Decision Date: May 26, 2016

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 25; preliminary decision; stay application; approval; air emissions; public interest

Fourteen individuals and organizations (collectively, the “Appellants”) filed separate appeals against an approval issued by the District Director, Environmental Management Act (the “District Director”), of the Greater Vancouver Regional District (“Metro Vancouver”). The approval authorizes Ebco Metal Finishing L.P. (“Ebco”) to discharge contaminants to the air from a galvanizing facility located in Surrey, BC. The approval is valid for nine months, from March 1 to November 30, 2016. The approval was issued under both the Greater Vancouver Regional District Air Quality Management Bylaw and section 15 of the Environmental Management Act (the “Act”).

The approval authorizes the discharge of a maximum of 7 mg/m3 of zinc, 20 mg/m³ of particulates, and 0.024 t/year of sulphuric acid. The approval also regulates the maximum emission flow rates of four emission sources at the facility. The approval contains numerous conditions, including requirements for Ebco to submit certain plans and reports to the District Director on specific dates during the term of the approval. For example, Ebco had to submit plans, for the District Director’s review and approval, setting out the methodologies it would use for emission testing and air dispersion modeling. Ebco also had to provide the District Director with reports discussing the predicted maximum concentrations of the emissions and the potential impacts of the emissions on human health and the environment.

In their Notices of Appeal, thirteen of the Appellants requested a stay of the approval, pending the Board’s decision on the merits of the appeals.

The District Director took no position on the stay applications.

Ebco opposed the stay applications.

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 appeals raised serious issues which are not frivolous, vexatious, or pure questions of law. The issues included whether the District Director had sufficient information about the potential impacts of the emissions before he issued the approval, whether he was biased or erred in exercising his discretion, and whether the emissions may cause harm to human health and the environment. Consequently, the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found that the Appellants, as the applicants for a stay, had the onus of establishing that their interests would likely suffer irreparable harm if a stay was denied. The Board found that they had failed to do so. The Appellants asserted that the emissions would cause harm to the health of humans, horse, and fish, and harm to soil, water, crops, and business interests. Some of the Appellants claimed that scientific studies supported their assertions. However, the Appellants cited no scientific studies, or evidence such as a letter from a medical professional or veterinarian, to support their assertions. The Appellants also failed to identify the levels at which the air contaminants may cause the alleged adverse effects. The Board found that some of the Appellants may experience additional costs, such as costs to test their crops or a temporary loss of some customers, if a stay was denied, but there was no evidence that they would suffer irreparable harm to their business interests.

Turning to the third part of the test, the Board weighed the potential harm to the Appellants’ interests, if a stay was denied, against the potential harm to Ebco’s interests if a stay was granted. The Board found that, although the Appellants would suffer some additional costs if a stay was denied, Ebco would also suffer some additional costs if a stay was granted. Based on those considerations, the balance did not clearly tip in favour of either party.

The Board then considered that the Act promotes certain public interests, including the regulation of waste emissions for the protection of the environment and human health. The Board found that, in deciding a preliminary application for a stay of an approval, there is a general presumption that the waste discharge authorized by the approval is subject to requirements that provide adequate protection for human health and the environment. However, in the present case, the approval contained requirements for Ebco to provide the District Director with plans and reports which will provide information about the predicted dispersion of the emissions and the effects on human health on the environment. On their face, those requirements indicated that the District Director did not have this type of information when he issued the approval. Moreover, Ebco provided no scientific or technical information to the Board in support of its claims that the emissions would cause no harm, and Ebco acknowledged that it had no previous emission data for sulphuric acid. In these circumstances, the Board found that it could not presume that the approval, on its face, provided adequate protection for human health and the environment, or that denying a stay would not pose an unreasonable risk of harm to human health or the environment. Rather, the Board found that denying a stay would allow Ebco to emit contaminants that had unknown dispersion characteristics and impacts.

For those reasons, the Board concluded that the balance of convenience favoured granting a stay pending Ebco providing the District Director with certain plans and reports that were required in the approval, although Ebco was allowed to operate in accordance with the approval to the extent necessary for completing the emission testing required by the approval. The Board ordered that, once those plans and reports were completed to the District Director’s satisfaction, the District Director must advise the Board and the parties, and the Board would then rescind the stay.

Accordingly, the stay applications were granted.