Decision Date: May 21, 2019

Panel: Norman Yates, Teresa Salamone, Howard Saunders

Keywords: Environmental Management Act – s. 31; permit; air contaminant; air emission; compost facility; odour; pollution

Harvest Fraser Richmond Organics Ltd. (“Harvest”) operates a composting and bioenergy facility near the City of Richmond, BC. The Vancouver Fraser Port Authority (the “Port Authority”) leases the land to Harvest on behalf of the federal Crown. The composting facility began in 1993 as a smaller operation that handled garden waste. In 2010, following an environmental review, the Port Authority issued a permit authorizing Harvest to commence construction of an anaerobic digester and biogas plant.

In 2012, Harvest applied to the Greater Vancouver Regional District (“Metro Vancouver”) for an air emissions permit for the facility. In 2013, the District Director for Metro Vancouver issued an air quality permit to Harvest under the Environmental Management Act (the “Act”) and Bylaw No. 1028, 2008 (the “Bylaw”), authorizing Harvest to discharge air contaminants from the facility.

In September 2016, following a public consultation process, the District Director issued a renewed air quality permit (the “Permit”) to Harvest. By that time, the facility was processing between 200,000 and 250,000 tonnes of organic matter per year, including food waste, and Metro Vancouver had received numerous public complaints regarding odours that were attributed to the facility.

The Permit authorized the release of various air contaminants from several sources at the facility. The facility’s composting process used a combination of an enclosed anaerobic digesting system, two covered aerated static piles (“CASPs”), and open-air aging piles. The enclosed system, known as the Energy Garden, was an anaerobic composting system designed to break down commercial food waste. The Energy Garden consisted of a large warehouse (the “Receiving Hall”), an anaerobic digester that produced biogas, and a power unit that burned the biogas to produce electricity. The CASPs aerobically processed yard waste, mixed food scraps and yard waste, the digestate generated by the anaerobic digester, and food waste. Composted materials were transferred from the CASPs to aging piles that fed into screening piles and storage piles. The screening piles were used for the final finishing of the compost. The completed product was placed in piles for storage awaiting sale. Biofilters were used to oxidize and remove odours and other air contaminants emitted from the CASPs, the screening pile, and the Energy Garden.

The Permit included a number of new conditions and requirements, including a condition that the District Director may order the facility to stop receiving food waste if he determined that malodourous impacts from the facility exceeded a threshold (the “Sniff Test”) set out in the Permit.

23 appeals against the Permit were filed by individuals residing in Richmond or surrounding municipalities, who asserted that odours from the facility adversely affected the environment and their health, and/or interfered with their ability to enjoy breathing fresh air where they live, work, recreate, etc. Four of those appeals were subsequently withdrawn, leaving 19 appeals by residents (the “Group Appellants”).

In addition, Harvest appealed the Permit on several grounds, including that the Sniff Test and other aspects of the Permit were arbitrary, vague, unreasonable, and/or punitive. Harvest also challenged the District Director’s constitutional jurisdiction to regulate air emissions from the facility given that it is located on federal land. In a separate decision, the Board concluded that the District Director has the constitutional jurisdiction to regulate air emissions from the facility and issue the Permit (Harvest Fraser Richmond Organics Ltd. v. District Director, Environmental Management Act, (Decision Nos. 2016-EMA-175(b) and 2016-EMA-G08(a), May 12, 2017)).

In the fall of 2016, Harvest took the electricity-generating potential of the Energy Garden out of operation, but the Receiving Hall continued to be used to receive bulk and packaged commercial food waste. Food waste was mixed with garden waste or commingled waste in the Receiving Hall before being incorporated into the CASPs. Harvest also took one of two CASPs out of operation in June 2018.

Less than two weeks before the appeal hearing began, Harvest announced that it would stop receiving food waste by April 1, 2019, and to stop using (and not replace) the remaining CASP after June 1, 2019.

After the appeal hearing began, the parties participated in a mediation, and the hearing was temporarily adjourned. The mediation resulted in a settlement of Harvest’s appeal, which was reflected in a consent order amending the Permit (the “Amended Permit”). Among other things, the Amended Permit deleted the authorization for the remaining CASP as a source of air contaminants. The Amended Permit also added a receiving area as a source of air contaminants, narrowed the parameters for the Sniff Test, and modified the permitting process in a manner that contemplated public consultation if Harvest chose to recommence using anaerobic composting and energy generation.

As a result, Harvest’s appeal was resolved to the satisfaction of Harvest, the District Director, and Richmond. The Board issued a separate decision on Harvest’s appeal (Harvest Fraser Richmond Organics Ltd. v. District Director, Greater Vancouver Regional District, (Decision No. 2016-EMA-175(c), May 21, 2019)).

However, the Group Appellants’ appeals were not resolved, and the hearing resumed to address those appeals. The original Permit remained the focus of the hearing, with the understanding that the Board would also hear submissions regarding the Amended Permit.

The Group Appellants submitted that the Permit and the Amended Permit did not adequately protect their health and the environment, and did not prevent pollution. They submitted that contaminants from the facility are offensive odours that negatively affect the air and their quality of life, and result in adverse health impacts and pollution.

The Board considered the District Director’s jurisdiction under the Actthat the District Director may address odours through a permit, including requiring odour monitoring in the community to determine whether the permitted emissions are damaging human health or the environment, and/or are causing pollution.

Based on the evidence, the Board found that the Group Appellants experienced adverse impacts from odours coming from the facility, including an inability to enjoy outdoor activities, burning and watery eyes, and nausea. Moreover, based on evidence from the Group Appellants, and confirmed by scientific evidence and modelling, high levels of odour are experienced less than five kilometres from the facility, and odour from the facility is identifiable. All of the parties acknowledged that the odour was particularly bad in 2016, but improved after Harvest made changes to its operations. However, there was compelling evidence that, after the Permit was issued, significant odour continued to be experienced on occasion, and it adversely affected the Group Appellants. This indicated that the Permit was not adequately addressing the odorous air contaminants from the facility.

Regarding the appropriate remedy, the evidence showed that Harvest had reduced, and could further reduce, malodorous emissions to some degree. The Board found that Harvest’s changes to operations at the facility, including the cessation of aerobic and anaerobic composting of food and commingled waste, the changes incorporated into the Amended Permit, and the restriction on odours beyond the facility boundary, should adequately resolve the Group Appellants’ concerns. Accordingly, the Group Appellants’ appeals were allowed, in part.