ML Ready Mix Concrete Inc. v. Ontario (Environment and Climate Change), 2015 CanLII 78962

Environmental Review Tribunal

Tribunal de l'environnement

ISSUE DATE: November 23, 2015

CASE NO.: 14-061

PROCEEDING COMMENCED UNDER section 139(2) (b) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Appellant: ML Ready Mix Concrete Inc.

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Terms and conditions imposed under an Amended Environmental Compliance Approval to operate a concrete batching facility

Reference No.: 3356-94GS58

Property Address/Description: 29 Judson Street

Municipality: City of Toronto

ERT Case No.: 14-061

ERT Case Name: ML Ready Mix Concrete Inc. v. Ontario (Environment and Climate Change)

Heard: April 2, 7-9, 14-15, and 24, and May 6, 2015 in Toronto, Ontario.

APPEARANCES:

Parties ML Ready Mix Concrete Inc. Director, Ministry of the Environment and Climate Change

Counsel John Alati and Matthew Di Vona Isabelle O'Connor and Natalie MacDonnell (articling student)

Participant City of Toronto Cory Lynch

Presenters David Cortellessa, Joanne Cortellessa, Daniel Irwin, JoAnne McKeown, Sam Piscione Self-represented

DECISION DELIVERED BY HUGH S. WILKINS

REASONS

Background

1ML Ready Mix Concrete Inc. (the "Appellant") operates a concrete batching facility located at 29 Judson Street in the City of Toronto (the "Site"). At the Site, the Appellant receives and stores ingredients used in making concrete. It then loads the ingredients onsite into ready-mix delivery trucks, which deliver the product to customers. The Site is adjacent to a residential community.

2At the Site, the Appellant receives and dispatches aggregate trucks, cement powder trucks and ready-mix trucks. The Appellant receives up to one cement powder truck every hour, which unloads bulk cement powder through a pump embedded on the truck. It can take an hour to unload. The Appellant also receives aggregates at a rate of up to three aggregate trucks per hour and operates a front-end loader to load sand and gravel into feed bins. With these ingredients, it receives, loads and dispatches ready-mix trucks at a rate of up to 12 trucks per hour.

3There are various sources of noise at the Site arising from these operations. These include the unloading of cement powder and aggregate, delivery of ingredients to the ready-mix trucks, pollution control equipment, pumps, fans, and pressure relief blow-offs. Particularly significant noise sources at the Site are the cement powder trucks (moving, idling and unloading), the aggregate trucks (moving, idling and unloading), the ready-mix trucks (moving, idling, loading and revving), and the front-end loader. Other noise sources include truck tailgate slamming and the sound of mallets striking cement powder trucks.

4The Ministry of the Environment and Climate Change ("MOECC") has published noise guidelines, which are applicable to the Site. Noise Pollution Control Guideline No. 205 – Sound Level Limits for Stationary Sources in Class 1 and 2 Areas (Urban) ("NPC-205") was the relevant guideline until 2013. Environmental Noise Guideline No. 300 – Stationary and Transportation Sources – Approval and Planning, dated August 2013 ("NPC-300"), replaced NPC-205.

5The Appellant has had several acoustic assessment reports ("AARs") prepared by its noise consultants, SS Wilson Associates, in support of its environmental compliance applications and appeals that it has filed. These include an AAR, dated September 28, 2012, which was prepared in support of an environmental compliance approval application that was later withdrawn (the "September 2012 AAR"), an AAR, dated July 3, 2013, to support an environmental compliance approval application filed in 2013 (the July 2013 AAR"), and an AAR, dated November 29, 2013, which was prepared to address the MOECC's revised noise guidelines found in NPC-300 (the "November 2013 AAR"). The Appellant also had its consultants prepare an AAR, dated February 26, 2015, which addresses whether the Site can operate on a 24-hour basis in compliance with NPC-300 (the "February 2015 AAR"). The Appellant has not applied for 24-hour operations at the Site.

6On September 19, 2013, Ian Greason, Director, MOECC, issued Environmental Compliance Approval No. 3356-94GS58 (the "ECA") to the Appellant. It allows for operations at the Site. It includes terms regarding the number of trucks permitted (as described above), hours of operation, and other restrictions that limit the noise and dust emitted from the Site.

7On October 4, 2013, the Appellant appealed the ECA to the Environmental Review Tribunal (the "Tribunal"), specifically regarding its restrictions on hours of operation, provisions on public complaint procedures, and requirements on the size and type of a noise mitigation barrier required at the Site (see: Tribunal Case No. 13-116).

8After negotiations with the Director, the Appellant settled that appeal. On January 30, 2014, Minutes of Settlement were executed between the parties (the "Minutes of Settlement") and on June 20, 2014, the Tribunal issued a decision approving its terms (the "Tribunal's June 2014 decision") (see: ML Ready Mix Concrete Inc. v. Director, Ministry of the Environment, [2014] O.E.R.T.D. No. 36).

9On August 8, 2014, the Director issued an Amended ECA (the "Amended ECA"), which alters the ECA based on the terms of the Minutes of Settlement. It also includes other changes that the Director deemed necessary addressing the time intervals at which trucks may visit the Site, the return of trucks at the end of the day, and record keeping at the Site.

10Most of the changes relate to Condition 1 of the ECA. Condition 1(4) of the original ECA stated (emphasis added):

1. The Company shall:

(4) only receive deliveries at the Facility during the Hours of Operation and shall limit such deliveries in accordance with the following:

(a) a maximum of twelve (12) ready-mix trucks per hour;

(b) a maximum of three (3) aggregate trucks per hour;

(c) a maximum of one (1) cement powder tanker truck per hour;

11The amended Condition 1(4) states (emphasis added):

2. The Company shall:

(4) ensure that any and all Trucks arrive at and depart from the Facility only during the Hours of Operation and shall limit such arrivals and departures in accordance with the following:

(a) a maximum of twelve (12) ready-mix trucks per 60 minute period;

(b) a maximum of three (3) aggregate trucks per 60 minute period;

(c) a maximum of one (1) cement powder tanker truck per 60 minute period;

(7) ensure, at all times outside the Hours of Operation, that the Facility does not generate any emissions of a contaminant, including noise.

12The pertinent changes to Condition 1(4) were to the term "deliveries", which was replaced with "arrive at and depart from" and "arrivals and departures", and "per hour", which was changed to "60 minute period".

13The Director also amended Condition 7(2) (c) of the ECA. The original ECA read:

7. The Company shall retain, for a minimum of two (2) years from the date of their creation, all records and information related to or resulting from this Approval, and shall make these records available for review by Ministry staff upon request. The Company shall retain:

(2) all records on the daily operation of the Equipment, including:

(a) daily production rate;

(b) daily start-up and shut-down times of the Equipment.

