In the matter of an appeal under section 28 of the Waste Management Act, S.B.C. 1982, c. 41
| BETWEEN: | Taylor Environmentally Concerned Citizens (TECC); Peace Valley Environmental Association (PVEA); Northern Environmental Action Team (NEAT) | APPELLANTS | |
| AND: | Deputy Director of Waste Management | RESPONDENT | |
| AND: | Bennett Remediation Services | THIRD PARTY | |
| BEFORE: | A Panel of the Environmental Appeal Board | ||
| Ben van Drimmelen | Panel Chair | ||
| Elizabeth Keay | Member | ||
| Carol Martin | Member |
| DATE OF HEARING: | February 12 - 13, 1996 | |
| PLACE OF HEARING: | Fort St. John, BC (January 15 - 19, 1996) & Victoria, BC (February 12 - 13, 1996) |
| APPEARING: | For Appellant | |
| Spokesperson: | Karen Wristen, Counsel | |
| Witnesses: | Dr. Barnard | |
| Ms. Hadland (PVEA) | ||
| Mr. Hansen | ||
| Ms. Ponto (TECC) | ||
| Mr. Larstone (NEAT) | ||
| Ms. White | ||
| Dr. Bates | ||
| For Respondent | ||
| Spokesperson: | Dennis Doyle | |
| Witnesses: | Mr. Mitchell | |
| Mr. Sutherland | ||
| Mr. Vogt | ||
| For Third Party | ||
| Spokesperson: | Danny Ponn |
MAJORITY DECISION OF PANEL MEMBERS ELIZABETH KEAY AND CAROL MARTIN
The authority to hear this appeal is found in section 28 of the Waste Management Act and in section 11 of the Environment Management Act.
OVERVIEW
In the petroleum industry, soils are contaminated by petroleum by-products, including various oils. There are also oil sludges produced, plus various materials such as filters and rags that are oil-contaminated. All are designated as "special waste" under the Waste Management Act and require special precautions during transportation and storage. Bennett Remediation Services ("Bennett") wants to construct and operate an incinerator to treat these materials so that they can be "delisted" from the special waste category. If the materials can be delisted, no special precautions will be necessary; in the regulatory regime, the materials would be considered innocuous and suited to uses such as fill or landfill.
Bennett chose a site for their incinerator in the community of Taylor in north-eastern B.C. The company applied for three permits: one to receive and temporarily store waste before incineration, one to store un-delistable products of the incinerator safely and one to incinerate the material to be treated and discharge some wastes into the air. Permits were issued by the regional waste manager (the "Ministry") and three environmental groups (the "Residents") appealed. The Residents believe that the permits as issued are not adequate to protect the local environment. Further, they question the need for a treatment facility at all, pointing out that central collection of contaminants may be undesirable and that other treatment technologies exist. Bennett and the Ministry both take the position that the facility can operate subject to permitted conditions without damage to the environment. Both also consider that the desirability and need for an incinerator is irrelevant to the permitting process; the only issue is whether a proposed project can be operated without unacceptable environmental effects.
THE DECISION
It is the decision of the Panel that the three permits be issued but varied by the addition of conditions to two of the permits. More specifically, it is the decision of the Panel to add two conditions to the air discharge permit to include activated charcoal filtration in the process and to delay operation until a beehive burner in Taylor has been closed.
It is also the decision of the Panel that two conditions be added to the short term storage permit such that all test records be kept on site for two years and that conditions relating to prohibited materials be included.
Finally, it is the decision of the Panel that a third condition be added to the short-term storage permit for additional testing of feedstock materials. The Panel has decided to require that there be a laboratory on site capable of comprehensive testing and characterisation of feedstock prior to any incineration.
GROUNDS FOR APPEAL
The Residents believe that the Ministry has not conducted a proper analysis of the potential environmental effects of the incinerator that is to be constructed by Bennett or of alternative treatment options. Paraphrased, the Residents claimed that:
1. the permits fail to protect the environment generally;
2. the permits fail to protect the environment from the emission of stack gases, heavy metals, dioxins and furans, solid residues and contaminated steam;
3. the Ministry failed to do a proper technical review of the permit applications, particularly as regards cumulative effects of the operation;
4. the Ministry failed to assess the current air quality of the Taylor airshed, and to protect the environment based on cumulative impacts;
5. the Ministry failed to provide adequate information to the Ministry of Health to allow a proper assessment of potential health impacts of the operation, and failed to make such an assessment itself;
6. the Ministry failed to require that the nature of the contaminated materials coming into the facility be identified so that a meaningful environmental assessment could be conducted;
7. the Ministry failed to require an adequate assessment of slope stability at the proposed landfill site;
8. the Ministry failed to require that the secure landfill be completed before the facility was allowed to operate;
9. the Ministry approved a secure landfill with insufficient capacity for the facility's expected output;
10. the Ministry conducted inadequate public consultation because it did not respond to public and agency concerns in an informative manner;
11. the Ministry failed to consider alternative remediation options; and
12. the Ministry failed to balance the need for treating contaminated soils with the environmental risk posed by the facility.
The Residents sought an order either setting aside the decision of the Deputy Director and quashing the subject permits or, alternatively, varying the decision of the Deputy Director to impose additional conditions as set out in their appeal.
BACKGROUND
Taylor is a community of approximately 1,000 people between Fort St. John and Dawson Creek. The town is located in the Peace River valley and is almost surrounded by benchland. As a result, inversions are common in the winter. Inversions tend to trap air emissions from Taylor, creating poor visibility and health concerns. There are already several industries in Taylor, which refers to itself as "the Industrial Capital" of the local area. Westcoast Energy has a gas plant, sulphur plant and natural gas liquids plant plus a compressor and pump station co-generation plant. Canadian Forest Products has a sawmill and beehive burner. Fibreco has a pulp mill. The industrial developments are concentrated in the valley, but the surrounding land is used exclusively for agricultural purposes, primarily ranching.
Bennett's proposed incinerator site is located at the north-eastern edge of the valley. The nearest house, the Chapple's, is 500 metres to the west and there is a greenhouse operation a similar distance to the south. The site itself is owned by the Town of Taylor and shows obvious signs of past use as a fill area. There is a large buried sulphur pile and a car body dump. The current municipal landfill is alongside.
There are petroleum producers in the Peace Region, as well as in nearby Alberta. They produce various hydrocarbon wastes, including contaminated soils, oil sludges and other materials. These are the types of waste that are to be incinerated by the proposed project. But there is likely to be more than hydrocarbons in the wastes, so the hydrocarbon wastes must be characterised at source for not only hydrocarbon and moisture content, but also for sulphur and heavy metal content. Waste is to be transported to the plant either by truck directly from a waste source or via rail to Fort St. John (with subsequent transport of waste containers by truck). Samples will be taken and re-tested at the plant to confirm the characterisation done at the material's source.
The facility plans to incinerate up to 240 tonnes per day, 7 days per week, 24 hours per day for an estimated throughput of 10 tonnes per hour. Conceptually, the treatment process is relatively straightforward. Larger waste material such as rocks will simply be washed. If it then meets regulation standards, it can be "delisted". Delisting is a two-part process involving delisting for hydrocarbons only and delisting for other contaminants as specified in Schedule 4 of the Special Waste Regulations. If treated material meets the dual delisting requirements, it is no longer classified as a special waste, so it needs no more special care. It can be transported, and used, as ordinary fill. If, after treatment, material still contains too much contamination, it must continue to be treated as special waste and be either crushed and treated further or placed in a secure, long-term special waste landfill. One such landfill is planned for the site, but there are other possible sites for disposal of this type of waste in Alberta, Oregon and elsewhere.
