Decision Date: May 21, 2019

Panel: Norman Yates, Teresa Salamone, Howard Saunders

Keywords: Environmental Management Act – s. 31; permit; air emissions; compost facility; odour; mediation; consent order

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. 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, 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 locations at the facility. 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.

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 on-site 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 Combined Heat and 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 or otherwise processed with other compostables in the Receiving Hall, and food waste. The aging piles (to which composted materials were transferred from the CASPs), 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 finished compost screening pile, and the Energy Garden.

23 appeals against the Permit were filed by individuals residing in Richmond or surrounding municipalities, who asserted that odours from the facility adversely affect the environment and their health, and/or interfere 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 individual residents.

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 raised a constitutional question that challenged the District Director’s 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 had the constitutional jurisdiction to 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. The food waste was mixed with green landscaping waste or commingled waste in the Receiving Hall before it 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 was scheduled to begin, Harvest announced its intention to 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 facilitated by a Board member who was not a member of the hearing panel. The hearing was temporarily adjourned. The mediation process resulted in a settlement between Harvest, the District Director, and Richmond, 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. However, the other appeals were not resolved. The Board decided the other appeals in separate decision.

Accordingly, with the consent of Harvest, the District Director, and Richmond, Harvest’s appeal was allowed, in part.