14The Amended ECA reads (emphasis added):

7. The Company shall retain, for a minimum of two (2) years from the date of their creation, all records and information related to or resulting from this Approval, and shall make these records available for review by Ministry staff upon request. The Company shall retain:

(2) all records on the daily operation of the Equipment, including:

(a) daily production rate;

(b) daily start-up and shut-down times of the Equipment;

(c) a record of the arrival and departure time of each Truck entering or leaving the Facility, including a description of the type of Truck (ready-mix truck, aggregate truck or cement powder tanker truck).

15In addition, the Director inserted a new Reason 1 in the ECA to read:

1. Condition 1 is included to provide the minimum performance requirement considered necessary to prevent an adverse effect resulting from operation of the Facility and to ensure that the Facility's Hours of Operation are not extended beyond the stated hours.

16The Appellant found that these changes have significant implications for its operations. On August 22, 2014, the Appellant filed with the Tribunal a notice of appeal of the Amended ECA. This is the appeal that is the subject matter of this Decision.

17On November 21, 2014, the Tribunal held a preliminary hearing at which it granted presenter status to David Cortellessa, Joanne Cortellessa, Daniel Irwin, JoAnne McKeown and Sam Piscione (the "Presenters") and participant status to the City of Toronto ("City"). Further background is set out in the Tribunal's Order, dated January 13, 2015.

18On April 2, 2015, the Tribunal orally dismissed a motion brought by the Director to strike a ground in the notice of appeal and for the exclusion of certain evidence. Reasons for that order are set out below.

19The hearing of the motion was held on April 2, 2015 in Toronto and the appeal was heard on April 7 to 9, 14 to 15 and 24, and May 6, 2015 in Toronto.

Issues

20There are two issues to be addressed by the Tribunal:

1. whether Ground 3 of the Notice of Appeal regarding the number of aggregate trucks that may operate at the Site should be struck and whether the hearing should be restricted to exclude any evidence relating to 24 hour operation of the Site; and

2. whether the Tribunal should confirm, alter or revoke Conditions 1(4), 1(4) (b), and 7(2) (c) and/or Reason 1 of the Amended ECA.

21The first issue was addressed during the motion hearing. The second issue was the focus of the hearing of the appeal. It included the following sub-issues:

1. Intervals between trucks: Condition 1(4) (a) – (c): The focus of this sub-issue is whether the term "per hour" in the ECA should be interpreted as meaning per "static clock hour" (which starts at the top of each hour) or as meaning per "rolling hour" (which commences with the arrival of each truck) and the implications that such interpretations have on the number of trucks that can visit the Site each day. The Appellant states that until now, under the ECA, its operations have been based on a static clock hour interpretation and argues that using a rolling hour would permit fewer trucks each day than a static clock hour interpretation permits;

2. Returning trucks: Condition 1(4): This sub-issue concerns whether the Appellant should be permitted to return trucks to the Site after its hours of operation to rinse and park for the night and whether the ECA regulates such returns;

3. Number of aggregate trucks: Condition 1(4) (b): The question here is whether the amendments to Condition 1(4) changing "per hour" to "per 60 minute period" will reduce the number of aggregate trucks permitted at the Site and whether that number should, therefore, be increased; and,

4. Record keeping: Condition 7(2) (c): The fourth sub-issue is whether the Appellant should be required to keep records of each arrival and departure of trucks at the Site.

Relevant Legislation and Rules

22Environmental Protection Act

3. (1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

4. (1) No person shall, except under and in accordance with an environmental compliance approval,

(a) use, operate, construct, alter, extend or replace any plant, structure, equipment, apparatus, mechanism or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water;

(3) Subsection (1) does not apply to,

(f) any motor or motor vehicle that is subject to Part III.

20.7 (1) In exercising any of his or her powers under this Part, whether on his or her own initiative or on application, the Director may exercise the power if he or she considers it to be necessary for the purposes of,

(a) this Act, if the power is exercised in respect of an activity for which an environmental compliance approval is required under section 9 or 27;

20.13 The Director may, on his or her own initiative,

(a) alter or revoke terms and conditions of an environmental compliance approval after it has been issued;

(b) impose new terms and conditions in an environmental compliance approval; or

(c) suspend or revoke all or part of an environmental compliance approval.

139 (2) When the Director,

(d) alters the terms and conditions in an environmental compliance approval, renewable energy approval, certificate of property use, licence or permit or approval after it is issued; or

(e) imposes new terms and conditions in an environmental compliance approval, renewable energy approval or certificate of property use,

the Director shall serve notice together with written reasons therefor upon the applicant or the person to whom the licence, permit, approval, environmental compliance approval, renewable energy approval or certificate of property use is issued, as the case may be, and the applicant or person may, by written notice served upon the Director and the Tribunal within 15 days after the service of the notice, require a hearing by the Tribunal.

(3) Subsections (1) and (2) do not apply with respect to,

(b) terms and conditions in an environmental compliance approval as a result of an application under Part II.1, if the terms and conditions are substantially the same as those contained in an approval that was previously issued and is still in effect at the time that the decision is made in respect of the application.

145.2 (1) Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

Statutory Powers Procedure Act

15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

(3) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.

Tribunal's Rules of Practice

111. A Party bringing a motion to dismiss a proceeding shall specify the basis for the motion, which may include that:

(b) the proceeding relates to matters that are outside the jurisdiction of the Tribunal;

Issue 1: Whether Ground 3 of the notice of appeal regarding the number of aggregate trucks that may operate at the Site should be struck and whether the scope of the hearing should be restricted to exclude any evidence relating to 24 hour operation of the Site

Discussion, Analysis and Findings

Submissions of the Director

23The Director brings a motion to strike pursuant to Rule 111 of the Tribunal's Rules of Practice on the grounds that the Tribunal lacks jurisdiction to address one of the grounds in the notice of appeal and for an order that certain evidence be excluded from the hearing.

24The Director argues that Ground 3 of the Appellant's notice of appeal lies outside the Tribunal's jurisdiction to adjudicate. Ground 3 of the notice of appeal alleges:

Condition 1(4) (b) does not properly reflect the updated Acoustic Assessment Report, prepared by SS Wilson Associates, dated November 29, 2013 (the "AAR"). The AAR provides the technical basis to allow five (5) aggregate trucks per hour, as opposed to three (3).

25The Director argues that s. 139 of the EPA constrains the Tribunal's jurisdiction to the subject matter of the Director's immediate decision and requires that s. 139 appeals be brought within 15 days of that decision. The Director submits that the Appellant did not appeal Condition 1(4) (b) regarding the number of aggregate trucks within the statutory timeframe when the condition first appeared in the original ECA in 2013 and argues that the Tribunal therefore does not have jurisdiction to adjudicate this ground now. The Director submits that as the ECA's provisions on the number of trucks permitted were not amended, evidence relating to this issue should not be admitted at the hearing of the appeal. The Director submits that such an amendment was never requested by the Appellant and has never been considered by the Director. The Director also argues that such an amendment has not been posted on the public registry under the Environmental Bill of Rights, 1993 (the "Environmental Registry") and there has never been public consultation on such a change.