Smaller materials will be crushed to a sand/gravel size. These materials will be blended with contaminated soils and sludges and then incinerated in a low-oxygen environment. This incineration process is expected to break down almost all hydrocarbons, converting them to water, carbon monoxide and carbon dioxide. However, the petroleum-contaminated materials will likely also contain various amounts of other contaminants such as heavy metals. Such contaminants cannot be broken down by incineration. They must be captured as dust or, if they turn to liquids or gases (mercury, for example), they must be condensed out of the air and captured. Those capture processes require additional structures to burn, cool and filter the gases and dusts coming out of the incinerator.
The dust and vapour-laden air coming out of the incinerator will first be separated in a cyclone to remove most of the contaminated dust as ash particles. These will again be tested for delisting. If they are contaminated, they must be sent to a secure land fill. Gases coming out of the cyclone will then be roasted at very high temperatures with abundant oxygen in an afterburner to convert carbon monoxide to carbon dioxide and to precipitate out additional contaminants. Again, the ash from the afterburner will be collected and tested for delisting. If contaminated, they will have to be stored in a secure land fill. The gases from the afterburner will next be water-cooled in a "quench tower" and treated with lime to precipitate out more contaminants. These new particulates are to be captured in bag filters. Again, the ash, unless delistable, must go to a secure land fill. Finally, the remaining presumably-decontaminated air is discharged through a stack into the air of Taylor.
The discharge stack will have monitoring equipment for continuous and periodic sampling. Hydrochloric acid, carbon monoxide, carbon dioxide, oxygen, clarity and sulphur dioxide will be measured continuously, because these parameters indicate if the process is operating as it should. Particulates, nitrogen oxides, total hydrocarbon (as methane) and trace metals will be measured every 3 months as decided by the waste manager. This frequency is the one required under Schedule 2 of the Special Waste Regulation .
PERMIT PROCESSING - HISTORY LEADING TO THE APPEAL
In the fall of 1992, Bennett proposed building the incinerator facility in Taylor. In the spring of 1993, Bennett applied to the Ministry for the necessary permits, with Taylor City Council's agreement in principle. Three permits were required. Permit PS-12392 is for the pre-treatment storage and short term (estimated at 14 days) post-treatment storage of waste. Permit PA-12390 is for discharge of waste to the air; it covers the thermal facility itself. Permit PR-12391 regulates the secure landfill site that is required for long-term storage of the non-delistable material.
On July 27, 1993, there was a further application for a biological remediation land farm (Permit PR-12397), but that application was subsequently abandoned by Bennett and is not part of this appeal.
On August 9, 1993, the applications were referred by the Ministry to various government agencies for comment. A copy was sent to the Peace River Health Unit, and their reply indicated no special concerns about the project. (The only comments concerned leachates into ground water and sources of exposure but no specific recommendations were given.)
Several amendments were made during the processing of the applications. In October 1993, the application for the temporary waste storage permit (PS-12392) was amended to specify enclosed instead of open storage. There was apparently some difficulty in fitting the secure landfill proposal into the hillside because Bennett asked, in May, 1994, for an amendment to allow up to 25 degrees of slope. Final grade of such a landfill must be 3-5% under the Special Waste Regulations; the amendment request was denied by the Ministry. In October 1994, Bennett asked for another amendment to reduce the volume of the secure landfill from 25,000 tonnes per year down to 5,000 tonnes (a projected ultimate volume of 20,000 tonnes, rather than 40,000 tonnes). This amendment was granted.
Opposition to the proposal began in October 1993, after public hearings were held. In November 1993, there was a non-binding referendum by the Town of Taylor on whether the town should make municipal land available for the project. 148 citizens said yes, 151 said no. There was an election, and the new Taylor Council authorised the sale of property to Bennett.
In the spring of 1994, there was an independent process (i.e. - not under the Waste Management Act) that could put projects such as the Bennett proposal through a full environmental impact assessment. This "major project review process" was a Cabinet policy under the Environment and Land Use Act which became, along with several other laws, a precursor to the Environmental Assessment Act which became law in 1994. The plant did not meet the definition of a major project under the Major Project Review Guidelines. Therefore, there was no provincial requirement for a comprehensive environmental impact assessment at the time the project was proposed by Bennett. (Under the new Environmental Assessment Act, there is no provision to retroactively impose an environmental assessment on a project that did not require assessment under the previous regime).
In June 1994, the site was zoned as industrial by Taylor council. In July, council passed another bylaw establishing a Remediation Facility Consultative Committee (RFCC) to act as local government liaison during the planning, construction and operation of the plant. This committee has no independent authority; it can only make recommendations.
In January 1995, the Ministry completed technical assessment reports for each permit. All reports recommended permit issuance, although many matters were to be approved in the future when more details were available. The regional waste manager decided that the project could proceed with conditions adequate to protect the environment. The permits were issued on February 7, 1995. The Residents appealed all three permits that same month.
In March 1995, the federal government became involved, as the Western Economic Diversification department (WED) considered helping in the financing. Their involvement created another possible requirement for a full environmental impact assessment. Any federal funding involvement carries the need to consider whether the project should go under the federal Environmental Assessment and Review Process (EARP). The initial assessment concluded that no full-scale environmental impact assessment was required for this project.
To this point, then, the project was not required to go through a full environmental impact assessment under either provincial law (the Major Projects Review process) or federal law (the Environmental Assessment and Review Process).
On July 21, 1995, the Deputy Director upheld the decision of the regional waste manager after reviewing written submissions. On August 1, 1995, Sierra Legal Defence Fund, as counsel to the Residents, gave notice of a further appeal to the Environmental Appeal Board and asked for stays of each permit. On August 10, the Board wrote to Bennett offering them full party status; they accepted. On August 18, the Mayor of Taylor wrote to the Board giving background information and support for the project. The Board offered the local government limited standing at the appeal to make submissions, but no submissions were ultimately made by the Town in this appeal.
On October 20, 1995, the Board stayed all three permits.
DISCUSSION AND FINDINGS
After all of the evidence had been presented, it became clear that this appeal turned on one central question. What, exactly, must the regional waste manager consider in order to satisfy him or herself under section 8 of the Waste Management Act? That section states that the manager has the discretion to issue a permit “subject to requirements for the protection of the environment that (the manager) considers advisable”. The Residents claimed that a number of parameters were not assessed (increased vehicle traffic, slope stability, health effects, public input, treatment alternatives) that transcended strict waste management issues. Such issues would certainly be assessed in an socio/economic/environmental assessment. However, this project was not required to go through an environmental impact assessment under either the provincial or federal processes. What effect does that have on the waste manager’s responsibility? In the absence of an external environmental impact assessment, must similar assessments be carried out to satisfy the regional waste manager under section 8?
There are two extremes in interpretation - an “assessment” interpretation and a “referral” interpretation. If one applies an “assessment” interpretation, one assumes that a full environmental impact assessment is required to allow the manager to meet the task under section 8. If the assessment is carried out under another statute, that makes the manager’s job easier. However, if no one else orders such an assessment, the manager has to do so. More specifically, the manager cannot simply rely on the comments of other agencies. The manager must ensure that all probable environmental impacts have been identified, analysed, and avoided or mitigated before he or she could be satisfied that the environment could be protected.
