Decision Date: March 27, 2019

Panel: Gregory J. Tucker, QC, R.G. (Bob) Holtby, Kent Jingfors

Keywords: Environmental Management Act – s. 16; permit amendment; air emissions; admissibility; no evidence motion

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 wood pellet manufacturing plant (the “Plant”) located in Lavington, 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 appealed by three individuals including Mr. Coape-Arnold. Before the appeal was heard, the appeal was resolved by mediation. Thereafter, the Plant operated under the permit, and its emissions were monitored.

On March 9, 2016, there was a fire at the Plant. Pinnacle determined that the fire was caused by material in recirculated air passing through the Plant’s belt dryers. Air passed through the dryers twice before being discharged to the atmosphere. Pinnacle was also concerned about the corrosion of equipment, caused by recirculating air through the belt dryers. The belt dryers dry the raw materials that are manufactured into pellets, and are central to the pellet manufacturing process.

As a result, Pinnacle decided to eliminate the air recirculation system. Pinnacle applied to amend the permit to allow changes in the concentration and discharge rate of some emissions, due to the increased air flow from changing to a single pass of air through the belt dryers. Pinnacle proposed that the total maximum rate of discharge would double from 66 cubic metres per second (m3/second) to 132 m3/second. The permitted limit of 15 mg/m3 on total particulate matter (“TPM”) for each dryer would remain unchanged, but the maximum combined rate of TPM discharge from the Plant would increase from 10.314 kilograms per hour (kg/hr) to 15.480 kg/hr. Pinnacle hired a consultant to prepare an emission dispersion modelling report in support of its application.

A meteorologist with the Ministry reviewed Pinnacle’s application and air dispersion modelling report, and concluded that there was a risk that fine particulate matter (PM2.5 and and PM10) concentrations would increase under certain meteorological conditions given the increase in dryer emissions. He advised that the only way to confirm that such an increase did not occur would be by conducting stack testing at the Plant and ambient air quality monitoring in the airshed.

The Director granted the Amendment with the revised emissions levels sought by Pinnacle, subject to certain requirements. In particular, the Amendment required Pinnacle to participate in a joint ambient air quality and meteorological monitoring program that included PM2.5 or related studies, as directed by the Director.

Mr. Coape-Arnold appealed the Amendment. His appeal focused on the emissions from the belt dryers. In particular, he submitted that: a study of VOCs should have been required as a permit condition; the emission dispersion modelling provided by Pinnacle was inadequate; the Amendment should have specified discharge limits for PM2.5 and PM10; and, the TPM limit in the Amendment was too high.

At the outset of the appeal hearing, Pinnacle and the Director challenged the admissibility of many documents that Mr. Coape-Arnold sought to tender as evidence. As a result, the Board ruled that two emails, which Mr. Coape-Arnold sought to tender as expert reports, were inadmissible as expert reports. The Board also found that none of the articles or papers that Mr. Coape-Arnold sought to tender as evidence constituted expert evidence, or supported the conclusions that he sought to be drawn from them. Thus, they were inadmissible as evidence in support of his arguments. However, the Board held that the articles and papers were generally relevant to the subject matter of the appeal, and were admissible for the limited purpose of showing that some types of VOCs are a matter of concern and study. Similarly, the Board found that policies and standards from other jurisdictions were admissible to show that VOCs and particulate emissions are a concern to regulators in many jurisdictions.

After Mr. Coape-Arnold presented his case at the hearing, Pinnacle brought a no evidence motion and requested that the appeal be dismissed. The Director supported Pinnacle’s motion. Pinnacle submitted that the Mr. Coape-Arnold had provided no evidence or arguments which would require the Director and Pinnacle to make submissions or tender evidence. Specifically, Pinnacle argued that Mr. Coape-Arnold had failed to provide some evidence or arguments from which the Board could find that the conditions in the Amendment were insufficient, and that requiring a VOC study, additional dispersion modelling, or limits on PM2.5 and PM10 emissions should be added to the permit.

The Board granted the no evidence motion in regard to three grounds of appeal: alleged lack of proper consideration of increased VOC emissions; inadequate emissions dispersion modelling; and, adding discharge limits for PM2.5 and PM10 in the permit.

The Board denied the no evidence motion in regard to the fourth ground of appeal: whether the TPM limit in the Amendment was too high. Regarding the fourth ground, the Board considered the parties’ evidence, and found that in leaving the TPM limit at 15 mg/m3, the Director recognized that there was some uncertainty in how the change in air flow through the belt dryers would affect TPM emissions. The Board held that it would be inappropriate to set the TPM limit at a level which would risk exceedances during normal operations at the Plant, and there was no evidence that setting the TPM limit at 15 mg/m3 instead of 10 mg/m3 posed a risk of harm to human health or the environment.

Accordingly, the appeal was dismissed.