26The Director argues that s. 139 has been consistently applied by the Tribunal in the manner proposed by the Director (see: Haldimand Against Landfill Transfers v. Ontario (Ministry of Environment), [2005] O.E.R.T.D. No. 29 ("Haldimand Against Landfill Transfers"); Kagawong Power Inc. v. Director, Ministry of the Environment, [2007] CarswellOnt 9989 (Ont. E.R.T.) ("Kagawong Power"); and Hughes v. Director, Ministry of the Environment, [2012] O.E.R.T.D. No. 43 ("Hughes"). He also points to s. 139(3) (b) of the EPA, which states the section does not apply where ECA terms and conditions are "substantially the same as those contained in an approval that was previously issued and is still in effect".

27The Director also seeks an order for direction that the scope of the hearing be restricted to exclude evidence relating to 24 hour operation of the Site, including the February 2015 AAR. The Director submits that data and analysis on 24 hour operation of the Site is not relevant to the issues under appeal. He submits that the AAR was neither submitted in support of an application to amend the ECA, nor was the AAR requested by the Director. The Director argues that this evidence should not be admitted at the hearing.

Submissions of the Appellant

28The Appellant submits that the Director's amendments will directly impact the number of trucks that can operate at the Site and are therefore part of the amended portion of the ECA. It argues that changes to one part of Condition 1(4) of the ECA can affect the entire condition and that when amending the condition, the Director had to have turned his mind to the issue of truck numbers. It argues that the resultant change in truck numbers is a product of the other changes made in the amendment and is a substantial change. The Appellant submits that it has been operating the Site based on the understanding that "per hour" means per static clock hour. Using this interpretation, it argues that each time period for calculating the number of trucks arriving at the Site commences at the top of the hour and ends at the top of the next hour. This allows some clustering of trucks, which if calculated on a rolling hour basis, would exceed the truck limits set out in the Amended ECA. The Appellant submits that changing the ECA from a static clock hour requirement to a rolling hour requirement reduces the number of trucks that can arrive and depart from the Site. It argues that calculating the number of trucks in this manner would also be challenging as it would be difficult to continually calculate the one hour time period every time a truck arrives at the Site.

29The Appellant submits that based on a plain reading of s. 139(3) (b), the amended terms and conditions are not substantially the same as those in the original ECA, and the issue is within the Tribunal's jurisdiction to adjudicate. The Appellant further submits that the notice of appeal was posted on the Environmental Registry and the public has therefore received notice of the issue at stake.

30Regarding the Director's request for the exclusion of evidence, the Appellant argues that the February 2015 AAR is relevant to the issues before the Tribunal. It submits that it is not relying on the February 2015 AAR to argue that it should be allowed to operate 24 hours per day, but to show noise emissions at various times and the Appellant's adherence to the NPC guidelines. It argues that the Tribunal must ensure it has the full evidence before it. It submits that relevance can be argued at the hearing and that the weight and admissibility to be given to evidence should be determined at that time. The Appellant argues that this evidence demonstrates that if the Appellant can operate without violating the NPC 24 hours per day, then returning trucks after hours will not contravene the guidelines.

Findings

31The Director amended the language in Condition 1(4) (b) from "a maximum of three (3) aggregate trucks per hour" to "a maximum of three (3) aggregate trucks per 60 minute period" (emphasis added). Depending on the evidence at the main hearing on how the term "per hour" has been applied and on the impacts of the Amended ECA's change in language from "per hour" to "per 60 minute period", the Tribunal finds that the amendment could result in a change in the actual number of aggregate trucks that can operate at the Site. The Director was aware at the time the Amended ECA was issued that the Appellant was operating the Site based on an understanding that "per hour" meant per static clock hour and not per 60 minute period. The Director must have considered, when amending the ECA, the consequences of the amendments on the number of trucks that actually operate at the Site. The Director did not provide evidence at the motion showing on a balance of probabilities that truck numbers would not be affected. To maintain the current level of operations, it could be necessary to increase the number of permitted aggregate trucks to five trucks per 60 minute period. Furthermore, for the Tribunal to find that the changes in the Amended ECA will have no impact on the number of aggregate trucks that can operate at the Site, would require the Tribunal to make a determination regarding this issue at this early stage in the proceeding, without having the benefit of receiving full evidence at the main hearing. More specifically, this is evidence respecting the issue as to whether "per hour" and "per 60 minute period" have the same meaning and whether the implications of these changes are minimal.

32As stated in Hughes, at page 13, the "statutory scheme … restricts rights of appeal and Tribunal jurisdiction to the substance of the director's immediate decision." As noted above, the amendments in question could affect truck numbers. The present situation is not one in which the Appellant has appealed a condition of an ECA that was not considered and amended by the Director. In this regard, the present situation is distinguishable from Haldimand Against Landfill Transfers, Kagawong Power and Hughes where grounds were struck which clearly did not flow from the immediate decision of the Director. Given the above circumstances, amended Condition 1(4) (b) is not substantially the same as the text in the original ECA.

33For these reasons, the Tribunal finds the Director has not demonstrated that a determination of the number of aggregate trucks to be permitted at the Site is outside the jurisdiction of the Tribunal and concludes that Ground 3 of the notice of appeal should not be struck.

34In regard to the Director's request to exclude evidence, the Tribunal finds that the February 2015 AAR may be relevant to the issues under appeal. Under s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), the Tribunal may admit as evidence any document or other thing that is relevant to the subject-matter of the proceeding. Given the linkages demonstrated by the Appellant between the February 2015 AAR and the issues under appeal, namely the return of trucks after the Site's hours of operation, the Tribunal finds that this evidence may be relevant and should not be excluded before a full hearing. The Tribunal, therefore, denies the Director's request and the motion is dismissed.

Issue 2: Whether the Tribunal should confirm, alter or revoke Conditions 1(4), 1(4) (b), and 7(2) (c) and/or Reason 1 of the Amended ECA.

Evidence of the Director

Ian Greason

35Mr. Greason is the MOECC Director who amended the ECA. He was qualified by the Tribunal to give opinion evidence on "acoustic assessments, MOECC guidelines, industry practice and MOECC environmental approvals". He presented both fact and opinion evidence.

36Mr. Greason provided an overview of the ECA decision-making process. He stated that ECA applications under s. 9 of the EPA must be supported by studies and reports that demonstrate that a proposed project meets statutory, regulatory and MOECC policy requirements. He said the Director may include terms and conditions addressing the operation, performance and maintenance of equipment, monitoring and reporting on emissions levels and minimum performance requirements.