At the other extreme, a “referral” interpretation means that considerably less would be required. The manager could rely on the existence of environmental impact assessment processes under other statutes. Whether a particular project did or did not need comprehensive assessment under the generic assessment process would be irrelevant to section 8 of the Waste Management Act. For purposes of the Act, the manager could rely heavily on the opinions of other agencies. Specifically, the manager could be required simply to solicit comments from various provincial and federal government agencies, leaving it to them to identify potential environmental problems. The manager would then be obliged (although not compelled) to add permit conditions to ensure that any potential problems identified by other agencies were adequately mitigated. However, there would be no independent responsibility to ensure that all necessary assessments are done.
An illustrative example of the importance of interpretation is the major concern raised by the Residents in this appeal about the health effects of small particulates (called “PM10’s”, including particulates less that 10 microns in diameter). The evidence showed that there is an air pollution problem in Taylor, especially during winter inversions. Particulates were likely a major pollutant, although monitoring has only recently begun. The Ministry of Health, however, had no special health concerns when contacted in 1993. Under the “referral” interpretation, the manager could disregard the health effects of particulates because health officials had no concern. Under the “assessment” interpretation, the Ministry of Health’s limited input would just be one factor. The manager could be required to order that baseline particulates data be collected and that medical effects of small particulates be assessed.
The Panel spent some time considering the interpretation of section 8 and concluded that the proper interpretation was somewhere between the extremes, particularly given erosion of government capacity to carry out assessments (decreasing budget and staff support). Given environmental impact assessment procedures in other statutes, the Panel concluded that a manager need not require a full assessment for waste management purposes. Referral to specialist agencies and fair consideration of their concerns in setting permit conditions should be enough to fulfil the manager’s statutory obligations under section 8. That said, the Panel had concerns about the limited information that was referred to the Ministry of Health regarding the permits under appeal. Those are dealt with in the Recommendations at the end of this document.
GROUND 1 - General Failure to Protect the Environment
The Residents believe that the Deputy Director failed to ensure that the permits were subject to requirements for the protection of the environment in accordance with section 8 of the Waste Management Act. This was an “umbrella” ground, one that encompassed the specific points of appeal that are discussed below. The Panel accepts this ground. Some additional conditions are required to protect the environment. However, the Panel decided that permit cancellation is not necessary. Instead, issuance subject to additional conditions will be adequate to protect the environment.
GROUND 2 - Protection of Environment from Emissions
The Residents believe that the Deputy Director failed to ensure that the permits were issued subject to requirements for the protection of the environment from emissions of various substances. Their first concern was with stack gases. The Panel concluded that stack gases were not a cause for concern, provided that the facility operates within permitted limits. Details are provided below, but virtually all particulates are to be captured in the cyclone or in the bag filters of the quench tower. Acid-producing compounds such as SO2 and NOx will be neutralised in the quench tower and captured. In addition, expert witness Dr. Bates testified that he anticipated no H2S or SO4 to be produced from the facility. There is a very small chance that dioxins and furans will be produced. That leaves several innocuous gases, such as carbon dioxide and steam, to escape as stack gases.
The Panel notes that there are to be monitors in the stack itself for carbon monoxide and carbon dioxide, hydrochloric acid, sulphur dioxide, nitrous oxides, methane and trace metals. There are precise maximum discharge contaminant concentration levels set out in permit PA 12390 and the Special Waste Regulations Schedule 2, Table 1, and the in-stack monitoring is expected to detect exceedences.
The Panel dismissed the ground that the environment will not be adequately protected from emissions of stack gases.
The Residents also believe that the Deputy Director failed to ensure that the permits were issued subject to requirements for the protection of the environment from emissions of heavy metals. Dr. Bates’ expert opinion was that most heavy metals would not be produced by the process. The exceptions were lead and possibly arsenic. He gave a brief outline of the health effects of lead and arsenic. Persistent lead exposure in adults is associated with elevated blood pressure and stroke. In children, lead is deposited in the bones and can cause behaviour problems. Arsenic is a carcinogen which suggests a strong exposure/cancer outcome. There is no threshold for arsenic. Dr. Bates noted that long term lead and arsenic contamination issues were not addressed in the technical reports. He also understood that arsenic was not to be measured in the feed stock. He stated that both of these substances are easy to measure. The Ministry estimated that the bag filters will remove from 91 - 97% of the feed stock lead levels and that they can be measured in the stack. Bennett’s Mr. Ponn estimated that the total metal emissions will be 500 kilograms per year.
The Panel concluded that lead will probably be found in the special wastes that are incinerated, but that the facility as designed will probably capture almost all of this element. The evidence indicated that arsenic is unlikely to be found in the feedstock. The Panel also noted that both lead and arsenic are subject to maximum concentration levels in the stack emissions under Permit PA-12390 and the Special Waste Regulations Schedule 2, Table 1. Therefore, the Panel concluded that there is little risk of escape of harmful concentrations of either lead or arsenic from the facility. Nevertheless, both elements are of potential concern to the public and, because the evidence was that both elements are easy to detect and measure, the Panel has decided that the measurement of the concentrations of these elements in the feedstock shall be added as a precautionary condition to special waste storage permit PS-12392. (This addition is in fact one part of a general obligation that the Panel is imposing to measure contaminants in the feedstock; see Ground 6). Although not a permit condition, the Panel also recommends that lead and arsenic measurement be part of the Ministry’s ambient air monitoring plan. Bennett is required, under Permit PA-12390, section 5.8, to participate in such a monitoring plan.
The Panel thus dismissed the ground that the environment was not adequately protected from emissions of heavy metals, but added a precautionary condition to one permit.
The Residents believe that the Deputy Director failed to ensure that the permits were issued subject to requirements for the protection of the environment from emissions of dioxins and furans. The Ministry noted that these were not expected to be produced, as the halogenated materials necessary for their creation are not allowed into the facility under the permits. However, Mr. Mitchell did testify that hydrochloric acid and O2 in heat could produce dioxins and furans. Mr. Ponn of Bennett also admitted that ordinary salt (NaCl) could be present in the feed stock and create chlorine for potential generation of dioxins and furans. The Panel was told that there is no safe limit for these substances, but Mr. Ponn stated that an activated charcoal filter would effectively reduce these substances in the emissions.
The Panel concluded that there is a small possibility that dioxins and furans may be produced as a result of salt in the feed stock. The Panel considers the risk to be acceptably low if activated charcoal filters are added to the process. Therefore, the Panel adds a condition to Permit PA-12390 to the effect that activated charcoal filters be part of the bag house filtration process. In addition, the Panel recommends that salt be included in the test burn (“demonstration trial”) that must be carried out under Permit PA 12390 prior to operation. That addition would test the production of dioxins and furans from salt and also confirm the effectiveness of activated charcoal filters to capture those substances.
The Residents believe that the Deputy Director failed to ensure that the permits were issued subject to requirements for the protection of the environment from emissions of solid residues. Bennett’s witness stated that pre-treatment storage of solids and soils and post-treatment storage of ash will be in a closed building with negative air pressure generated by a large “induced draft” fan. As a result, any dust from these piles will be sucked into the kiln. The secure land fill will use covered cells to minimise dust escape. As regards the emission of solid residues during the incineration process itself, the Panel finds that the use of a cyclone to remove some particulates and the use of bag filters later in the process is adequate to contain solid residues from that source. In conclusion, the Panel dismissed the ground that the environment was not adequately protected from emissions of solid residues.
