Decision Date: December 23, 1997

Panel: David Perry, Harry Higgins and Elizabeth Keay, M.D.

Keywords: Waste Management Act – s. 11 (now 13); fine particulates; pollution; health problems; control technology; scheme of Act; discretion of Regional Waste Manager to respond to changing circumstances; funding cost of monitoring program; continuous and discontinuous monitors; PM10 and PM2.5; source and ambient air and formaldehyde monitoring; meteorological monitoring

Louisiana Pacific Canada Ltd. and the Peace Country Environmental Protection Association (PCEPA) appealed a decision of the Deputy Director allowing an appeal against an amended permit. The amended permit, issued by the Regional Waste Manager, imposed lower emissions standards following the installation of more stringent environmental controls at Louisiana Pacific’s oriented strand board plant near Dawson Creek, B.C. On review, the Deputy Director held that the plant produced harmful levels of pollutants, that there were demonstrable health problems arising from the plant, that the presence of odours constituted a nuisance to some persons and that only the best available control technology should be used to monitor fine particulate emissions. The Deputy Director imposed ambient monitoring and odour detection programs and an evaluation of the costs and benefits of a base-line health study.

Louisiana Pacific appealed the review decision on the basis that the findings of fact were unreasonable and that the use of a Ministry air quality objective policy in making changes to their original permit amounted to a fettering of the Regional Waste Manager’s discretion. PCEPA appealed on the basis that, given the findings of fact made in the decision, much more stringent monitoring requirements were required. The Ministry of Environment, Lands and Parks (MELP), on behalf of the Respondent, developed a modified monitoring program which it asked the Board to uphold.

The Panel found that there was insufficient evidence to determine that there was a harmful level of pollutants from the plant. The Panel also found there was insufficient medical evidence to demonstrate a link between health problems among some members of the community and emissions from the plant. The Panel further found that the odours detected were not a nuisance because the reported effect was temporary or transitory and not an ongoing, continuous phenomenon effecting the enjoyment of property. The Panel upheld the Deputy Director’s finding that the current emissions control on the plant are the most suitable given the level of emissions expected from the plant. On the issue of fettered discretion, the Panel found that the Regional Waste Manager, and subsequently the Deputy Director, had not fettered their discretion when setting permit levels or monitoring requirements. The Panel set aside the directions in the Deputy Director’s decision but held that more effective monitoring was justified to protect the environment, adopting the monitoring program submitted by the MELP. The Panel allowed the appeal in part and substituted its own decision accordingly.