Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
October 29, 2015
CASE NO.:
12-033
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Appellant:
Concerned Citizens Committee of Tyendinaga and Environs (CCCTE)
Instrument Holder:
Waste Management of Canada Corporation
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Terms and conditions imposed under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, for an Amended Environmental Compliance Approval of the use, operation, and closure of the Richmond Landfill Site.
Reference No.:
A371203
Property Address/Description:
Lot Pt 1, 2, 3, Concession 4
Municipality:
Town of Greater Napanee
Upper Tier:
County of Lennox and Addington
ERT Case No.:
12-033
ERT Case Name:
CCCTE v. Ontario (Environment and Climate Change)
Heard:
In writing
APPEARANCES:
Parties
Counsel
Concerned Citizens Committee of Tyendinaga and Environs
Richard D. Lindgren
Director, Ministry of the Environment and Climate Change
Paul McCulloch
Waste Management of Canada Corporation
Harry Dahme
Mohawks of the Bay of Quinte
Priya Vittal
Tom Touzel on behalf of Napanee Green Lights
Ian Miron
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY
BACKGROUND
1This order deals with a written request to amend an order issued by the Environmental Review Tribunal (“Tribunal”) on July 21, 2015 and amended on August 13, 2015.
2On January 9, 2012, Ian Parrott, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Amended Environmental Compliance Approval number A371203 (the “ECA”), under s. 20.3 of the Environmental Protection Act (“EPA”), to Waste Management of Canada Corporation (“WMC”) for the use, operation and closure of the Richmond Landfill Site (the “Site”), located at Lot Pt 1, 2, 3, Concession 4, Town of Greater Napanee, County of Lennox and Addington, Ontario. Notice of the Director’s decision to issue the ECA was posted on the Environmental Registry on January 16, 2012.
3On January 30, 2012, the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”) sought leave to appeal the Director’s decision pursuant to s. 38 of the Environmental Bill of Rights, 1993 (“EBR”).
4On March 30, 2012, the Tribunal granted CCCTE leave to appeal the following conditions in the ECA, under the EBR: Condition 8.5 (Monitoring Programs); Condition 9.1 (Groundwater and Surface Water Impact Contingency Plan); Condition 9.2 (Leachate Collection System Contingency Plan); Condition 9.5 (Public Notification Plan for Contingency Plans); and Conditions 14.1, 14.2 and 14.3 (Monitoring Reporting and Annual Reporting). The Tribunal lifted the automatic stay under s. 42(1) of the EBR until the Tribunal issues its decision on the appeal or until the Tribunal orders otherwise.
5On April 13, 2012, CCCTE (the “Appellant”) filed a notice of appeal with the Tribunal, pursuant to s. 139, s. 142 and s. 145.2 of the EPA, in respect of the above-noted ECA conditions.
6At the commencement of the preliminary hearing on June 25, 2012, held at Selby Community Hall, Selby, Ontario, the Tribunal granted party status in this proceeding to MBQ and to Dr. Tom Touzel as the representative of Napanee Green Lights (“NGL”). The preliminary hearing was continued by telephone conference call on September 11 and November 8, 2012, February 26 and March 7, 2013, and at the Deseronto Community Centre, Deseronto, Ontario on April 12, 2013.
7During the continued preliminary hearing on April 12, 2013, the parties presented to the Tribunal the terms of two settlement agreements with respect to the amendment of certain conditions of the ECA, and certain further investigations and work to be done. The Appellant undertook to withdraw and discontinue the portions of its appeal relating to the provisions of the ECA amended as a result of the settlement agreements. In its decision dated April 26, 2013, the Tribunal accepted the settlements and the withdrawal of the related portions of the appeal, and ordered the Director to amend the ECA accordingly, all as agreed by the parties.
8The ECA conditions that remain under appeal are: Conditions 8.5(b) and (c), which require WMC to provide an addendum report to the Environmental Monitoring Plan (“EMP”), including adequate details on groundwater and surface water monitoring locations, and monitoring frequencies and parameters; Condition 9.1, which requires that WMC submit for approval a Groundwater and Surface Water Impact Contingency Plan that incorporates the additional information collected from the groundwater investigations and includes trigger mechanisms associated with the groundwater and surface water monitoring programs; and Condition 9.2, which requires that the Leachate Collection System Contingency Plan be initiated when specified trigger mechanisms have been identified as occurring.
9Additional background information about this proceeding is provided in the Tribunal’s orders of July 25 and October 5, 2012, April 3 and 26, and August 28, 2013, January 10, May 8 and 30, September 25, and October 2, 2014, and February 5, March 27, June 18, and July 21, 2015.
10The hearing of this appeal took place over 19 days from April to June 2015.
11On July 21, 2015, the Tribunal issued an interim order to address conditions in relation to the fall 2015 monitoring season, pending its final decision in this matter. The requirement for any additional amendments to the ECA and further modifications to the EMP remain under consideration by the Tribunal and will be addressed by the Tribunal in its final decision.
12On July 28, 2015, WMC requested that the Tribunal vary its interim order of July 21, 2015 to extend the date set out in Condition 8.5(c)(iii) from September 30, 2015 to November 1, 2015, based on the need to complete hydraulic testing and downhole geophysics for the M178 replacement monitoring wells prior to conducting further work at monitoring wells M187 to M191. The Tribunal granted WMC’s request and issued an amending order on August 13, 2015.
Discussion, Analysis, and Findings
13On October 14, 2015, WMC requested that the Tribunal further vary its interim order of July 21, 2015 to extend the date set out in Condition 8.5(c)(iii) from November 1, 2015 to December 1, 2015. WMC stated that the extension is requested to permit it to complete the work that is required pursuant to this Condition. WMC submitted that it commenced this work without delay but additional drilling was required due to the conditions encountered at the location of the replacement wells for M178. WMC further submitted that the previous schedule for the work assumed that only two aquifer pumping tests would be conducted, but a third pumping test was performed as a result of the preliminary field data collected during the first two tests.
14WMC explained that this unanticipated work has resulted in a delay in completing the work required by Condition 8.5(c)(iii) and additional time is required to: evaluate the additional data obtained; meet with the MOECC to discuss the test data and determine the appropriate depths for the installation of monitoring wells; install and develop the monitoring wells; and collect two rounds of samples for testing at least two weeks apart. WMC said that its request to extend the time set out in the Condition would not change the date for delivery of the report and therefore not result in any prejudice to any party.
15The Tribunal grants WMC’s request as WMC has provided a reasonable explanation of the necessity of the proposed amendment, and none of the other parties objected to WMC’s request within the timeframe set out by the Tribunal.
ORDER
16The Tribunal amends its order, dated July 21, 2015 (as amended on August 13, 2015), such that the date in Condition 8.5(c)(iii) be changed from November 1, 2015 to December 1, 2015. The Tribunal orders the Director to further amend the ECA, on an interim basis until the Tribunal issues its final decision in this appeal, to reflect the above amendment.
Tribunal’s Order Amended
Director Ordered to Amend Environmental Compliance Approval
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
member
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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