The Residents believe that the Deputy Director failed to ensure that the permits were issued subject to requirements for the protection of the environment from emissions of contaminated steam. The evidence indicated two areas of concern. First, the Residents are concerned that the leachate from the special landfill, when collected and incinerated, will add substances such as heavy metals into the process and then into the environment. The Panel could not follow this argument. The source of the leachate can only be from material that has already gone through the incinerator and been captured in the process. This would indicate that any substances coming out as leachate would necessarily be substances that are caught by the process. In effect, the contaminants that make the waste “special” would, at most, be recycled through the process again as leachate. The contaminants would simply be recaptured and sent back to the special landfill. On that basis, the Panel dismisses the appeal ground of leachate contamination.
A second concern was that steam, whether contaminated or not, will impact on the greenhouse and contribute to inversion fogs in the winter. Mr. Ponn, Bennett’s witness, noted that the boiler is a “heat recovery” boiler which will minimise steam production. There is also considerable steam production by other industries in the Taylor area, so the Panel concluded that the effects of some additional uncontaminated steam would be insignificant at the proposed site.
The third concern is that contaminated steam will be released mid-process during any emergency release. Emergency release would occur before the quench tower and bag filter stages can remove many contaminants. However, these emergency releases are not likely to occur frequently. Mr. Ponn described an elaborate series of alarms and feedback safety systems with automatic shut-offs, so most problems will be detected and corrected without emergency releases. Further, Mr. Ponn’s evidence was that any emergency releases would be of “short” duration (only long enough to stop the waste feed, estimated by Mr. Ponn in his evidence as 30 minutes). The Panel concluded that emergency emissions of contaminated steam will likely occur from time to time, but that the risk is too low to deny issuance of permits on that basis. As regards additional permit conditions, the Panel was convinced that all that can be done in backup and maintenance is already proposed. By their nature, emergency releases will be rare and not amenable to mitigation. In conclusion, therefore, the Panel dismissed the ground that the environment was not adequately protected from emissions of contaminated steam.
GROUND 3 - Adequacy of Technical Review, Cumulative Effects
The Residents believe that the Deputy Director failed to require a proper technical review of the permit applications and, in particular, failed to consider the cumulative effect of the operation of the proposed facility. In regard to the adequacy of the technical review, this ground overlaps many of the other grounds for this appeal. The Panel understood this specific ground to be directed at the adequacy of the technical assessment of test burns in other locations, noise impacts and site-specific parameters of the site such as risks posed by the sulphur pile. Other technical assessment issues (such as slope stability, groundwater assessment, etc.) are raised in other grounds to the appeal. The issue of cumulative effects will be dealt with under this ground.
A. Test Burns
Bennett has constructed similar plants in Big Valley, Alberta and Annacis Island near Vancouver. The Annacis Island plant was used to test burn a more complex mix of industrial wastes than that permitted for the facility under appeal. The Panel found that the test burn on Annacis Island was difficult to assess because it had many technical problems, including poor sampling techniques. Those test burns did not meet national guidelines for dioxin, arsenic, chromium and hydrochloric acid. Test burn information from Big Valley was also difficult to interpret because the technical reports did not give feedstock contaminant concentrations. Witnesses for the Ministry and for the Residents both gave evidence that they had difficulty in obtaining accurate compliance data from the Big Valley facility. Such information would have assisted the Panel. Nevertheless, when Big Valley results were compared to the Special Waste Regulation’s Schedule 2 emissions limits, hydrogen chloride, particulates and zinc were above the recommended levels. Mr. Ponn for Bennett testified that there were technical problems with each of the test burns, although some of the results were due to designing the facility to meet standards that are different from those required for the Taylor proposal. He also stated that he understood that a scrubber at Big Valley was defective at the time of testing and that the facility is now within permit levels, but the Panel had no direct evidence on the matter. This lack of information is aggravated by the fact that the technical report for PA-12390 does not provide any assessment of expected feedstock composition.
These data gaps raised a question of whether the manager had adequate information available on effectiveness of the proposal to meet standards. In the absence of additional data, the Panel might have rejected the air emissions permit based on the lack of proof from other Bennett facilities. However, a “demonstration trial” test burn is a precondition to operation of the incinerator; see Permit PA-12390, s. 3. Mr. Mitchell testified that the test burn was added as a precondition precisely because the Ministry felt that test burns done elsewhere were not necessarily comparable. It is assumed that evaluation of the trial will demonstrate compliance capability. The Panel finds that the information in the Technical Reports, supplemented by the requirement for a demonstration trial, was adequate to allow a proper technical review of the permit applications.
B. Noise and Other Impacts
The Residents noted that noise and traffic in Taylor were concerns. On traffic, trucks will be on a designated route to avoid the residential area where children play. In regard to noise, the evidence showed that a central induced draft fan would be very noisy, but that this fan will operate only from 9 to 5 Monday to Friday. In any event, the fan will be housed so that noise will be reduced.
Overall, the Panel finds that local vehicle traffic is within the authority of local government and beyond the control of the Ministry. On the subject of operational noise, the Panel finds that the technical review and the project design are adequate to protect the environment. Nevertheless, the Panel noted with approval recommendations contained in the report by Western Economic Diversification to minimise local impacts. The Panel suggests, but does not require, that Bennett undertake such mitigation measures such as planting to screen the facility and reduce noise.
C. Cumulative Effects
The Residents noted that the Ministry assessed incremental impact and not cumulative impact. The Ministry produced tables, in several revisions, to show that the facility would generate only a very small increase in pollutants, on the order of 2%. With the exception of particulates (dealt with in the next section), the Panel finds that the effects of the facility will be negligible if it is operated to permit specifications. The Panel further finds that it is reasonable for the manager to assume that the facility will generally operate in compliance with the permit.
The only pollution parameter that is currently being regularly exceeded in Taylor is particulates. The Residents argued that any cumulative increase to such an already-excessive pollution level was unacceptable because any increase, no matter how small, would constitute failure to protect the environment. The Panel accepts that premise and finds that any increase to the particulate loading of the Taylor airshed is not acceptable. However, things are not static in Taylor. In particular, a beehive burner, the major contributor of particulates to the Taylor airshed, is scheduled to cease operation. That is dealt with in the following section.
Other than the cumulative effects of particulate discharge, the Panel finds that the technical review of the permit applications was adequate and that cumulative effects were adequately considered. Therefore, the Panel dismissed the ground that the Deputy Director failed to require a proper technical review of the permit applications.
GROUND 4
The Residents believe that the Deputy Director failed to examine the issue of the current air quality and loading capacity of the Taylor airshed, and to assess the requirements for the protection of the environment based on cumulative impacts.
A. Weather
The Residents noted that inversions were common in the winter with plumes of fog at stack height. Taylor is below the Peace River bluff and has calm winds for 80% of an average year. This results in poor dispersion of airborne contaminants. Mr. Sutherland of the Ministry confirmed this in his evidence. The Panel finds that the effects of local weather in Taylor, and especially the periodic poor conditions for dispersal of emissions, must be considered in deciding whether permit conditions can be set that are adequate to protect the environment.
B. Air Pollutants
The sources for pollutants in Taylor include the sulphur recovery plant (SO2, volatile organic compounds or VOC’s, aromatic hydrocarbons or PAHs and nitrous oxides or NOx), the pulp mill (NOx, VOC, particulates), the saw mill (particulates), the grain elevator (particulates), rail operation (diesel smoke, NOx, dust) plus residential users (particulates, NOx and VOC). The Ministry and residents set up a monitoring program in response to exceedences of SO2, H2S and NOx. The Residents noted that the Ministry has been concerned about air quality since 1988, although monitoring at seven in-town stations was not initiated until October of 1994.
