Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: September 18, 2015
CASE NO.: 15-033
PROCEEDING COMMENCED UNDER section 139(2)(d) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Corporation of the Municipality of Wawa
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Alteration of terms and conditions imposed on an Environmental Compliance Approval to use and operate a landfilling site
Reference No.: A7266501
Property Address/Description: 161 High Falls Road, Lot MS54, Part 1 & 2, Plan IR-4972/IR-7885
Municipality: Rabazo Unorganized Township, District of Algoma
ERT Case No.: 15-033
ERT Case Name: Wawa (Municipality) v. Ontario (Environment and Climate Change)
Heard: August 25, 2015 by telephone conference call
APPEARANCES:
Parties Counsel/Representative
Director, Ministry of the Environment and Climate Change Sylvia Davis
Corporation of the Municipality of Wawa Brian Sheridan and James Neufeld
DECISION DELIVERED BY HUGH S. WILKINS
REASONS
Background
1On November 2, 2005, Ian Parrott, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Environmental Compliance Approval No. A7266501 (the “ECA”) to the Corporation of the Municipality of Wawa (the “Appellant”) for the operation and design of the Michipicoten Landfill Site located at 161 High Falls Road, in the Rabazo Unorganized Township, District of Algoma (the “Landfill”). The ECA allows for the acceptance and deposit of solid municipal waste at the Landfill as long as there is available capacity.
2The ECA has been amended several times. On February 1, 2011, Tes Gebrezghi, Director, MOECC, made amendments to the ECA, which, among other things, added a new para. 11(a) and (b). This required the Appellant to assess the total volume of waste that was deposited in the Landfill and allowed for the “emergency expansion” of the Landfill for an additional capacity of 34,000 cubic metres, provided that the Appellant cease accepting and depositing waste no later than May 2012, or earlier, if this additional volume of waste was accepted at the Landfill.
3On August 1, 2012, Mr. Gebrezghi further amended para. 11(b) by extending the date for the cessation of the acceptance and deposit of waste to May 2014. This date was again extended on April 16, 2015 by an amendment made by Dale Gable, Director, MOECC, changing it to December 2015 (see: Amendment to ECA No. A7266501, Notice No. 4, dated April 16, 2015).
4On April 28, 2015, the Appellant appealed the April 16, 2015 amendment on the ground that the time period should be extended to April 16, 2017.
5On August 12, 2015, the Director sent email correspondence to the Tribunal stating that the Parties had entered into a settlement agreement, dated July 9, 2015 (the “Settlement Agreement”), which is attached as Appendix A to this Decision. It provides that the Appellant will withdraw its appeal upon receipt of an amendment to the ECA extending the date for the cessation of the acceptance and deposit of waste to April 16, 2016. Based on the Settlement Agreement, the Director requested that the appeal be dismissed.
6On August 25, 2015, a preliminary hearing was convened by telephone conference call (the “Preliminary Hearing TCC”), at which time the Parties made submissions regarding whether the Settlement Agreement conforms to Rule 201 of the Tribunal’s Rules of Practice and Practice Directions (the “Tribunal’s Rules”). No member of the public sought status to participate in this proceeding.
Relevant Legislation and Tribunal Rules
7The relevant legislation and Tribunal’s Rules are set out below:
3(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.
Rule
- Where there has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any Party that alters the decision under appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or issue a decision dismissing the proceeding.
Issue
8The issue is whether the terms of the Settlement Agreement are consistent with the purpose and provisions of the Environmental Protection Act (“EPA”) and in the public interest, and whether the hearing should be continued or the proceeding dismissed, in accordance with Rule 201.
