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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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