Mr. Mitchell of the Ministry noted in his evidence that particulate levels are high in the Taylor area. The largest single source of particulates is the Canfor burner. Mr. Sutherland for the Ministry predicted that simply closing the burner would result in a 70% reduction in particulates, a 13% reduction in N0x, a 40% reduction in VOC and a 66% reduction in carbon monoxide. The Wood Residue Burner and Incinerator Regulation, was presented to indicate that the Taylor burner will be shut down in the near future. In fact, the burner was to have been shut down last year, but the deadline was extended by Cabinet to October, 1996.
In light of the imminent closure of the beehive burner, the Panel concluded that concern about cumulative effects of particulates could be eliminated by delaying operation of the incinerator until the particulate loading in Taylor airshed was reduced.
As regards acid pollutants, the Ministry noted that objective hourly N0x levels were exceeded 1% of the time and that H2S levels were exceeded 5% of the time. However, expert witness Dr. Bates stated that the proposed incinerator facility will not contribute acid-generating gases.
Therefore, the Panel accepts the ground that the Deputy Director failed, given the current particulate levels in the Taylor area, to impose permit conditions adequate for the protection of the environment from the emission of particulates. The Panel adds a condition to Permit PA-12390 such that, prior to beginning operation of the thermal treatment facility, the beehive burner operated by Canfor in Taylor must have ceased operation.
GROUND 5
The Residents believe that the Deputy Director failed to consider the adequacy of the information presented to the Ministry of Health to permit it to conduct an assessment of the health impacts of the operation of the proposed facility and failed to require a full assessment of health impacts to be considered.
The Residents noted that only the permit applications (basically, a 2-page summary) were given to the Ministry of Health. The applications gave no information about the process and the components of waste to be treated. The only chemical compounds mentioned in the application were hydrocarbon, carbon monoxide, sulphur dioxide and particulates. The application did not say what would not be treated i.e., halogenated hydrogen compounds or what may be incidentally included in materials to be treated i.e., heavy metals, in particular lead and arsenic. The Ministry of Health was given from 30 to 60 days to make an assessment under the inter-Ministry referral process. Dr. Barnard, Health Officer, was called by the Residents. She testified that a previous health officer, Ms. Arseneau, would have dealt with the applications. However, she testified that the health officers typically rely on the Ministry of Environment, Lands and Parks to provide any information about exposure risk to local residents and about estimates of contaminant concentrations. Expert witness Dr. Bates gave the minimum requirements for an adequate health assessment. These include monitoring ambient levels of heavy metals, particularly near the site (especially for lead, as there may be a high background level before the plant is even built). He recommended baseline pre-project monitoring of SO2 at the ground level and PM10 so that any additions caused by the project can be defined.
Dr. Bates also testified about changes in health concerns regarding small particulates since the permit applications were circulated. PM10 are small particles less than 10 microns in size. The “Vedal report” which was tendered by the Residents noted that PM10’s constitute inhalable particles capable of entering the breathing passages. PM2.5 particulates are even smaller and can actually enter the lungs. The Vedal report notes that there is no precise threshold for mortality but recommends 20 micrograms/m3 as a threshold. Dr. Bates testified that particles from combustion, especially with an acidic component, are more harmful than those from natural sources such as dust. People with asthma, chronic bronchitis, the old and young are most susceptible. Dr. Bates stated that sulphur dioxide and particulates can have a synergistic health effect (a greater effect combined than separately). The Panel notes that the technical report for PA-12390 did not have any information about PM10. The Vedal report came out after the technical report and only one month before the Deputy Director made his decision. It is unlikely that the new increased concerns about PM10’s, such as a 1994 article by Dockery (Exhibit 27), would have been available for consideration at that appeal.
In summary, the Panel found that these reports significantly altered the regulatory concern about particulates. They indicated special health concerns about small particulates because any additional small particulates would have some health effect (i.e.- no threshold). There was, as of 1994, a need to measure and anticipate the size of particulates, not only total production of particulates. The Panel expects that this information was not known to the Ministry of Health when it originally reviewed the permit applications.
The Ministry stressed that the recent concerns about particulates may be mitigated because the beehive burner (which is by far the primary source of particulates) will be phased out. Further, the Ministry has remedial tools to deal with pollution in the form of Pollution Abatement Orders or Pollution Prevention Orders. On the other hand, Mr. Vogt of the Ministry stated that, in light of new health information, he was not averse to re-referring this permit to the Ministry of Health. He noted that any major amendments to a permit are routinely referred to them.
The Panel notes that section 8 of the Waste Management Act does not require the manager to look at health issues specifically. Nevertheless, the definition of “environment” in the Act is defined as “including the air, land and water and all other external conditions or influence under which man, animals and plants live or are developed.” This broad definition includes health effects. On the other hand, given the Panel’s interpretation that section 8 does not require the waste manager to do a full environmental impact assessment, the Panel concluded that it is not the manager’s task to do a thorough evaluation of health effects of the proposed facility. That is up to the Ministry of Health. Further, the Panel finds that closure of the beehive burner in Taylor will so significantly reduce emissions of all combustion-based particulates in the Taylor area that the minor emissions expected from the Bennett project will have no health impacts. Thus, the Panel dismisses the ground of appeal that the Deputy Director failed to consider the adequacy of the information presented by the Ministry of Health.
Nevertheless, the Panel finds that the Ministry of Health did not, in view of subsequent information on the special concerns with small particulates, request sufficient information to conduct an adequate assessment. Accordingly, the Panel strongly recommends that the manager re-refer the technical reports and the three permits to the Ministry of Health so that that Ministry can provide input into designing a monitoring regime that can assess potential health effects of particulates in the Taylor area. Such a referral will also allow the Ministry of Health to make recommendations for any proposed future permit amendments should that be necessary.
GROUND 6
The Residents believe that the Deputy Director failed to require the identification of the nature and source of the contaminated materials to be treated at the proposed facility with sufficient particularity to enable a meaningful environmental assessment to be conducted.
The Panel heard and read much evidence on the question of what would be accepted for treatment. For example, the Ministry’s Technical Reports indicate an inability to predict the chemical fate of heavy metals with complete accuracy. (It was common ground at the appeal that heavy metal content of crude oils was highly variable.) The Ministry took the position that all special wastes had to be characterised prior to transport under the Transportation of Dangerous Goods Act, which governs transport. Such characterisation would mean that material delivered to Bennett would be identified on the transportation manifest and Bennett could refuse to accept non-permitted types of waste. Bennett noted in a letter of April 15, 1994 to the Ministry that trucks containing unacceptable wastes will simply be rejected and sent back. However, under cross examination by the Residents, it became clear that the characterisation for transportation manifest purposes is very general; there is no legal requirement for comprehensive chemical testing of waste prior to transport. Mr. Vogt of the Ministry relied more on the fact that the permits themselves limited the feed stock material. This was echoed by Mr. Mitchell, who testified that he considered it unnecessary to determine the source because the type of wastes allowed into the incinerator were restricted in the permit.