37Mr. Greason stated that the evaluation of noise assessments is based on the "predictable worst case noise impact" of stationary sources of noise at a point of reception. He said the "predictable worst case noise impact" is the noise impact during the hour when noise emissions have "the greatest impact at a point of reception". Based on definitions in NPC-300, he said a "stationary source" is "a source of sound or combination of sources of sound that are included and normally operated within the property lines of a facility" and includes "on-site movement of trucks".

Intervals between trucks: Condition 1(4) (a)-(c)

38Mr. Greason addressed the Appellant's concerns regarding the timing and distribution of truck arrivals and departures at the Site. He said the amendment to Condition 1(4) changing "per hour" to "per 60 minute period" aims to limit noise impacts at local points of reception by restricting truck movements. He stated that these changes address the Appellant's interpretation of the ECA, which has been that "per hour" means "per static clock hour".

39He said his amendments to the ECA were intended to clarify that each one-hour period consists of sixty consecutive minutes and should not be applied on the basis of defined one-hour periods on a clock commencing and ending on the hour. He stated that the ECA is intended to apply over any given 60 minute period to prevent the bunching of noise emissions over a short period. He said this ensures that noise emissions are spread out over the one-hour period.

40Mr. Greason said the emissions of noise from stationary sources are evaluated based on their equivalent sound levels over a one-hour period. He stated that this aligns with the NPCs, which he said use one-hour equivalent sound level ("L_eq") measurements based on a rolling hour.

Returning trucks: Condition 1(4)

41Mr. Greason also addressed the issue of returning, parking and rinsing of ready-mix trucks at the Site after its hours of operation. He stated that given the Site's proximity to residential homes, its hours of operation, as set out in the original ECA, are important to neighbours and others concerned about noise from the Site. He said the MOECC's Toronto District Office requested, and he agreed, that the ECA only permit operations during the time periods allowed by City of Toronto Municipal Code Chapter 591 (Noise) (the "City's noise by-law"), which are Monday to Friday from 7 a.m. to 7 p.m. and Saturdays from 9 a.m. to 7 p.m. He stated that outside the Site's hours of operation there must be no truck traffic or other operations. He said the MOECC would have re-considered this position if the Appellant received a by-law exemption from the City, but it did not.

42Mr. Greason stated that the MOECC did not assess noise emissions outside the hours of operation and that the public interest in this case favours restrictions that are consistent with the City's noise by-law. Mr. Greason stated that Condition 1(4) was amended, in part, to clarify that there must be no operations at the Site outside its operating hours, including the return of trucks.

43Mr. Greason stated that the term "deliveries" was replaced in the ECA with "arrive" and "depart" to clarify that "deliveries" includes the return of empty trucks to the Site. He stated that empty trucks, like full ones, make noise when operating at a site and therefore must be subject to the ECA's restrictions. He stated that to interpret "deliveries" as being restricted to the delivery of aggregate would mean that ready-mix trucks, which do not deliver materials at the Site, would not be permitted under the ECA at all.

44He stated that the NPC is not the only consideration that is taken into account when issuing an environmental compliance approval (such as the original ECA or the Amended ECA) and that advice from the MOECC District Office, public comments posted on the Environmental Registry, and concerns raised by local municipalities and neighbouring industrial and other facilities must be taken in to account. He said the hours of operation provisions under the ECA constitute a compromise that allows the Appellant to operate and coexist with the adjacent residential neighbours. He stated that comparisons between this and other ECAs show similar restrictions. Mr. Greason stated that in determining the public interest, the Director balances opportunities for industry to carry out business with the need to limit environmental impacts and impacts on residents. He said determining the public interest is always case- and site-specific and that there is no objective standard that is applied.

45Under cross-examination, he acknowledged that with the issuance of the ECA, an exemption from the City's noise by-law is no longer possible as the ECA supercedes municipal by-laws. He said the ECA does not to need to mirror municipal by-law requirements, but the MOECC does consider comments from municipalities and others. He stated that he did not review the City's noise by-law before approving the ECA.

Number of aggregate trucks: Condition 1(4) (b)

46Mr. Greason also addressed the number of aggregate trucks allowed at the Site. He said the original ECA's Condition 1(4) (b) restricted the number of aggregate trucks to three trucks per hour and that the Amended ECA did not change this. He stated that the Appellant did not appeal this condition, the Minutes of Settlement and the Tribunal's June 2014 decision do not address it, and the MOECC has not received an application to amend it. He stated that this issue appeared "out of the blue" in the Appellant's November 2013 AAR and a proposed increase in aggregate truck numbers has never been reviewed or assessed by the MOECC. He stated that if the Appellant wishes to amend the ECA to allow five trucks per hour, then it needs to submit an ECA amendment application to the MOECC, have the application posted on the Environmental Registry, and request the MOECC to review and assess it properly.

Record keeping: Condition 7(2) (c)

47Mr. Greason stated that the MOECC has received "many complaints" from neighbours stating that the Appellant is exceeding the ECA's restrictions on the number of trucks arriving and departing from the Site. He stated that it is already standard practice at the Site for drivers to report to the Site office. He said the ECA was amended to formally require the recording of this information, stating that the information will facilitate compliance with the ECA's other conditions.

Pierre Godbout

48Mr. Godbout is the MOECC noise review engineer who assessed the Appellant's ECA applications and AARs. The Tribunal qualified Mr. Godbout as "an expert to provide opinion evidence relating to acoustic assessment reports, the review of acoustic assessments, industry practice and the MOECC's noise guidelines". He provided both fact and opinion evidence.

49Mr. Godbout said he assessed whether the proposed operations described in the September 2012 and July 2013 AARs meet the requirements in the NPC guidelines. He said his assessment focused on: sound levels at the Site; whether proper sound level limits were established at each point of reception; and whether the Appellant's proposed noise limit measures would properly mitigate sound levels in accordance with NPC requirements. Mr. Godbout stated that NPC-205 and NPC-300 refer to "all the activities taking place within the property boundary of a facility" and that noises made by trucks at the Site are considered stationary sources.

50Mr. Godbout said the NPCs state that the "predictable worst case" should be considered in AARs. He said this entails that they determine "the largest noise excess produced by the source over the applicable limit". He stated that for the Site, the predictable worst-case scenario would occur in the hour with the most trucks at the Site.

Intervals between trucks: Condition 1(4) (a)-(c)

51Regarding the amendment of the ECA's term "per hour" to "per 60 minute period", Mr. Godbout said the change was to clarify that the Amended ECA only allows a certain number of trucks at the Site over any 60 minute time period during the Site's hours of operation. He said the ECA's conditions setting out the maximum number of trucks allowed at the Site were determined based on the AARs using worst-case scenario conditions. He stated that the Director's amendments to the ECA were to ensure that its limit on the number of trucks allowed was not exceeded, that the number of trucks was spread out evenly, and that sufficient noise controls were put in place. Mr. Godbout said the use of a rigid one-hour period based on a static clock hour, as proposed by the Appellant, would not align with the methodology used in the predictable worst-case impact assessment and could lead to non-compliance with the ECA's truck limits. He stated that the Appellant's approach would permit, for example, the situation where 12 ready-mix trucks could arrive at the Site between 8:30 a.m. and 9 a.m. (during the 8 a.m. clock hour), and then 12 more could arrive between 9 a.m. and 9:30 a.m. (the 9 a.m. clock hour), resulting in 24 ready-mix trucks arriving at the Site during a 60 minute period.

