Decision Date: June 25, 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 for processing to produce compost. 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. 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 in June 2019. The hearing reconvened for additional days in October and November 2019, and March 2020, but further days were required. The hearing was set to reconvene in July 2020.

Meanwhile, in November 2019, GFL made an interim application under section 15 of the Administrative Tribunals Act (“ATA”) 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 (the “New Facility”). 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. The Board granted GFL’s application for the interim order (Decision No. 2018-EMA-021(d), January 15, 2020) (the “First Interim Decision”).

On April 1, 2020, GFL filed a second application for interim relief. Due to the COVID-19 pandemic’s impact on GFL’s construction and commissioning of the New Facility, GFL requested a sixty-day extension of certain deadlines (April 30 or May 1, 2020) that were varied in the First Interim Decision. The Board expressed concern that GFL had provided little evidence to support this application. However, the Board also considered the unique circumstances of the pandemic, and that the relief sought was purely a variation of the previous interim relief. The Board granted GFL’s application for interim relief, subject to conditions. By June 1, 2020, GFL was required to submit a further application for interim relief that addressed and provided the best available evidence regarding the state of construction at the New Facility, the timeline for commencing operations, the reasons for delays, the steps taken to address delays, and the consequences if the relief was denied (Decision No. 2018-EMA-021(e), April 23, 2020) (the “Second Interim Decision”).

On June 1, 2020, GFL filed its third application for interim relief, as required by the Board’s Second Interim Decision. GFL sought to further extend certain deadlines set in the Permit, the majority of which were previously varied in the First and Second Interim Decisions.
In deciding the third application, the Board considered whether there was an arguable case for which the Board was empowered to give a remedy and, if so, whether the balance of harm favoured granting the interim relief.

Regarding the first part of the test, the Board considered whether the relief sought was truly “interim” in nature, and concluded that it was. The Board considered the state of emergency in the Province since March 18, 2020, Ministerial Order M084 referencing GFL’s current operations as an “essential service”, and GFL’s uncontroverted evidence regarding the obstacles to constructing and commissioning the New Facility in the timeline permitted. The Board was satisfied that GFL had taken reasonable steps to mitigate the impact of these obstacles. The requested relief would allow GFL to continue providing the essential services of receiving and processing organic waste, pending commissioning of the New Facility. If the relief was denied, GFL’s operations would have to cease on June 30, 2020, and the New Facility would not be operational.

Turning to the second part of the test, the Board found that the balance of harm favoured granting the relief. It would not be in the public interest to deny the application and allow the Facility to close before the New Facility commences operations. Both the Resident Appellants and GFL would suffer and nothing would be gained. There was a lack of other facilities capable of processing the amount of organics that GFL would receive in July and August 2020. GFL would suffer financial and reputational loss if it was unable to meet its contractual obligations in July and August 2020. If the Facility ceased operation, organic material on site would need to be removed, which would interrupt the composting process and disturb material, and could exacerbate the odours complained of by the Resident Appellants.

In conclusion, the Board find that GFL had established an arguable case for which the Board was empowered to give a remedy, and that the balance of harm favoured granting the relief. GFL’s application was granted.