Greater Vancouver Regional District Proposes New Odour Management Bylaw Proposed regulatory measures open for feedback until October 31, 2012
Sarah D. Hansen, Vancouver, Miller Thomson
LLP
Amanda Baron, Articling Student, Vancouver
The introduction of regulatory measures to address the impact of
odour emissions from facilities that process organic materials is
being considered by the Greater Vancouver Regional District (the
"GVRD"). The GVRD has the authority to address issues surrounding
air quality and air pollution control in the region, and is doing
so by way of the GVRD Air Quality Management Bylaw No. 1082. The
GVRD is proposing the introduction of fees for high risk facilities
based upon the potential for the facilities to cause odorous
impacts on the surrounding communities and has circulated a
discussion paper and proposed bylaw.
According to the GVRD, the regulatory model will:
- Authorize emissions from low risk activities outright
- Enable moderate risk activities to proceed providing that
appropriate proactive safeguards are in place
- Require high risk facilities to undertake sufficient measures
to avoid impacts
- Enable cost recovery for regulatory oversight of moderate and
high risk activities.
The regulatory fees are intended to be related to the impact
caused by emissions and apportioned equitably between emitting
facilities.
The proposed bylaw will apply primarily to facilities that
process organic materials. This will include farms and farm
processes, facilities that compost organic waste, rendering plants,
animal feed plants, mushroom media composting facilities, intensive
agricultural feedlot activities, and anaerobic digesters processing
non-agricultural waste. Facilities will be classified into low risk
sources, medium risk sources, and high risk sources based on the
amount of odour released into the community, the sensitivity of the
receptors, and the offensiveness of the odours. This classification
will determine the action the facility will be required to take, as
well as the fees the facility will be required to pay. Those
facilities classified as high risk will face charges of $5 per year
for each person exposed to a specified level of odour. This level
of odour will be determined by odour units, to be measured by an
odour panel who will assess the odour in accordance with
internationally accepted methodologies.
The GVRD has attempted to regulate odour in the past by
introducing amendments to air permits. In West Coast Reduction
Ltd. v. British Columbia (Ministry of Environment), a 2010
decision out of the British Columbia Environmental Appeal Board
(the "Board"), West Coast Reduction Ltd. ("West Coast") sought to
set aside the decision of the Air Quality District Director (the
"Director") to amend their existing air permit to add various
requirements, conditions, criteria, standards, guidelines and
objectives all relating to the eventual reduction in the amount of
odour emitted from their rendering plant. The first amendment, in
2007, required costly odour monitoring and testing to be carried
out by West Coast and imposed a limit on odour concentration, to be
determined by the measurement of odour units. A second amendment
was made to the permit in 2008 in order to further reduce the odour
limits which were imposed in 2007, and required more intensive
monitoring and odour management measures. The amendments were made
to the permit in response to increased complaints from the public
regarding the odour from the facility.
In that case, the Board found that the amendments were
wrongfully imposed by the Director, as he did not have the
authority or jurisdiction to impose the requirements at issue. The
exercise of discretion to amend an existing permit requires that
use of the power is limited to situations where it is necessary for
the protection of the environment. The Board found that the
complaints process utilized by the GVRD provides significant room
for error, and did not provide sufficient information to determine
whether or not the amendments were necessary for the protection of
the environment. Additionally, the Board found that the District
Director did not have any confidence that the amendments would in
fact protect the environment by improving air quality. It was found
to be more likely that the amendments were an attempt to placate
the public rather than to provide a real solution to the odour
issue. As a result, the Board found that the Director's amendment
of the permit was an improper exercise of discretion.
In relation to the use of odour units, the Board found that the
Director does have authority to introduce a new unit of measurement
into a permit amendment in certain situations. However, the Board
found that the use of odour units was not reasonable or appropriate
in the context based on the inherent weaknesses of the measure.
The procedure utilized to sample odour is quite complex. Air is
drawn from emission sources and held in ten litre Tedlar™ bags to
provide samples. Collected samples are then shipped to an odour
laboratory to be tested. Odour testing is then carried out in an
odour free room, where samples are presented to and analyzed by
eight qualified and screened human assessors known as the odour
panel. The odour panel is presented with three air samples, one of
which contains the odorous air and two of which are blank samples.
The panellists must choose which sample is the different sample.
This step is repeated with increasing concentrations of odorous air
until each panellist correctly detects the odour in two consecutive
presentations. Odour units are then determined using a number of
calculations to ascertain the geometric mean for each individual as
well as for the panel as a whole. The cost associated with the
sampling method utilized by West Coast under the permit
requirements was found by the Board to be approximately $15,000 per
month.
The Board accepted expert evidence on the issue which identified
that a significant amount of variability is typically present in
the results of odour unit measurement, and held in paragraph 331
that: "[t]he notion that odour units can be used as an indicator of
an environmental "smell" is simply too flawed to be used as a
method of determining compliance, and is therefore not suitable for
determining whether the environment is adequately protected." The
Board further identified at paragraph 345 that:
Given that there are many steps in the process of attempting to
calculate odour units which are problematic, and which contain so
many points of bias and subjectivity, the Panel finds that the
ultimate number or value coming out of an odour unit measurement
cannot be relied upon as meaningful, particularly for the purposes
of evaluating compliance with a mandatory term of a permit.
The Board also found that the odour monitoring and testing
required by the amended permits was not an efficient use of
financial resources. The cost of carrying out the odour monitoring
as required by the permit diverted funds that would be better used
within the facility to develop more effective techniques to limit
odour emissions.
Similarly, the new bylaw may attract some criticism in that the
fees imposed will be determined by the use of odour units, the same
method of monitoring and testing which the Board in West Coast
Reduction Ltd. v. British Columbia (Ministry of Environment)
found to be too imprecise to be used for compliance purposes.
Additionally, the fees imposed under the bylaw may lessen the
financial resources available to be utilized to develop odour
reducing solutions within the facilities at issue.
The proposed bylaw will be open for feedback until October 31,
2012.
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