The question in the Panel’s mind remained unanswered. How would the acceptability of each load be determined, beyond simply taking the shipper’s word for what the waste material includes? The concern is not in regard to hydrocarbon-contaminated soils and sludges; those can be readily identified. The Panel’s concern was that an unscrupulous generator of contaminated waste might include prohibited halogenated hydrocarbons or hydrocarbon-contaminated materials that also had high levels of special wastes that were specifically not allowed by the permit.
Section 7 of PS-12392 does not now require each load to be analysed upon arrival to ensure that it conforms to the permitted material. Mr. Ponn of Bennett indicated that such a requirement would be impractical because the turnaround time to an off-site lab would be at least 2 to 3 days. He also questioned the public trust in the results of an in-house laboratory. The evidence indicated plans for a limited lab on site, but it will simply confirm the waste’s content of hydrocarbons, water and sulphur for waste blending purposes.
The Panel finds that a permit condition is required to ensure additional testing of all waste. As the regional manager is required to ensure that the environment will be protected the Panel finds that a condition should be added to have all materials accepted for storage sampled and tested to determine the content of the full range of potential contaminants (oil, grease, benzene, toluene, ethylbenzene, xylene, light hydrocarbons, polyaromatic hydrocarbons (PAH’s), phenols, total extractable hydrocarbons, polychlorinated biphenyl, heavy metals and organic halogens). Further, the Panel finds that it is necessary to have a lab on site and that the test results be known before the feedstock is blended for incineration. The lab should be required to meet standards for such a facility as set out in the Special Waste Regulations. Finally, the Panel finds that the permit should require the lab to run controls for the Ministry from time to time, both for quality assurance (QA) and quality control (QC). In the former, duplicate blind samples are analysed to confirm that the test results are consistent within the Bennett laboratory. In the latter, duplicate blind samples are tested by other labs to ensure consistency between laboratories.
The Panel considers that these conditions deal with the Residents’ concern about the limited characterisation of waste under the manifests of the Transportation of Dangerous Goods Act and also with the Resident’s concern about avoiding exotic contaminants from foreign jurisdictions.
The Panel also noted that retention of sample test records is not specified in the permits. Retention of records and the likelihood of periodic records inspection by the Ministry would help to ensure quality control and comprehensive testing. Therefore, the Panel decided to add a condition that feedstock testing results be retained on site for at least two years.
GROUND 7
The Residents believe that the Deputy Director failed to require the Ministry to conduct an assessment of the stability of the slope at the proposed landfill site.
The Residents maintained that there was an acquifer causing water in the boreholes. Bennett presented engineering survey reports that concluded that borehole water was from isolated water lenses. Groundwater was deep, 40 metres lower than the site elevation. There was evidence of an acquifer, but it was confined with 10 metres of clay and silt above it. The Panel is satisfied that groundwater is not a factor in slope stability for this site.
Ms. Ponto of the Residents testified that she noticed more direct evidence of slope instability, including slumping on the slope with snow slides in the winter and that buried debris was causing sink holes. Bennett produced two engineers reports which did not note any toe seepage or slumping. Graham Engineering noted that landfill over the toe of the slope would help stabilize and that cutting into the slope would destabilize it. Graham noted that the slope appeared to be stable but recommended “a slope stability analysis should be carried out by an experienced Geotechnical engineer during the next stage of the project”. This request was incorporated into the permit as Clause 4.10 of PR-12391.
Given the cautious requirement for a more detailed slope stability assessment and the conclusions of the engineering reports, the Panel finds that assessment of slope stability assessment was adequate and dismisses this as a ground for this appeal.
GROUNDS 8 and 9
The Residents believe that the Deputy Director should have made the satisfactory completion of the secure landfill as a condition of the issuance of permit PA-12390, being the air emissions permit. Further, the Residents believe that the Deputy Director failed to ensure that secure landfill capacity is adequate to the volume of special waste likely to be produced, estimating that the landfill would be full in 5 years. Because these two grounds both concern the secure landfill, they are dealt with together here.
The Panel was not convinced that completion of the secure land fill had to be a precondition of incinerator operation. The Ministry and Respondent agreed that there were alternative secure landfills that would accept special wastes. If a significant volume of special wastes are produced (i.e. - if much of the treated material cannot be delisted), Bennett will have at least three choices: transport the special waste to a secure land fill outside B.C., shut down, or complete its own secure land fill. Therefore, the Panel dismisses the first ground of the appeal.
On the second ground concerning capacity, similar considerations apply. The total capacity of the secure landfill is clearly much less than the projected output of the incinerator. However, the Panel accepts the evidence of Mr. Mitchell of the Ministry who testified that, in his technical opinion, most of the waste will be delistable after treatment. The Panel concludes that most of the output will be eligible for delisting and will not end up in the landfill. If the Panel is wrong and relatively little material is in fact delisted, Mr. Ponn for Bennett testified that non-delistable material can be sent to other sites such as Swan Hills, Alberta or Arlington, Oregon; they need not be stored in Taylor.
In conclusion, the Panel accepts that the landfill size may be inadequate for the volume of material produced that requires long-term disposal and that expansion may not be possible because of slope and other restrictions. However, that is a potential problem that can be solved by Bennett, presumably by transporting non-delistable materials to special waste storage facilities elsewhere. The Panel finds that the capacity of the proposed secure landfill as permitted is adequate to allow the facility to begin operation. If most of the output can be delisted, the landfill may well be large enough. If the capacity is insufficient, Bennett has other options for disposal. Thus, the Panel dismisses this ground of the appeal.
GROUND 10
The Residents believe that the Deputy Director erred in finding that the Ministry had discharged his duty to mitigate public and agency concerns by “listening to” and “considering” those concerns without responding to them in an informative manner.
The Residents expressed frustration at the consultation process employed by the Ministry. While they admitted that requested information was provided, there was no change resulting from their concerns. Ms. Ponto testified that people were “fed up” with the sources of pollution in Taylor. The Ministry noted that there were many letters written in reply and that 270 questions posed by the Residents were answered. There were three public meetings plus information releases. The Ministry noted that there is a clause specified in the permit for on-going information exchange; the Remediation Facility Community Committee will continue to receive copies of all plans and reports.
The Panel notes that section 8 does not obligate the manager to amend specifications due to public concerns. The Panel found that the Ministry and other officials nevertheless went to some lengths to keep the Residents informed. The Panel dismisses the ground of lack of response to public concerns as a basis for this appeal.
GROUND 11
The Residents believe that the Deputy Director erred in finding that there was no need, in the circumstances of the subject permit applications, to consider alternative remediation options capable of providing permanent solutions for the remediation of hydrocarbon contaminated soils and sludges.
The Residents presented a witness, Ms. White of Rudiger Enterprises, a company that is setting up a bioremediation land farm to treat some 32,000 tonnes of petroleum-contaminated soil. She described how landfarms worked as one alternative treatment method to dispose of hydrocarbon contamination. Basically, contaminated soil is spread out and cultivated, with oxygen and nitrogen added as required. Soil organisms can be added as well. Remediation by land farming would take some 2 years to complete, during which time lighter petroleum products would simply evaporate into the air. She noted that a landfarm would not concentrate contaminants. Mr. Mitchell of the Ministry testified that bioremediation had been used successfully in the Prince George area for lighter hydrocarbons (gas, diesel), but that he was unsure if the process would handle heavier hydrocarbons. Further, landfarming did nothing to capture, immobilise or dispose of heavy metals. Regardless, Mr. Mitchell confirmed that the Ministry had not considered alternative treatments in the context of this application.
