The BC Environmental Appeal Board recently decided that the District Director (pursuant to the Environmental Management Act) had gone too far when, on his own initiative, he amended an air permit held by West Coast Reduction Ltd. (“West Coast”) by placing limits on the concentration of odour as measured in “odour units” and requiring monthly odour testing and reporting to determine if those limits were being met.
West Coast’s plant now lies in a suburban Vancouver area and between 1964 and 2006, the facility had updated its odour control technology reducing the odour from an area of 12 square km to about 3 square km. In about 2004, there was an “explosion” of complaints which coincided with a “Stop the Stink” campaign by local residents.
Shortly after the increase in complaints, the District Director amended West Coast’s air permit. The changes included that the plant measure in “odour units” and required monthly odour testing and reporting.
The odour units, testing and reporting was a new initiative pursuant to a local bylaw, which although had been tried in European jurisdictions, had never been tried in Canada.
The Environmental Appeal Board found that:
- The power to amend existing permits is not an unrestricted power. It is limited to when it is necessary for the protection of the environment. In this case, a reasonable person in the District Director’s position would not have felt it necessary to make the amendments.
- Although the District Director had authority to introduce a unit of measurement established by international or foreign jurisdictions, as well as requiring testing analysis according to the standards, the use of an “odour unit” was not reasonable because there are significant weaknesses to this as a unit of measurement. An “odour unit” is based on “smell” and has a highly objective element to it.
- The requested closure of the plant during weekends and holidays was not feasible. The District Director is required to balance any amendment with the role of such a plant in BC’s sustainable regime.