52Under cross-examination, Mr. Godbout agreed that the NPCs and AARs do not specifically refer to "60 minute periods" and that, when doing its audit of the Site as required under the ECA, the auditor ("Valcoustics") did not refer to "60 minute periods" (see: Valcoustics Canada Ltd., Acoustics Audit Report, dated May 29, 2014). He agreed that when the Appellant's AARs were assessed, they were based on an hourly L_eq. He also said that spreading truck volumes is not an objective set out in the ECA or NPC and noted that he has never seen the use of a rolling 60 minute period in other ECAs.

Returning trucks: Condition 1(4)

53Mr. Godbout stated that there have been neighbourhood complaints regarding noise emissions from the Site. He stated that the original ECA used the term "deliveries" when addressing the arrival, operations and departure of trucks and that it was never his intent to allow the operation of any ready-mix trucks at the Site after operating hours. He stated that operations after 7 p.m. were not assessed, including the return of empty ready-mix trucks, and such operations would not comply with the City's noise by-law.

54Under cross-examination, Mr. Godbout stated that noise after 7 p.m. would not necessarily exceed the NPC-300 guidelines, but noted that such emissions are not permitted in any event under the ECA. He stated that the term "deliveries" was used in the ECA to include a truck's arrival, activity on the site, and its departure; but he noted that this term is not defined in the ECA. He said he did not review the noise impacts of trucks returning after the Site's hours of operation because they were not approved under the ECA, although he noted that a returning truck may not be as noisy as the loading of a ready-mix truck.

Number of aggregate trucks: Condition 1(4) (b)

55Mr. Godbout stated that the Appellant has never requested an amendment to the ECA to allow five aggregate trucks per hour and the MOECC has never done an assessment for such a proposal. Mr. Godbout stated that the number of trucks permitted was not appealed within the applicable appeal period after the ECA was originally issued.

Kevin Webster

56Mr. Webster is the District Manager at the MOECC's Toronto District Office. He gave fact evidence.

57Mr. Webster stated that the Appellant operated for several years without approval prior to the ECA's issuance and that there have been many noise complaints from the public regarding the Appellant's operations. He stated that, since the ECA's issuance, the Appellant has pleaded guilty several times to offences under the Provincial Offences Act, R.S.O. 1990, c. P.33, for non-compliance with the ECA's conditions.

58Mr. Webster described meetings and exchanges with the Appellant addressing the ECA's conditions, including those touching on public complaint procedures, hours of operation, the number of trucks permitted, and the proper interpretation of "per hour". Regarding the term "trucks", he stated that it is not defined in the ECA and is not included in its definition of "equipment"; however, he said trucks are a source of noise that is governed by the ECA.

Intervals between trucks: Condition 1(4) (a) – (c)

59Mr. Webster said the Appellant's interpretation of Condition 1(4) would allow it to double the number of trucks allowed in any given 60 minute period, as explained in the above described example. He said the amendment to "per 60 minute period" is aimed to clarify that "one hour" means "60 minutes".

60Mr. Webster stated that his role is to ensure ECA compliance and not to map out the business decisions and operations that would need to be taken to implement the ECA's provisions. He stated that the ECA's language needs to be enforceable and that the amendments to the ECA facilitate this.

Returning trucks: Condition 1(4)

61Mr. Webster stated that the ECA's restrictions on the hours of operation were intended to ensure conformity with the City's noise by-law. He said the return of ready-mix trucks is part of the operations at the Site and the return of trucks after hours is not permitted. He stated that the MOECC's position is that there is to be no noise from the Site after the hours of operation and that trucks returning to the Site would create noise.

Evidence of the Approval Holder

Rene Silva

62Mr. Silva is the Operations Manager and Technical Controller at the Appellant. He gave fact evidence.

Intervals between trucks: Condition 1(4) (a) – (c)

63Mr. Silva stated that the ECA's rolling restriction on the number of trucks in any given 60 minute period is "untenable and impractical to implement". He stated that close to half the trucks that enter the Site are not owned by the Appellant and it would be impossible to communicate and schedule dispatching in the manner proposed in the Amended ECA. He said that even coordinating the Appellant's own trucks using a rolling hour would be challenging. He said the result would be that trucks would need to park outside the Site or circle around the neighbourhood until their delivery time came, both of which are activities that are not permitted under the City's by-laws. He stated that, in any event, the Site cannot physically accommodate the clustering of trucks as suggested by the Director.

Returning trucks: Condition 1(4)

64Regarding the return of trucks after hours, Mr. Silva stated that this Condition will cause trucks to be stranded for the night if they are delayed in traffic or encounter other difficulties that postpone their return. He said that drivers returning trucks after 7 p.m. will not make considerable noise apart from parking and rinsing their trucks and the return of trucks after 7 p.m. would only be "an occasional circumstance".

Record keeping: Condition 7(2) (c)

65Mr. Silva stated that Condition 7(2) (c) is "overly onerous" and "impractical" and is not a common requirement for facilities such the Appellant's.

Hazem Gidamy and Anthony Martella

66Messrs. Gidamy and Martella gave opinion evidence as an expert panel. They assisted and advised the Appellant in the preparation of its environmental compliance approval applications. Mr. Gidamy was qualified by the Tribunal to give opinion evidence as "a professional engineer with expertise on the production of acoustic assessment reports, the interpretation of MOECC noise guidelines, and acoustical issues". Mr. Martella was qualified by the Tribunal to give opinion evidence as "a professional engineer providing opinion evidence on acoustic analysis specializing in the assessment and investigation of noise impacts in the environment".

Intervals between trucks: Condition 1(4) (a) – (c)

67Mr. Gidamy testified that the MOECC has been inconsistent with respect to its consideration of the time period over which noise emissions may take place. He said that neither NPC-205 nor NPC-300 provide any basis for the rolling 60 minute periods required by the Director in the Amended ECA and that the Director's interpretation of "hour" is novel. He said traffic volume data from municipalities is calculated using static clock hours and the MOECC's sound level criteria, which rely on this data, must also be based on these rigid time periods. Mr. Gidamy reviewed provisions in NPC-300 that require noise assessment on an hourly basis, including the assessment of background sound levels using L_eq, and predictable worst-case noise impacts, and opined that they are calculated using a static clock hour. He said that municipal noise by-laws also assess noise on hourly bases using a static clock hour.

