denied. Conversely, a brief period of lost monitoring data would not result in irreparable harm to the Ministry or the environment. The Ministry was in possession of Pinnacle’s 2012 data, which could be relied upon should the Meadowbank facility require any modification in the interim. Monitoring would recommence if the Board finds, in deciding the merits of the appeal, that it is necessary. Although it is in the public interest for the Ministry to collect this data, a delay in doing so until the merits of the appeal are decided will not significantly impair the Ministry’s ability to protect human health and the environment.

Accordingly, the stay application was granted.