ENVIRONMENTAL APPEAL BOARDProvince of British Columbia

APPEAL NO. 88/18 WASTE

JUDGEMENT:

In the appeals under the Waste Management Act and theEnvironment Management Act, against the decision of theDirector of Waste Management, dated December 5th, 1988, whichapproved the relocation of the mobile asphalt plant ofCapital City Paving Ltd. to a site at 2015 Millstream Road,R. R. #6, Victoria, B. C.

Capital City Paving Ltd. holds Permit No. P.A. 6081,which allows it to discharge contaminants to the air from itsmobile asphalt plant.

The Director of Waste Management gave his approval torelocate the plant, subject to the following conditions:

a) "Non-remote" criteria shall apply for both fugitivedust and particulate emissions from the scrubberstack which are as follows:Fugitive Dust: 1.7 - 2.3 mg/dm2.d total dustfall,

150 - 200 ug/m3 total suspendedparticulate matter (24-hour),60 - 70 ug/m3 total suspendedparticulate matter (l-yr. geometricmean) ;

Stack particulate emissions: 230 mg/m3.b) The existing wet scrubber shall be used at this

site to treat emissions from the drum-mixer;

c) The hot-mix elevator and asphalt mix storage con-tainer shall be equipped with works to collect andtreat hydrocarbon emissions to the satisfaction ofthe Regional Waste Manager;

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3rd Floor, 712 Yates Street,Victoria, RC. V8V 1X5Ph: 387-3464/356-7032

Mailing Address:Parliament Buildings,Victoria, B.C. V8V 1X5

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d) The discharge authorized by Appendix 01 shall besampled for particulate matter and hydrocarbonswithin thirty days of start-up at this location;

e) A berm surrounding the plant site shall beconstructed to the satisfaction of the RegionalWaste Manager in order to prevent the egress of anyspills that may occur.

All terms of Permit PA-6081 remain in force andfull effect.

APPELLANTS:

1. Langford Poultry Farm Limited2010 Millstream RoadR. R. #6, Victoria, B. C.

2. Highland District Community Association635 Lost Lake RoadR. R. #6, Victoria, B. C.

3. Nancy McMinn and Michael BockingMillstream Lake Road,R. R. #6, Victoria, B. C.

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DECISION:

The Environmental Appeal Board has carefully examinedand weighed all of the evidence submitted to it at the hearing(which lasted four days), and decided that the Approval willstand, but with two new conditions added. The appeals,therefore, are all dismissed.

The conditions to be added are as follows:

1) Some provision must be made, either to the plant or theoperations procedures of the plant, so that the principaloperator of the plant will know when he has a seriousupset condition existing, or in the process of develop-ing. From the evidence presented by Mr. Howell, hestated that the Foreman was probably not aware of thepollution level (i.e., blue haze) he was creating onMarch 20th, 1989.

2) When upset conditions occur, or are in the process ofdeveloping, the principal operator must have theauthority to shut the plant down and/or take correctiveaction. (Mr. Howell has agreed to this action in hisevidence under cross-examination - Item 26).

The Board was persuaded by the evidence presented thatthe asphalt plant as presently constituted can operate undernormal conditions without causing an unreasonable adverseeffect to the environment in the Millstream Creek Valley.Should this not be the case, the Waste Management Branchshould, when it has reasonable cause, require the Company toinstall additional equipment in a logical manner (i.e., onemodification at a time) until satisfactory conditions can bemaintained. Further, the Board does believe that the poultryfarm has priority. This is why the foregoing action isrecommended. In the final analysis, if the plant, even withprogressive modifications, cannot meet reasonable pollutioncontrol standards, as judged by the Regional Manager of WasteManagement, the Approval should then be revoked.

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COMMENTS OF THE BOARD

1) The Waste Management Branch

The Director of the Waste Management Branch (and hisstaff) "followed the rules" of the Waste Management Actand its Regulations, which specifies and controls theirconduct, namely -

a) They received the application for the Approvaland they reviewed all the informtion about theplant and its past performance;

b) They did their own "in-house" study to identifyany potential environmental problems which couldarise from an approval to relocate the plant to2015 Millstream Road, as follows:

They considered the rate of dispersion ofpollutants from the site area. They ran adispersion model. They had their ownMeteorological Section do a review of themeteorological conditions in the area.They considered Dr. Danard's report andagreed with him that the area was subjectto inversions. They considered anythingwhich could impair the usefulness of theair. The dispersion characteristics of thearea were part of the equation in theirevaluations (Bollans - Items 6 & 7 in thecross-examination).

They reviewed and evaluated all of theinformation Mrs. Nicoll presented to themregarding the impact of hydrocarbons onchickens, including Dr. Fitzsimmons'sreport (Oldham - Item 9 - Evidence in Chief;Bollans - Items 25 and 30 in the cross-examination).

They also solicited agricultural informa-tion from a literature computer search (theeffects of asphalt plant emissions onchickens) from the Ministry of Agricultureand from the B.C. Federation of Agriculture(Bollans - Item 30 in the cross-examination) .

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They considered the toxic effects of the hydro-carbon emissions (Bollans - Item 11 in thecross-examination). They found that hydro-carbon emission levels would be very low and,therefore, the risk to human health would alsobe low. (See Bollans - Items 46 (d) and (g) inthe cross-examination; Fitzsimmons - Item 9 inthe cross-examination; and Perks - Item 15 inBollans' cross-examination).

