Decision Date: April 10, 2019

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 16(1)(b), 16(4); permit amendment; air emissions; sulphur dioxide; hydrogen chloride; wood waste incineration; rail ties

Atlantic Power Preferred Equity Ltd. (“Atlantic”) owns and operates a biomass-fired electricity generating facility in Williams Lake, BC. The facility has operated since 1993, and uses various types of wood waste as fuel. Atlantic’s permit authorizes the discharge of emissions to the air from the facility.

In October 2015, Atlantic applied for an amendment to its permit, so that up to 50% of the facility’s fuel could be rail ties on an annual basis. Previously, only 5% of its fuel could be rail ties. The rail ties are treated with creosote and/or pentachlorophenol as a preservative. In support of its application for the amendment, Atlantic provided the Director with several reports including an air dispersion modelling report which modelled the predicted emissions if the facility burned 50% rail ties, and a human health risk assessment based on the predicted emissions when burning 50% rail ties.

As part of the application process, Atlantic engaged in a public notification and consultation process. Some members of the public, including some of the Appellants, expressed concerns regarding the potential adverse effects on human health and the environment from burning rail ties.

In September 2016, the Director, Environmental Management Act (the “Director”), Ministry of Environment, granted the permit amendment subject to certain conditions. In addition to allowing up to 50% of the facility’s fuel to be rail ties on an annual basis, the amendment imposed new emission limits for many air contaminants including hydrogen chloride (HCl), sulphur dioxide (SO2), polycyclic aromatic hydrocarbons (PAH), chlorophenols, chlorobenzene, trace metals, and dioxins and furans. Prior to the amendment, the permit only regulated the emission of particulate matter and nitrogen dioxide (NO2).

The Appellants filed separate appeals against the permit. Their grounds for appeal included allegations that the amendment would adversely affect air quality in Williams Lake due to the emission of SO2, HCl, particulate matter, PAH, and other contaminants; the Director erred by relying on incomplete data or incorrect assumptions; and, the monitoring and reporting requirements in the amendment were inadequate. Some of the Appellants also raised concerns about the public notification and consultation process. The Appellants requested that the amendment be reversed, or alternatively, varied to address the Appellants’ concerns.

The Board found that the public notification and consultation process complied with, and exceeded, the applicable requirements in the Public Notification Regulation. In addition, Atlantic provided sufficient information about the proposed amendment for the public and stakeholders to provide informed feedback, which the Director considered before granting the amendment. The Board concluded that the public notification and consultation process was not flawed or misleading.

Regarding the potential impacts of the facility’s emissions when burning 50% rail ties, the Board found that the Director relied on adequate information about the predicted contaminant concentrations and dispersion in the Williams Lake airshed. Although there was some uncertainty about what the actual concentrations of some contaminants would be when the facility burns 50% rail ties, the amendment contained a number of requirements designed to manage and mitigate any risks to human health and the environment.

Many of the Appellants’ concerns about air quality focused on the concentration of particulates in the Williams Lake airshed. However, the Board found that the facility contributes a very small portion of the particulates in the airshed, and burning rail ties will make virtually no difference to the amount of particulates emitted by the facility.

The evidence predicted that if the facility burns 50% rail ties, the contaminant that will increase the most is SO2. However, based on the measured pre-existing concentration of SO2 in the airshed, combined with the predicted SO2 output from the facility if it burns 50% rail ties, the Board found that the total ambient concentration of SO2 would be less than 50% of the BC Ambient Air Quality Objective (“AAQO”). The Board held that this provided a substantial margin of safety for the protection of human health and the environment.

The evidence also predicted that the facility’s HCl emissions will increase if the facility burns 50% rail ties. However, the Board found that the ambient concentrations of HCl if the facility burns 50% rail ties were predicted to be well below the Ontario AAQO (there is no BC AAQO for HCl), and the risk of health impacts was predicted to be low. The amendment provided additional protection by imposing an emission limit for HCl and requiring Atlantic to install technology to continuously monitor HCl emissions.

For all other contaminants, the evidence indicated that there would be little or no increase in the facility’s emissions, or ambient concentrations in the airshed, when the facility burns 50% rail ties compared to when the facility burns regular wood waste. Furthermore, the amendment imposed requirements that are designed to protect human health and the environment from any potential harm associated with the facility’s emissions when burning 50% rail ties, including imposing new emissions limits and monitoring requirements.

The Board also found that the amendment imposes additional requirements to control and mitigate any dust and emissions arising from the transportation, handling, and grinding of rail ties.

However, the Board noted that although the technical reports and risk assessments were based on the assumption that the facility would burn no more than 50% rail ties at any given time, the amendment did not impose such a requirement. The 50% limit in the amendment was based on the annual proportion of fuel burned, and not the amount burned at any given time. Atlantic’s evidence was that it did not intend to burn more than 50% rail ties at any given time, and it expected to burn 25 to 30% rail ties most of the time. Consequently, the Board concluded that imposing a daily limit of 50% rail ties, and reducing the annual percentage of rail ties to 35% from 50% of the fuel mix, would allow Atlantic to meet its fuel needs, while taking a more cautious approach given that there was some uncertainty regarding the actual increase in some contaminants that would be emitted from the facility when burning rail ties. The Board ordered that the amendment be varied accordingly. The Board also ordered some minor changes to the reporting and monitoring requirements in the amendment.

Accordingly, the appeals were allowed, in part.