Decision Date: September 13, 1993

Panel: Linda Michaluk, V. Huntington, Dr. M. Ryan

Keywords: Waste Management Act – s. 8; permit amendment; smelter; effluent; aquatic environment; 1979 Pollution Control Objectives; monitoring; compliance

The Kitimaat Village Council of the Kitimaat Indian Band (the “Appellant”) appealed a decision of the Deputy Director, Waste Management (the “Deputy Director”), Ministry of Environment, to amend a permit held by Alcan Smelters and Chemicals Ltd. (“Alcan”). The permit was originally issued in 1974, and authorizes the discharge of effluent, emissions, and waste from Alcan’s aluminum smelter in Kitimat, BC. The smelter began operations in 1954. The permit amendment addressed the effluent discharged from the smelter to settling lagoons, and ultimately to the inner harbour at Kitimat Arm and to Moore Creek. Kitimat Arm and Moore Creek provide habitat for fish including salmon. The main concern was in regard to the discharge to Kitimat Arm, which was via a surface outfall rather than a deep water outfall with a diffuser. The smelter used dry scrubbers to remove certain contaminants from air emissions. When the dry scrubbers were under maintenance or repair, the smelter used wet scrubbers as a backup system. One of the main sources of contaminants in the effluent was from the wet scrubbers.

Discussions about a permit amendment had occurred between Alcan and the Ministry for several years. In 1992, the Deputy Director decided to issue the amended permit following a hearing that was conducted at the Alcan smelter. The Appellant appeared as a witness at that hearing.

The permit authorized a maximum fluoride level of 20 mg/L in the effluent during normal operations, and 50 mg/L when wet scrubbers were in use, until December 30, 1996, and 10 mg/L by December 31, 1996. The Objectives set a standard of 2.5 to 10 mg/L for fluoride within the initial dilution zone of the receiving water body. Also, the permit authorized a maximum aluminum level of 5 mg/L until December 30, 1994, 4 mg/L by December 31, 1994, and 3 mg/L by December 31, 1996. The Objectives set a standard of 0.5 to 1 mg/L for aluminium within the initial dilution zone of the receiving water body. The permit authorized a higher maximum pH than the Objectives. The permit also authorized slightly higher levels of cyanide than were set out in the Objectives.

The Appellant appealed the amended permit on the grounds that it did not sufficiently protect or promote rehabilitation of the environment, and that the hearing conducted by the Deputy Director was procedurally unfair. In particular, concerns were raised about the permitted effluent levels of fluoride, aluminium, pH, and toxicity to fish, and effluent monitoring requirements. The Appellant requested that the permit be further amended to meet the minimum standards of the Ministry’s 1979 Pollution Control Objectives for Mining, Smelting and Related Industries (the “Objectives”).

At the appeal hearing, Alcan acknowledged that, historically, it had not complied with the effluent levels in its permit. In addition, the Ministry acknowledged that, historically, it had not focused on compliance and enforcement. All parties agreed that it was important that existing waste discharges be brought into line with the Objectives in a timely manner. At the conclusion of the appeal hearing, the Deputy Director, the Appellant, and the Regional Manager requested that the Board order certain amendments to the permit.

In deciding the appeal, the Board considered: the fairness of the hearing conducted by the Deputy Director; whether the method of effluent discharge resulted in non-compliance with the Objectives due to the nature of the initial dilution zone; whether the smelter could achieve the standards in the Objectives; Alcan’s record of compliance with the permit; and, whether the permit should be amended to include more stringent effluent standards and monitoring requirements.

The Board found that there was no violation of the rules of natural justice during the hearing conducted by the Deputy Director, given that the Appellant had participated in that hearing as a witness rather than as a party. However, the Board noted that a neutral location is preferred for such hearings.

Regarding the initial dilution zone, the Board found that the inner harbour was, for practical purposes, the initial dilution zone for the effluent, although this did not meet the definition of “initial dilution zone” in the Objectives, which contemplated an outfall within the receiving water body. The Board noted that deep water outfalls with diffusers had been the industry standard at other operations for some time, and Alcan had retained a consultant to provide a cost estimate for a deep water diffuser outfall, but had not completed a feasibility study or environmental impact study. The Board encouraged Alcan to continue to investigate that option.

The Board found that two factors affected the smelter’s ability to meet the Objectives: the smelter’s use of wet scrubbers; and, site contributions from surface runoff, roof emissions, and building erosion. Although the wet scrubbers were only used occasionally as a back-up system, their use resulted in spikes in pH, aluminium, and fluoride levels in the effluent that exceeded the Objectives. Alcan advised that it was working on a dry scrubber interconnect program which would eliminate the need for wet scrubbers, but it would not be complete until 1996. However, the Board found that the 1996 completion date was due, in part, to decisions made by Alcan in the late 1980’s not to actively pursue the interconnect program. In addition, the evidence showed that Alcan could take some basic steps to improve the effluent quality and assist in meeting the Objectives, such as introducing a holding pond for wet scrubber discharge, staging the dry scrubber maintenance, and adding chemicals such as lime to the effluent. During the appeal hearing, Alcan advised that it was implementing the use of a holding pond and adding lime to the effluent. The Board questioned why it had taken Alcan so long to consider those basic modifications.

Regarding permit compliance, the Board found that Alcan had not met the contaminant levels in the permit for many years. There was undisputed evidence that the fluoride levels in the smelter’s effluent had exceeded the permit maximum since the permit was issued in the mid-1970’s until 1990. Alcan advised that it was currently in compliance with the permitted effluent levels, and the Ministry advised that it had an increased emphasis on compliance and enforcement. However, the Board found that Alcan was still noncompliant with a requirement in the amended permit to jointly, with the Ministry, develop a monitoring program for the receiving environment.

Finally, the Board ordered a number of amendments to the permit regarding: the authorized levels of fluoride, aluminium, and pH; requirements to test for toxicity to fish; adding a requirement for Alcan to complete the dry scrubber interconnect program; adding revised terms for jointly developing a receiving environment monitoring program; and, adding a requirement for an environmental audit. Specifically, the Board ordered that, except when the wet scrubbers were in use, the maximum permitted fluoride level was reduced to 15 mg/L until December 31, 1994, and 10 mg/L by January 1, 1995. Similarly, except when the wet scrubbers were in use, the maximum permitted aluminium level was reduced to 5 mg/L until December 31, 1994, and 3 mg/L by January 1, 1995, and the Ministry would review that level at the end of 1996. Also, the permitted pH range was revised to 6.0 to 8.5, except when the wet scrubbers were in use. Regarding use of the wet scrubbers, the Board ordered that Alcan must notify the Ministry one week in advance of the event, Alcan must provide the Ministry with an effluent monitoring record, and a toxicity test for salmonids must be done if the fluoride level exceeds 20 mg/L and/or the pH drops below 4. The Board also ordered that Alcan had to complete the dry scrubber interconnect program by December 31, 1996, Alcan and the Ministry had to develop a receiving environment monitoring study by October 15, 1993, and Alcan had to complete a detailed environmental audit/review in accordance with terms to be developed with the Ministry.

In summary, the Board varied the decision to issue the permit amendment, and ordered further amendments to the permit. The appeal was allowed.