68Mr. Gidamy reviewed ECAs for other sites that do not have the same time restrictions as the Appellant's ECA. He stated that he has never before seen an ECA that refers to "per 60 minutes" instead of "per hour" and that NPC-300 does not refer to 60 minute periods. He added that he has never before prepared an AAR that uses a rolling 60 minute period and that the preparation of such an assessment would be difficult. He stated that it would require the undertaking of 60 assessments for each hour and would require the measurement of ambient noise on a minute-by-minute basis. He said general practice is to make these assessments on an hour-by-hour basis and that this is contemplated in NPC-300. Mr. Gidamy stated that, in any event, if more trucks arrived using a fixed clock hour than a rolling hour time measurement, the difference in noise levels would be minimal. In this regard, Mr. Gidamy explained that even if use of a static clock hour led to a doubling of the number of trucks at the Site over any given 60 minute period, this would only result in a 3 decibel noise increase, which, he stated, is insignificant.

Returning Trucks: Condition 1(4)

69Mr. Gidamy and Mr. Martella both stated that although the Appellant is not seeking to operate 24 hours per day throughout the week, it could do so and still comply with the MOECC's sound requirements in NPC-300, provided that appropriate noise control measures are undertaken. Mr. Gidamy stated that NPC-300 does not impose time restrictions on operating hours and that, based on the NPC guidelines, the Site could operate after 7 p.m.

70Mr. Gidamy stated that NPC-300 places no restrictions on trucks returning to a site after 7 p.m. and that the Director has no basis upon which to impose such a restriction. He said that although there may be a lower ambient sound level in the area after 7 p.m., noise from trucks returning to the Site after 7 p.m. would not exceed the limits set by NPC-300.

71Mr. Gidamy stated that NPC-300 does not state that ECAs or AARs must comply with municipal noise by-laws. Instead, it provides that municipal by-laws should be consistent with NPC-300. He stated that MOECC staff relied on the opinion of City staff that the ECA must restrict the Appellant's hours of operation. However, Mr. Gidamy expressed his opinion that the municipal by-law does not apply in these circumstances. He said the by-law only applies to motor vehicles used as construction equipment and only "if the sound is clearly audible", which he stated is not the case for the return of trucks after 7 p.m. at the Site. He said the noise from such activities is not generally higher than ambient noise and is, therefore, not "clearly audible". In any event, he stated that municipal noise by-laws are superceded by ECAs and should be consistent with the NPC.

72Mr. Martella said the Appellant's use of the adjacent property to the west of the Site for parking (a property that does not have the same sound mitigation barriers as the Site) does not produce a predictable worst-case noise impact and does not need to be modelled. He added that Valcoustics, in its audit, did not find any adverse impacts arising from the use of that property.

73Under cross-examination, Mr. Gidamy acknowledged that the rinsing and parking of trucks was not fully assessed in the AARs, but he opined that the noise emissions from these activities would be less than those that were assessed. He said these activities do not require an ECA because they are insignificant sources of noise. Mr. Martella stated that truck washing and parking at the Site after 7 p.m. would not generate noise emissions which would exceed the noise limits; however, he acknowledged that the noise emissions caused by parking on the lands adjacent to the Site to the west, were not addressed in the Appellant's AARs.

Number of aggregate trucks: Condition 1(4) (b)

74Mr. Martella described truck movements and timing at the Site. He stated that due to capacity limitations, it would be impossible to have more than five aggregate trucks operating during a one-hour period and that he has never seen more than 11 ready-mix trucks visit the Site over a one-hour period. He stated that if the Appellant was not at the Site, noise levels at the receptors would be higher due to the absence of the Appellant's noise barriers blocking local rail and traffic noise.

75He stated that based on his latest modelling, the Site would be in compliance with NPC-300 sound level limits with up to five aggregate truck deliveries per hour during the daytime on weekdays and two aggregate truck deliveries per hour during the daytime on Saturdays.

Record keeping: Condition 7(2) (c)

76Mr. Gidamy stated that requiring log updates on a minute-by-minute basis is unprecedented and does little for the investigation of complaints.

Evidence of the Presenters

David Cortellessa

77Mr. Cortellessa lives close to the Site. He said noise from the Site has lessened his quality of life and has adversely impacted the local community. He said noise from the Site has caused "a very stressful situation". He testified that several residential homes are located close to the Site and residents should not be burdened by the Site's noise. He stated that over 300 trucks may visit the Site in one day and he provided photographs of the Site and trucks. He said the number of trucks, the Site's hours of operation, and truck activities must be reduced.

Joanne Cortellessa

78Ms. Cortellessa stated that an "hour" should be interpreted as a "60 minute period" to avoid an increased number of trucks. She said residents should be entitled to a reprieve from the Appellant's noise after 7 p.m. each day. She said that presently trucks arrive as late as midnight and that the Appellant's gates are never closed. Regarding the number of trucks, she stated that they should be decreased. She expressed concern regarding disagreements between the Appellant and the public regarding the timing and extent of noise emissions. Ms. Cortellessa stated that accurate record keeping is important for monitoring and should be an imperative.

JoAnne McKeown

79Ms. McKeown is a resident who lives close to the Site. She said there is no acoustic barrier between the Site and her home and that the Appellant's operations are loud. She said trucks often arrive and depart the Site outside of the Appellant's operating hours. She said she does not ever want to hear noise after 7 p.m. and expressed concerns that the Appellant's definition of "an hour" may lead to a doubling of the number of trucks arriving and departing from the Site over a 60 minute period. She said record-keeping obligations should be required as the Appellant at times denies that events happened and she said the Appellant should treat the public in a respectful, reasonable and courteous manner.

Sam Piscione

80Mr. Piscione stated that members of the Etobicoke York Community Council have expressed concerns regarding the Appellant's operations and that the Council held a special session to discuss such concerns on May 13, 2014. He played excerpts of an audio recording of the Council special session. Issues that were raised concerned zoning, public health, transportation, enforcement and other matters.

Daniel Irwin

81Mr. Irwin is a resident who lives close to the Site. He showed a short video of truck traffic in the area. He stated that the truck traffic and noise depicted in the video occurs daily. He added that the Site is too small to handle the number of trucks arriving and departing from it. Mr. Irwin expressed concerns regarding the Appellant's definition of "an hour", noise emitted after the Appellant's hours of operation, and the need for better record keeping. He said trucks regularly arrive at the Site after 7 p.m. and make noise. He said trucks often park on land adjacent to the Site surrounding which there are no noise barriers and suggested that operations in this adjacent area are not approved under the ECA. He advised the Tribunal that many members of the community are concerned and he questioned the adequacy of enforcement measures, noting that video from a surveillance camera outside the Site should be used for enforcement purposes.