The Panel concluded that landfarming as a remediation technique in northern B.C. is not well tested yet. In any event, this issue was not considered relevant because the Panel did not interpret section 8 of the Waste Management Act as obligating the manger to consider alternatives. The Act makes the manager reactive rather than proactive. A proposal is made and the manager must simply decide whether the discharge can be regulated by permit in a way that will be adequate to protect the environment. Alternatives need not be considered. Thus, the Panel dismisses the ground of disregard of alternative remediation options as a basis to rescind the permits.
GROUND 12
The Residents believe that the Deputy Director erred in failing to make any finding on the responsibility of the Ministry to evaluate the need for treating contaminated soils and assess the risk posed by those soils relative to the risk posed by the proposed incinerator.
The Residents noted that simply leaving contaminated soils on site created a lower health risk than concentrating those contaminants at one treatment site. They took the position that there was no proven need for this project. The Ministry countered by saying that it is up to a proponent to determine whether there was a market for such services and that it is not the responsibility of the manager to do this. Bennett noted that leaving waste in the ground could create problems such as groundwater contamination, and that there is ongoing generation of special waste in the province.
As for ground #11 above, the Panel concluded that this issue was not particularly relevant because the Panel interpreted section 8 of the Waste Management Act to create no obligation on the manger to consider the need for treatment of contaminated soils. In this regard, the Act again makes the manager reactive rather than proactive. A proposal is made and the manager must simply decide whether the discharge can be regulated by permit in a way that will be adequate to protect the environment. Need for treatment is irrelevant. Thus, the Panel dismisses the ground of failure to evaluate need for treatment as a basis to rescind the permits.
ORDERS SOUGHT
1. Setting aside the decision of the Deputy Director - DISMISSED.
2. Varying the decision of the Deputy Director to impose conditions on the subject permits, as follows:
b) that the facility shall be permitted to operate only after the Level A air quality objectives have been met - GRANTED IN PART by requiring that the facility be permitted to operate only after the beehive burner operated by Canfor has ceased operation;
c) that the completion of an adequate groundwater study and slope stability assessment be made preconditions - DISMISSED;
d) that the proponent be required to demonstrate, as a permit condition, that the capacity of the secure landfill will be adequate - DISMISSED;
e) that the full technical review be forwarded to the Ministry of Health and that all permits be subject to conditions as may be necessary to answer that Ministry’s concerns - DISMISSED;
f) that the restrictions on the nature and source of the material to be treated be expanded to provide that no PCB’s, medical or other hazardous wastes nor any wastes originating outside B.C. be accepted for treatment - GRANTED, EXCEPT WITH REGARD TO NON-B.C. WASTE; and<
g) such other conditions as the Panel may deem appropriate - GRANTED, AS SPECIFIED BELOW.
1. to Permit PA-12390, such that activated charcoal filters be part of the bag house filtration process;
2. to Permit PA-12390, such that the beehive burner operated by Canfor in Taylor must have ceased operation before the permit becomes effective;
3. to Permit PS-12392, such that there be a laboratory on site to carry out comprehensive testing and characterisation of feedstock prior to any incineration;
4. to Permit PS-12392, such that all sample analysis records concerning feedstock be kept on site available for inspection for a minimum of two years;
5. to Permit PS-12392, such that the materials prohibited under Schedule 3 of the regulations, already applied to Permit PR-12391, also apply to the short term storage permit.
RECOMMENDATIONS AND COMMENTS
The evidence in this hearing raised many concerns with the Panel, but some were not amenable to satisfaction by adding permit conditions. The permits bind Bennett, not the Ministry. Therefore, when the Panel had concerns about the actions of regulatory agencies, those could not be addressed through the permits under appeal. Those concerns are raised in the recommendations that follow. On other issues, the Panel felt that more should be done, but did not feel that additional action should be actually entrenched in the permits. Such issues are dealt with as comments here. Neither the recommendations nor the comments are intended to be enforceable conditions; rather, they are suggestions that the Panel feels may help to answer tangential issues or increase comfort of the residents of Taylor.
1. RECOMMENDATION - Materials Referred to Other Agencies
While the Panel found that there is no obligation on the regional waste manager to ensure that health and environmental effects are properly assessed by other Ministries, simple referral of the permit application is inadequate given the technical complexity of the project. The technical reports provided a much more comprehensive review. The Panel recommends that the technical reports be included in referrals of complex projects to other agencies, both federal and provincial. In specific regard to recent health concerns on small particulates, the Panel strongly recommends that the manager re-refer the technical reports and the three permits to the Ministry of Health for reconsideration so that the Ministry can provide input into a monitoring regime to assess potential health effects of particulates in the Taylor area.
2. RECOMMENDATION - Feedstock for Test Burn
The Panel recommends that the capacity of the facility to capture dioxins and furans be tested during the demonstration trial. Specifically, the Panel recommends that salt and equivalents for dioxin and furan be added to the feedstock in the demonstration trial that is to be carried out prior to full operation of the incinerator. Presuming that activated charcoal filtration has been added to the bag-house, the air emissions should be tested to confirm that neither the inclusion of salt (which may cause dioxins and furans to be created in the facility) nor accidental inclusion of dioxins and furans in the feedstock would result in emission of dioxins or furans out of the stack.
The Panel also recommends that the Ministry ensure that the technical problems encountered in the Annacis Island and Big Valley burns be identified and that the Ministry ensure that those problems not recur in the demonstration trial.
3. RECOMMENDATION - Air Quality Monitoring
Throughout the hearing, the Panel was informed that changes were planned for the monitoring system. The Residents gave evidence that both PM10 and PM2.5 levels were to be measured. They also noted there is a plan for a continuous PM10 monitoring station once the beehive burner has been shut down. Mr. Lamble of the Ministry recommended in October 1993 that Bennett acquire a PM10 monitor, a meteorological collection system (recording wind speed and direction), and a continuous stack particulate and opacity monitor. The Panel recommends that the PM10 and PM2.5 data be collected as part of the air monitoring program by 10 microgram/m3 increments, if possible, because health effects are reported to be related to increases of this magnitude. The Vedal report suggests that temperature should also be monitored as it can confound particulate effects (respiratory effects occur from cold temperatures regardless of PM10 levels). Mr. Sutherland of the Ministry noted plans to measure carbon monoxide, ozone and hydrocarbons at the gas plant, the Chapple residence and in mid-Taylor. The Panel recommends that these monitoring activities be carried out, and that monitoring of ambient lead and arsenic in the Taylor airshed be added. The Panel also recommends that the SODAR data referred to in evidence be incorporated, if possible, into the Taylor airshed monitoring program to add data on wind speeds and temperatures at various altitudes.
4. RECOMMENDATION - Public Review of Permit Amendments
The Panel concluded that public interest and concern about this project is high (both pro and con) in the Taylor area. The Panel notes that minor amendments to the permits do not always have to be put through public review. The Public Notification Regulation separates amendments into “major amendments” that are subject to public notification and “minor amendments” that can be made by the manager. It is recommended by the Panel that all future amendments to the three permits under appeal be processed as “major amendments” and also forwarded the Taylor Remediation Facility Consultative Committee so that local residents are kept fully informed of any changes.
5. RECOMMENDATION - Acidity Issue
The Panel noted that the bag house ash will have a pH of 12 which is caustic to the point of creating health effects such as burns. There was no evidence to show that these caustic materials would be neutralised before disposal. Schedule 3 and 4 of the Special Waste Regulation do not deal with pH hazard, and it is also not included in the delisting protocol (which concerns hydrocarbons only). The Panel recommends that this issue should be clarified by the Ministry and that neutralisation conditions be added if required.