Discussion and Analysis
9Sylvia Davis, counsel for the Director, advised the Tribunal that the Appellant is undertaking an environmental assessment to determine a long-term waste management plan for the area. On behalf of the Director, she submitted that the Settlement Agreement provides the Appellant with more time to complete the environmental assessment, while limiting the time period during which waste may be accepted and deposited at the Landfill. She noted that the Settlement Agreement also limits any future time extensions to no more than 12 to 18 months, unless the Director determines otherwise. She added that the Settlement Agreement requires that the Appellant waive its right to appeal extensions on the grounds that the extension should be more than 12 months. She advised the Tribunal that both Parties have committed to make best efforts to expedite the environmental assessment process.
10Ms. Davis submitted that the Settlement Agreement is consistent with the purpose of the EPA, which, as set out in s. 3 of the Act, is to provide for the protection and conservation of the natural environment. She also submitted that there is a public need for the continued operation of the Landfill in order to dispose of locally generated municipal waste, provided that it is done safely and without danger to the environment. She further submitted that the Settlement Agreement accommodates this need, noting that the Settlement Agreement expressly states that the Director is not precluded from issuing orders or laying charges should conditions change and a threat to the environment arise. She advised the Tribunal that close monitoring of the groundwater in the area is being undertaken to detect any adverse environmental impacts. Ms. Davis also advised that this monitoring presently shows no evidence of groundwater contamination.
11The Appellant supported the Director’s submissions. It arranged to have its environmental consultant, Jim Harmar, participate in the Preliminary Hearing TCC. Mr. Harmar advised the Tribunal that, under the ECA, semi-annual groundwater monitoring is required. He also advised that water samples taken during monitoring of groundwater near the Landfill have not raised concerns of adverse impacts. He further advised the Tribunal that the monitoring wells are well-placed and groundwater flows relatively slowly in the area. Mr. Harmar informed the Tribunal that the Landfill is the only municipal waste disposal site within 100 kilometres of the Appellant, suggesting, therefore, that there is a public interest in keeping it open. He further advised the Tribunal that the environmental assessment to determine a long-term waste management plan will likely take up to one year and that a further extension for the acceptance and deposit of waste at the Landfill will likely be necessary.
12Both the Appellant and Director advised the Tribunal that the Ministry of Natural Resources and Forestry owns the lands adjacent to the Landfill and that it does not object to the settlement. They also advised the Tribunal that they are unaware of any existing well users downgradient of the Landfill who could be affected by leachate or of any public concerns regarding the Landfill’s possible impacts to the environment.
Findings
13Based on the representations of the Parties, the Tribunal accepts their submissions that the Settlement Agreement will facilitate the completion of the environmental assessment process, while continuing to provide the Appellant with a landfill for municipal waste that is closely monitored for environmental effects. The Tribunal finds that it is in the public interest to have an environmentally-safe waste disposal site available to accommodate the needs of the municipality, particularly given the absence of other municipal waste disposal sites in the vicinity of Wawa. The Tribunal also accepts the Director’s assertion that the settlement agreement does not restrict the Director’s ability to order restrictions on the operation of the Landfill if environmental concerns arise in the future.
14The Tribunal notes that there is a concern whether the Landfill can safely continue to take additional waste over the longer term, as the Parties have advised the Tribunal that more time may be needed to complete the environmental assessment process, which may result in further extension requests. However, the Tribunal relies on the Director’s representations that both Parties have committed to make best efforts to expedite the environmental assessment process and that close monitoring of the Landfill is being undertaken. Based on these representations, the Tribunal expects that the Parties will ensure that a long-term waste management plan is implemented in short order.
15Based on the representations of the Parties, and the Tribunal’s findings, as set out above, the Tribunal finds that the Settlement Agreement is consistent with the purpose and provisions of the EPA and is in the public interest. As there are no participants or presenters in this proceeding, the additional requirement in Rule 201 to consider their interests does not apply here.
DECISION
16Pursuant to Rule 201, the Tribunal accepts the Appellant’s proposed withdrawal of the appeal and dismisses this proceeding.
Proposed Withdrawal of Appeal Accepted
Appeal Dismissed
“Hugh. S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix A – Settlement Agreement, dated July 9, 2015
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Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Appendix A Settlement Agreement, dated July 9, 2015