Submissions of the Director

82The Director argues that s. 145.2(1) of the Environmental Protection Act ("EPA") sets out the Tribunal's powers on an appeal of this type, providing that the hearing is de novo and that at the conclusion of a hearing the Tribunal may confirm, alter or revoke the Director's Order. Referring to Associated Industries Corp. v. Ontario (Director, Ministry of the Environment), [2008] O.E.R.T.D. No. 57 ("Associated Industries"), at para. 60, the Director notes that although the Tribunal may substitute its opinion for that of the Director, its jurisdiction is limited to the subject matter of the appeal.

83The Director submits that the impugned amendments to the ECA were made to clarify the MOECC's requirements regarding the operation of the Site.

84The Director argues that the overall operations at the Site, including truck noise, are subject to the ECA. The Director submits that the purpose of the EPA is to protect the environment and that the entire Act in its context must be considered. The Director submits that an "adverse effect" under the EPA includes impairment of the environment, damage to property, health, safety, animal life, loss of enjoyment of normal use of property, and interference with the normal conduct of business. The Director argues that each of these elements must be taken into account, including loss of enjoyment of normal use of property impacts.

85The Director submits that the exemption for motor vehicles from the requirement to obtain an ECA in s. 9(3) (f) of the EPA focuses on vehicle exhaust emissions and not noise emissions. He submits that the exemption does not apply to trucks as part of stationary noise sources, such as at the Site.

Intervals between trucks: Condition 1(4) (a) – (c)

86The Director submits that the reference in the initial ECA to "per hour" refers to "an hour of time on a rolling basis". The Director submits that the ECA was amended when it came to the Director's attention that the Appellant was interpreting this term to mean a static clock hour, which allowed for greater noise levels over shorter time periods and possible exceedances of the limits established in the AARs. The Director argues that the AARs evaluated noise levels based on the Site operating at a consistent operational level without truck deliveries bunched up in short time periods.

87The Director argues that assessing noise levels on a rolling hour basis is not complicated and that the calculations in the AARs have been accepted on this basis. The Director submits that no further calculations are needed. Referring to the evidence of Mr. Martella, the Director submits that he agreed that the definitions for L_eq and predictable worst-case noise impact as well as NPC-300's guidelines on stationary sources each refers to an hour as a measure of time and not as a point in time. The Director submits that Mr. Martella testified that there would be an exceedance if six aggregate trucks were processed in one hour. The Director submits that a clock-hour interpretation would allow such exceedances.

88The Director submits that the scheduling and monitoring of trucks is part of the concrete batching business and is something that the Appellant is required to do regardless of whether a rolling-hour or clock-hour calculation is used. The Director submits that although the Appellant may be required to adjust truck scheduling and monitoring, this is not an adequate rationale to disregard the limits set out in the AAR and the ECA.

Returning trucks: Condition 1(4)

89The Director submits that it was always intended that all truck movements, including the return of trucks, would be limited to the Site's hours of operation and that the Amended ECA does not alter the hours of operation set out in the ECA. The Director submits that in all the Appellant's AARs, noise from trucks during the Site's hours of operation was assessed and that trucks returning to the Site were part of the operations at the Site. The Director argues that all sources of noise must be assessed and approved and, if they are not, then the Appellant is in breach of the EPA. The Director submits that if trucks do not return within the hours of operation, then they are not approved to return at all. The Director argues that the amounts of noise that late-returning trucks make is not relevant as to whether they are returning within the hours of operation and that if the Appellant wishes to have trucks return after hours, then this should have been applied for and assessed for approval. The Director argues that the Appellant is attempting a "collateral attack" on the hours of operation condition, which it cannot appeal.

90The Director submits that the Appellant is parking trucks on property adjacent to the Site, which has also not been submitted for assessment or approval. The Director argues that the Appellant's compliance with NPC-300 is not sufficient, as the Appellant must also obtain ECA approval for these activities as required by s. 9 of the EPA. The Director submits that NPC-300 is a guideline to assist the Director in determining the terms and conditions for an ECA and is not a substitute for the ECA itself.

Number of aggregate trucks: Condition 1(4) (b)

91The Director submits that there can be no appeal of Condition 1(4) (b) regarding the number of aggregate trucks because this limit was set in the original ECA and was not appealed at the required time. The Director submits that the Appellant has not applied for an amendment of this provision and such an amendment was neither considered by the Director nor posted as a proposal on the Environmental Registry. He submits the Tribunal does not have jurisdiction to address this issue because it can only adjudicate decisions of the Director. The Director submits that a full review of the proposal would be required before the Director could make a decision to amend this condition.

Record keeping: Condition 7(2) (c)

92The Director submits that this amendment is to assist the Appellant in demonstrating compliance with the ECA. The Director submits that the new record keeping requirements are neither onerous nor impractical given that record keeping is already a required activity at the Site. The Director submits that this record keeping is an important aspect of noise control measures.

Reason 1

93The Director argues that, under s. 139 of the EPA, the written reasons for a Director's decision, which are included in an ECA, are not, in and of themselves, appealable. The Director submits that it is only the Director's decision that can be appealed.

The Director's Concluding Submissions

94The Director submits that ECAs are site-specific tools to permit the discharge of contaminants while ensuring environmental protection. He submits that an ECA takes into account the unique nature, purpose, size, location and risk associated with a proposed activity. The Director submits that each ECA is different, noting that some require more stringent conditions than others depending on the different types of environmental issues under consideration. The Director submits that he must consider the Appellant's needs and those of its neighbours to ensure that competing interests are properly balanced. The Director argues that ECAs are site-specific environmental protection tools that involve more than simply the application of NPC-300.

95The Director submits that as the Appellant's operations are located adjacent to a residential area, noise levels are a concern at the Site. The Director submits that "[t]he specific circumstances of this facility … called for conditions not necessarily found in other ECAs". He submits that the conditions are neither impractical nor onerous, but rather are necessary for concrete batching operations at this particular site. The Director argues that there is no evidence that compliance is impossible or that the Appellant has made efforts to devise means to implement the amended ECA.

96The Director submits that the Appellant's argument that the ECA's terms and conditions must be grounded in NPC 300 is incorrect. The Director submits that s. 9 of the EPA states that the Appellant's operations cannot be undertaken without an approval and that the NPC is used to assist the Director when making a decision whether to grant an ECA. The Director submits that not everything in the ECA flows out of NPC-300 and there are other issues that must be addressed, including record keeping and hours of operation. The Director submits that it is s. 9 of the EPA that is the governing authority, not NPC-300.

Submissions of the Appellant

97The Appellant submits that the amendments to the ECA are an attempt to pressure it to relocate its operations and attack its legal use of the Site. It submits that the amendments were not ordered in the Tribunal's June 2014 decision, but rather were made at the Director's own initiative making substantive changes with significant impacts on the Appellant's operations that are not supported by NPC-300. The Appellant submits that these changes do not have any technical rationale. It argues that the purpose of an ECA is "to provide industry with clear rules in order to regulate an operation and ensure compliance with the relevant law and rules, for the safety of the environment". It argues that the ECA should not be used to "prosecute and destroy a business".

