Decision Date: November 6, 2017

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 16, 100(1); permit amendment; air emissions; application to strike grounds for appeal

Thomas H. Coape-Arnold appealed a decision of the Director, Environmental Management Act (the “Director”), Ministry of Environment, to amend an air emissions permit (the “Amendment”) held by Pinnacle Renewable Energy Inc. (“Pinnacle”) for its woodpellet manufacturing plant (the “Plant”) located in Lavington, approximately 15 kilometres east of Vernon, BC.

In December 2014, the Ministry issued a permit allowing Pinnacle to discharge contaminants to the air from its new wood pellet manufacturing plant. The permit was jointly appealed by three individuals including Mr. Coape-Arnold (the “2015 Appeal”). They appealed the permit on various grounds, one of which was that the decision-maker failed to consider the emission of volatile organic compounds (“VOCs”) from the Plant. Before that appeal was heard, the Director applied to strike that particular ground of appeal. However, the appeal was resolved by mediation, and the application to strike was never adjudicated by the Board. Thereafter, the Plant operated under the permit, and its emissions were subject to repeated testing.

On an unknown date, Pinnacle applied to amend the permit to discontinue a requirement that air be recirculated through dryers. It requested the amendment to address corrosion issues and a safety issue that presented a fire risk. The Director granted the Amendment, and he included further conditions/requirements on his own initiative.

Mr. Coape-Arnold appealed the Amendment. His Notice of Appeal listed seven grounds for appeal, with a detailed explanation for each ground and the remedies sought.

As a preliminary matter, the Director applied to the Board to “read-down” one ground for appeal in the Notice of Appeal, and to strike two grounds. The Director argued that ground 1 should be read-down to make it clear that this ground only applied to any “increase” in “specific” VOCs resulting from the Amendment. The Director applied to strike grounds 3 and 7 in their entirety. He submitted that ground 3 raised compliance issues that were outside of the Board’s jurisdiction in this appeal. He also submitted that ground 7, which alleged that documents were removed from a public Ministry database for a period of time for no apparent reason, was irrelevant to the Amendment, and there was no indication that Mr. Coape-Arnold was personally aggrieved by the removal of the documents; rather, the Ministry re-posted the documents at his request.

In deciding whether to grant the Director’s application, the Board applied the test it had used in previous cases; namely, whether, on a generous reading, it was plain and obvious that the ground for appeal was beyond the Board’s jurisdiction. The Board applied that test to each ground for appeal that the Director asked to be read down or struck. The Board noted that the appeal of the Amendment did not invite a wholesale review of the original decision to issue the permit, or the terms and conditions of that permit. The grounds for appealing the Amendment must relate to, and be limited to, the Amendment.

Regarding the request to read down ground 1, the Board found that this ground should be amended to specify that it only related to “increases” in VOCs arising from the Amendment. The Board also found that the remedy requested in relation to ground 1 should be read down such that it only applied to increases in VOCs resulting from the Amendment.

Regarding the request to strike ground 3, the Board found that, on a generous reading, this ground was plainly and obviously beyond the Board’s jurisdiction. This ground focused on the original permit and a concern that the Ministry did not enforce the terms of that permit. Those matters were beyond the Board’s jurisdiction in the appeal of the Amendment, and it was also beyond the Board’s jurisdiction to determine whether the Ministry should conduct an investigation or pursue enforcement actions.

Regarding the request to strike ground 7, the Board found that nothing in this ground for appeal related to the Amendment. The main focus of the ground was on the documents posted on the Ministry’s website, and the length of time they ought to remain there. While that may be a matter of general public interest, it was not a matter that fell within the scope of the appeal. The Board concluded that, even on a generous reading, this ground for appeal was plainly and obviously beyond the Board’s jurisdiction.

Consequently, the Board granted the Director’s application to read down one ground for appeal, and strike two grounds for appeal.