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Wake up and Smell the … What?: EAB Confirms ‘Smells’ Aren’t Air Contaminants

September 6, 2022

The Environmental Appeal Board (EAB) has clarified that limits and restrictions on activities under permits related to air contaminants cannot be used as a backdoor to target what are really the effects of air contaminants, i.e., odours.

In 2018, GFL Environmental Inc. was issued an air quality management permit for the operation of a composting facility in Delta. One of the purposes of this permit was to ensure the facility would not make the surrounding area too smelly. To accomplish this, the permit put limits on odorous emissions through the use of a “Sniff Test”, whereby an “Approved Person” would smell the air for given periods of time, at set distances from the facility. GFL appealed various parts of the permit on the basis that the terms of the permit would not further the goal of protecting the environment, were too restrictive, and were beyond the authority of the District Director.

In March 2021, the EAB noted that the relevant legislation and bylaws gave the District Director authority to “place limits and restrictions on the quantity, frequency and nature of an air contaminant permitted to be discharged and the term for which such discharge may occur” in its issuance of a permit. Therefore, whether the permit in question was appropriate depended on whether the definition of “air contaminants” includeds odours. The EAB held that odours alone are not substances, and thus cannot be captured by the definition of “air contaminants”, stating that “[odour] is not a ‘substance’, rather it is the interaction of a substance with the olfactory senses. It is a property of a substance – a consequence.

While the EAB was critical of the District Director’s use of an air management permit to effectively regulate odours with the use of a “Sniff Test”, the EAB also acknowledged there was an appropriate way to address the emission of odours. For instance, the EAB directed that the permit be amended to require GFL to implement an Odour Management Plan, which might be informed by using a variation of the “Sniff Test”.

This decision suggests there may be ways to manage the effects or consequences of an air contaminant, like odours, such as requiring a management plan, this cannot be done under the guise of regulating the “substances” themselves.

This post was co-authored by Harper Grey lawyer Nicola Virk and Harper Grey articling Student Amelia Radke.

Want to keep updated on air contamination and managing ‘effects’ of them? Contact Richard Bereti ([email protected]) or Nicola Virk ([email protected]).

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Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: September 6, 2022.

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