Decision Date: January 15, 2020

Panel: Brenda Edwards, Linda Michaluk, Reid White

Keywords: Environmental Management Act – s. 14; Administrative Tribunals Act – ss. 15; permit; odour; air emissions; application for interim order

GFL Environmental Inc. (“GFL”) operates a composting and sod farming facility in Delta, BC. The facility receives organic waste from Vancouver and other municipalities in the region for processing to produce compost, most of which is utilized for turf/sod farming at the facility. The facility holds a licence issued by the Greater Vancouver Sewerage and Drainage District to accept the following for composting: food waste, yard waste, soiled paper, packaged organic waste, as well as certain industrial organic wastes, certain agricultural organic wastes, and bulk liquids.

In August 2018, the District Director for the Greater Vancouver Regional District issued an air quality management permit to GFL under the Environmental Management Act and Greater Vancouver Regional District Bylaw No. 1028, 2008. The permit authorizes GFL to discharge air contaminants from the Delta facility, subject to numerous terms and conditions.

GFL appealed certain terms and conditions in the permit. It submitted that compliance with those terms of the permit would likely increase the odours from the facility, and those terms conflicted with other permit terms requiring best operating practices.

In addition, the Board received 17 appeals from local residents (the “Resident Appellants”). In general, they objected to the permit on the basis that odours from the facility are adversely affecting the them, odours have increased over time because GFL is not using best operating practices, and the permit was inadequate to address the odours.

A 15-day oral hearing of the appeals began on June 3, 2019, but did not finish within the time that was planned. The hearing reconvened for 29 more days in October and November 2019, but a further ten days were required. The District Director was not available to reconvene until March 2020. As a result, the hearing was set to reconvene on March 9, 2020.

GFL then made an interim application for adjustments to certain deadlines and requirements in the permit that would take effect on March 1, 2020. In particular, GFL sought an interim variation of permit terms: regarding the use of “odour units” as an emission limit and compliance mechanism effective March 1, 2020, and related reporting requirements; and, setting March 1, 2020 as the start-up date for GFL’s new composting facility and the end of its existing facility’s operations. For some permit terms, GFL sought extensions to later dates in 2020, and for other terms it sought an extension until after the Board issued its decision on the merits of the appeals.

Shortly after GFL applied for an interim order, the Resident Appellants also applied for an interim order. They sought to vary and add terms in the permit pending the Board’s decision on the merits of the appeals. They also sought an order requiring that a separate permit be issued to GFL for the substantially new facility it was constructing on the same site as the existing composting facility. The Resident Appellants were concerned that they would have to live with odours from the existing facility for months until the appeals were decided. They wanted the permit varied to make the odour limits more restrictive, or for the permit to end on March 1, 2020, so that GFL would cease operating the existing facility and focus on building its new facility. They also submitted that the permit could be varied by prohibiting GFL from receiving and composting any food waste until the new facility is fully operational.

In a separate decision issued the same day as its decision on the Resident Appellants’ application, the Board granted GFL’s application for an interim order (Decision No. 2018-EMA-021(d)).

The Board denied the Resident Appellants’ request to vary and add terms to the permit pending the Board’s decision on the merits of the appeals. The Board found that it would be inappropriate at this stage to make fundamental changes to the permit that went to the heart of the appeals and that would, in effect, conclude the appeals before all of the evidence was heard. This aspect of the Resident Appellants’ request was more in nature of a request for final remedies than a request for interim relief. Similarly, the Board found that the request to order the District Director to issue a separate permit for the new facility was the kind of order should not be made part way through the appeal hearing, before all of the evidence was heard. This request was in the nature of a final order, not an interim order.

In conclusion, the Board denied the Resident Appellants’ application.