They also considered other important data(Bollans - Item 46 in the cross-examination).

c) In order to ensure the minimum emissions from theplant, because of the chicken farm and the sensi-tivity of the site meteorological conditions(Bollans - Item 42 in the cross-examination), theyset the following additional requirements:

A Level "A", non-remote permit, which is thehighest standard in the province.Hydrocarbon testing. This is the first time ithas been required in the province with the excep-tion of the Greater Vancouver Regional District.

The closing-in of the conveyor, elevator, andsilo for the asphalt mix, with the emissionsfrom the equipment to be burned. Thisrequirement should substantially reducehydrocarbon emissions.

In short, the personnel of the Waste Management Branch,(who are truly "creatures of the statute") did what they wereobliged to do under the Act and its Regulations. They couldnot cast around for ~ better site, nor could they makedecisions on zoning. They could not force the Company toinstall some other kind of plant or scrubber. Nor could theymake policy decisions. They did what appears to be theirutmost in order to properly assess the matter and take thenecessary actions to protect the environment. Having heardall of the evidence at this hearing, the two representativesof the Waste Management Branch said that they have heardnothing which would give them cause to change their decisionregarding the approval.

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2. Jurisdiction of the Board and Examination of Evidence

The Environmental Appeal Board is bound by the same Actand Regulations as the Waste Management Branch. Its juris-diction is exactly the same. It is, therefore, restrictedin regards to the following:

a) The Board cannot interfere in zoning decisions of themunicipal government or the Capital Regional District.

b) The Board must make its decision on the plant which isin existence. It cannot do studies on its own tofind some other type of plant or scrubber which may bemore efficient on pollution control.

c) The Board must make its decision only on the evidencepresented at the hearing, and the onus is on theappellants to prove to the Board that the WasteManagement Branch has made an error in issuing theApproval for this plant, either in judgement or in law.They have done neither.

d) From the evidence, the Board must find whether thisplant has the capability to meet the Approval and permitconditions on air pollution, the provincial objectivesand the federal standards. From the evidence and fromthe way that the plant is currently constituted, thereappears to be little doubt that it can meet thesecriteria.

e) From the evidence, the Board must examine the receivingenvironment to see if it can assimilate this level ofpollution without causing an unreasonable adverseeffect. The Board heard the evidence of Dr. Danardand agrees that the area is subject to inversions andlow dispersion characteristics. This is the receivingenvironment which must be considered. In coming to itsdecision, the Board noted a number of things, which wereas follows:

The Waste Management Branch had done a very completestudy on the receiving environment, much more thanusual, before coming to the conclusion that it couldassimilate the levels of pollution likely to begenerated.

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Dr. Danard, while willing to make a general statementthat the area was a poor place to locate any plantwhich emits air pollution (Item 9 of the evidence inchief), was reluctant to voice a specific opinion thatthe asphalt plant in question would create an unreason-able adverse effect (Item 13 in the cross-examination).

Dr. Fitzsimmons said that he had no hard evidence thatthe effects of asphalt plants and their emissions wouldcause adverse effects on laying hens' health orproductivity. He gave a great deal of evidence,however, as an expert in his field, that he was surethat the possibility existed. The Board agrees withhim, but is convinced that the adverse effect isdirectly related to the concentration or level of theexposure, be it sound, odour, or hydrocarbons. TheBoard is also convinced from the evidence that theexposure to sound, odour and hydrocarbons will be belowa level which will adversely affect the chickens (SeeDr. Fitzsimmons' evidence in chief, Items 4,5,6,14, andcross-examination, Items 1,2,9,15,16,17).

Mrs. Rose Nicoll said that on March 20th, 1989, whenthe plant was experiencing a serious upset condition,she could detect the odour both inside her house andinside the chicken barns (Item 11, evidence in chief).She further told the Board that she counted the eggproduction every day (Item 12, evidence in chief), butshe never mentioned whether there had been a loss ofegg production on March 20th, 1989. This seemed oddto the Board, for here was a bad upset condition whichwas polluting her farm, but presumbly had relatively noeffect on chicken production that day or the followingdays (16) while the hearing was in session.

The Board made a visit to the site of the asphalt planton April 4th, 1989. The plant was operating at 66tonnes per hour. The Board noted that there wasrelatively no smell of asphalt on the plant site, and,also, when the members of the Board climbed a smallhill about 100 meters from the plant and stood directlyin the plume of the smoke coming from the plant stack,the smell of asphalt was very low and only mildly

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objectionable (the hill was perhaps 50 to 60 feetabove the top of the smoke stack). The plant has acapacity of 130 tonnes/hour, so presumably the Boardwas experiencing about one-half of the odour undermaximum operating conditions. Even at double thestrength, the odour would still be quite mild.

Evidence of the Appellants:

The appellants outlined their grounds for concern withall the understandable emotional and philosophical anguishwhich is associated with the issue of putting anotherindustrial plant into an area which they were hoping to makeinto a greenbelt. The Board understands, but it can donothing in this regard. The Board did note the following,however:-

a) The plant site is zoned to permit an asphaltplant.

b) There was a public hearing on the matter ofdowngrading the zoning for the site, withcomraunity input.

c) The Capital Regional District, after thepublic hearing, declined to rezone the property.

d) The Capital Regional District issued a devel-opment permit to allow the plant to move ontothe site.

The people who appealed failed to produce substantiveevidence to support those grounds for their appeal, whichdealt with environmental issues.

The technical evidence of the appellants did not damagethe respondent's case. In fact, the two expert witnesses ofLangford Poultry Farms Ltd. produced no hard evidence that theconcentrations of pollutants produced by the plant would harmthe chickens. Their evidence was based on conjecture andspeculation.

.A. Hillier, P. Eng.ChairmanEnvironmental Appeal Board

Victoria, B. C.June 14th, 1989