6. RECOMMENDATION - Security for Long-Term Storage Facility
The Panel has the inevitable concern about the ability of any facility, no matter how well designed, to contain special wastes indefinitely. The security to be posted with the Ministry by Bennett is an important and complex issue, one that was not specifically raised at this appeal. The exact details of security to be paid by Bennett remains to be determined between the Ministry and the proponent in future. The Panel recommends that the Ministry review another recently-released decision of the Environmental Appeal Board that considered the issue of indefinite security. That decision was 7437 Holdings, Ltd., decision 94/22, and the Panel recommends that the same principles (see pages 11 and 12) be applied in deciding on security for the Bennett proposal.
7. COMMENT - The Policy of Sympathetic Regulation
Although the Panel confirms, with variation, the issuance of the permits, the nature of the permit conditions raised a serious concern for the Panel. Many plans, approvals and details are left to be worked out in the future under these permits. For example, monitoring of dustfall may or may not be required; it is left to the discretion of the manager. Precise ash disposal requirements remain to be determined and authorized. Filters are to be treated, but only after a Filter Management Plan is prepared and approved. Plans and specifications for the secure land fill remain to be submitted and approved. The same for stormwater management. A closure plan, including ultimate disposal of special waste, is not yet prepared and approved. Monitoring and test methods for particulates, sulphur dioxide, nitrogen oxides, ambient air and groundwater must all still be proposed and approved. Pre-treatment sampling and pre-landfill characterisation of wastes must be done, but the sampling protocols have not yet been determined. Contingency plans have not been prepared, submitted or approved. The amount and form of financial security to be posted remains to be decided. More detailed slope stability work is required before the secure landfill is constructed. And so on. The entire incinerator must be brought in and assembled for the demonstration trial. Operation is conditional on a successful test burn.
The concern of the Panel is: “What happens if proposals for plans, sampling, and so on are not adequate? Has the Ministry already implied future approval by issuing the permits now? Would the Ministry withhold future approvals? Could the facility be shut down?” More importantly, plan preparation and assembly/operation for the test burn will require considerable expenditure by Bennett. Is the Ministry’s ability to withhold future approvals compromised if Bennett is encouraged, by issuance of these permits, to spend such sums?
At first glance, the Panel saw no credible cause for concern. The Ministry appeared to have made it clear to Bennett that these permits were in the nature of approvals in principle. Bennett could construct, at its own risk, but the Ministry reserved the right to withhold future approvals if necessary, regardless of the issuance of the three permits. The Panel’s faith was shaken, however, by the Ministry’s evidence. Mr. Mitchell answered a question from the Panel by confirming that it is the policy of the Waste Management Branch to avoid shutting down an existing operation except as a last resort. He echoed what regional waste manager Mr. Girard had stated in his submission to the Deputy Director at the previous appeal: “... it is not our intention to close the facility if it fails to operate within limits.... Shutting down the facility would be considered as a last resort if chronic non-compliance occurred and such authority is in the power of the Minister.”
Mr. Chapple, the neighbour to the west of the incinerator site, expressed concern at the hearing about his ability to stop operation of the incinerator if they cannot meet permit conditions. In light of the Branch policy, the Panel shares his concern. If the Bennett incinerator breaches permit conditions, it may be temporarily shut down. Charges may be laid and fines imposed. However, once constructed, the facility will continue to operate. For many waste discharge situations, the concern may be merely academic; a policy of coaxing compliance may well be successful most of the time. However, the general concern is aggravated when so much remains to be determined and approved, as in the permits under appeal. Additionally, this proposal is the first of its kind in B.C. Given a Ministry reluctance to shut down an operation, it is a logical extension to presume that the manager will be reluctant to withhold a future approval for a small shortcoming in a plan for dustfall monitoring, for ash disposal, for filter management, for design of the secure land fill and so on. The Panel remains very concerned that so many details must await future approval from a Branch that, as policy, uses “sympathetic administration”. It may be that the proponent needs an early “approval in principle”, but the possibility of ultimate refusal must be made clear and the Ministry must be prepared to be firm. If, on the other hand, relaxed enforcement by persuasion rather than shut-down is the way to go, all the essential details should be worked out and agreed to in advance. Instead, these permits reflect the worst of both - deferred approvals matched with a reluctance to close down an operation. The additional conditions imposed by the Panel in this appeal are a reflection of the Panel’s lack of faith in this aspect of the regulatory process.
8. COMMENT - Studies on the Health Effect of Airborne Pollutants
It was clear from the evidence that the town of Taylor has an air pollution problem. There is comprehensive air quality monitoring under way. The data (both air and medical) available from Taylor would be valuable, but the population of Taylor is apparently too small to provide the sample sizes required for meaningful statistical interpretation of the results. The Panel suggests that the Ministry of Health consider including the Taylor area in a larger study under way in Prince George on the health effects of air pollutants. It would be a shame to lose the data that Taylor could provide.
COMMENT - Air Modelling Alternatives
The Panel heard much confusing evidence about the appropriateness of the air dispersal model (SCREEN) that was used to try to predict how pollutants would be deposited in the area. The model used generates its own imaginary worst case dispersal assumptions, completely independent of actual weather conditions. Where actual weather information was used, it came from either Fort St. John or Fort St. John airport. No allowance was made for the fact that the project would be situated in a bowl prone to inversions. The Ministry stated that actual wind and dispersal conditions were irrelevant, given the worst-case assumptions and the limited use made of the modelling results. The Residents felt that actual dispersal conditions were crucial to assess the impact on the environment. This academic debate was further clouded by evidence that there was now a new, improved SCREEN model that did incorporate some actual weather data. The Panel remained confused about the reliability of models, the appropriateness of different models, the use to which the modelling results were put, and even the need for models at all, given the air monitoring program. One modelling matter did emerge, however. It is important that modelling, if it is done, differentiate between the size of particulates. The tiny, combustion-created particulates are the ones with the greatest health hazard and these are the ones that will tend to escape cyclones and bag filters. It is no longer enough to say that x tonnes of particulates will be dispersed in such and such a pattern.
Elizabeth Keay, Panel Member
Carol Martin, Panel Member
March 28, 1996
MINORITY DECISION OF PANEL CHAIR BEN van DRIMMELEN
I concur with the majority decision in its entirety with one exception.
That exception applies to Ground 6 of the Grounds of Appeal and the testing of contaminated materials at the time that they arrive on site for storage and treatment.
Section 7 of PS12392 does not require each load to be analysed upon arrival to ensure that it conforms to the permitted material. I have decided that a permit condtion should be added to have all materials that are accepted for storage be tested to determine the content of several specific contaminants: heavy metals (including the lead and arsenic mentioned under ground 2 above), halogens (whether as chlorinated or fluorinated hydrocarbons or in any other form, such as salt) and polychlorobiphenyls (PCB’s). It is not necessary to have a lab on site. It would be acceptable to allow the feedstock to be processed, even in possible contravention of the permits, before the sample analysis results were known. In the worst case, permit conditions could be violated from time to time; however, Bennett would know within days that contraband had been submitted and would know the generator of the offensive waste. Bennett would presumably refuse to accept any additional material from that generator. As back-up, the record of the contravention would remain on site, available for inspection by the Ministry.
Ben van Drimmelen, Panel Chair
March 28, 1996
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