98The Appellant submits that the ECA defines the equipment that it regulates and that it does not include trucks. It submits that the ECA focuses only on batching equipment that generates noise and dust emissions. It also submits that the return, rinsing and parking of trucks would not exceed NPC-300's guidelines. The Appellant submits that under s. 9(3) of the EPA, motor vehicles are exempt from having to be approved under an ECA. It argues that this interpretation is consistent with the definition of "equipment" in the ECA.

99Referring to s. 20.7 of the EPA, the Appellant submits that criteria must be applied objectively and should not be swayed by the views of a small group of neighbours that are opposed to the Appellant's operations. In determining the public interest, it submits that the interests of all stakeholders must be weighed. It argues that just because someone makes a public complaint does not mean that there is a public interest issue at stake.

Intervals between trucks: Condition 1(4) (a) – (c)

100The Appellant submits that the Director provided no technical basis for the position that measuring 60 minutes on the clock hour would lead to a doubling of the allowable trucks over certain time periods. The Appellant submits that, in any event, its evidence demonstrates that a doubling would only result in a 3 decibel noise increase, which it submits is insignificant. The Appellant submits that the concept of a 60 minute period is "new and novel", is not supported by NPC-300, and is designed to frustrate the Appellant's operations.

101The Appellant submits that the "rolling hour" limit as required by the Director would be "logistically impossible to implement" as many of the trucks visiting the Site are not owned or controlled by the Appellant and are difficult to communicate with. It submits that even coordinating its own trucks using a rolling hour would be challenging and will likely result in trucks staging outside the Site on the street. Moreover, the Appellant argues that Mr. Silva and Mr. Martella testified that the Site cannot physically accommodate the clustering of trucks, which the Director suggests would happen when using a clock hour interpretation.

102The Appellant referred to Mr. Gidamy's evidence that the ECA amendments will lead to challenges in modelling and lengthy and complicated consultants' reports. It also submits that traffic data is only available using a clock-hour basis.

Returning trucks: Condition 1(4)

103The Appellant submits that most complaints received by the MOECC regarding the Site are from the Presenters and relate to the late return of trucks. It submits that the amendments were intended by the Director "to appease and silence this small group of very vocal residents" and that based on the evidence of Mr. Gidamy, "late trucks are an insignificant source of noise that do not require an ECA approval". Referring to the evidence of Mr. Martella, the Appellant submits that as many as eight ready-mix trucks could park and rinse between 7 p.m. and 10 p.m. at the Site while remaining in compliance with NPC-300. The Appellant submits that the Director improperly limited its evaluation of the Appellant's AARs to only daytime operations, even though evidence assessing impacts after 7 p.m. was also available.

104The Appellant submits that the Director did not produce any opinion evidence regarding the City's noise by-law and that the Director relied on an interpretation of the by-law from municipal staff. The Appellant submits that there is no requirement for the ECA to mirror municipal by-laws and that the Director provided no technical basis for restricting the hours of operation at the Site. The Appellant argues that the Director had predetermined the issue prior to the review of the supporting documentation or receiving any technical inputs and did not properly review the by-law and consider whether it was being properly applied.

105The Appellant argues that the by-law does not regulate the return of trucks to the Site, but rather is limited to noise from the batching equipment. It submits that the City did not produce any witnesses at the hearing and did not provide any evidence on whether truck noise is regulated by the by-law. The Appellant submits that in any event, the City's position is that the ECA supercedes the by-law, and the Appellant argues that NPC-300 should therefore be the governing guideline.

106The Appellant also referred to Mr. Gidamy's evidence that the by-law does not apply to trucks and does not therefore regulate the hours of operation of truck-related activities. It submits that the noise generated by late trucks is "insignificant and practically undetectable to the human ear". It adds that the Presenters' evidence is that they cannot hear the trucks while they are being washed.

107The Appellant submits that applying the hours of operation requirement to returning trucks would be impossible due to the unpredictable and uncontrollable nature of the business and traffic and would result in stranded trucks on the street.

108Regarding the Appellant's use of adjacent property to the west of the Site for parking trucks, the Appellant referred to Mr. Martella's evidence that the property does not represent a predictable worst-case noise impact and does not need to be modelled. It further submits that the audit of noise mitigation measures by Valcoustics did not find any adverse impacts arising from the use of the adjacent property to the west.

109Regarding the Presenters' evidence, the Appellant submits that the Presenters represent a small segment of the community, many of the issues they raised are irrelevant, and their evidence should be afforded little weight.

Number of aggregate trucks: Condition 1(4) (b)

110The Appellant submits that its AARs address noise impacts of five aggregate trucks per hour arriving at the Site and that this data shows that an increase to five aggregate trucks will still meet NPC's noise limits. It argues that through the Tribunal's appeal process, the public has been notified of the Appellant's wish to increase the number of aggregate trucks. It also submitted that the Director has had an opportunity to consider this proposed increase.

Record keeping: Condition 7(2) (c)

111The Appellant submits that the record keeping changes in the Amended ECA are "onerous, impractical and unnecessary" and that the Director provided no technical support for them. The Appellant argues that this condition is intended to cause the Appellant to be in non-compliance in order to facilitate prosecution actions against it. It submits that keeping these records will be unprecedented and will do little to advance the purpose of the ECA. Moreover, the Appellant submits that recording access to the Site is not relevant to sound emissions and, therefore, should not be included in the ECA.

Reason 1

112The Appellant submits that Reason 1 regulates access to the Site, which it argues is improper.

The Appellant's Concluding Submissions

113The Appellant submits that to balance competing interests and determine the public interest, the decision maker must have regard to NPC-300, the impacts of the amendments on the Appellant, and the effects they will have as a precedent for other ECAs and AARs.

114The Appellant argues that there is no other technical guidance given to the MOECC or ECA applicants apart from NPC guidelines. It submits that it would be unfair and abusive for the Director to set rules that solely apply to the Appellant. The Appellant argues that if the appeal is not dismissed, the amendments to the ECA will have negative implications for the Appellant's business and will have "a chilling effect" for businesses that require ECAs across Ontario.

Submissions of the Participant – City of Toronto

115The Participant, the City of Toronto, made submissions on the intervals between truck arrivals, the returning of trucks after the Site's hours of operation, and the number of aggregate trucks permitted. The City did not adduce any evidence at the hearing.

Intervals between trucks: Condition 1(4) (a) – (c)

116The City argues that although trucks can be delayed, such delays will not have impacts based on whether "per hour" or "60 minute period" terminology is used. The City submits that an objective of the EPA should be to avoid excessive clustering of truck arrivals over a short time period and that the Amended ECA aims to do that.

Returning Trucks: Condition 1(4)

117In terms of the hours of operation, the City submits that the issue is whether the return of trucks after the hours of operation is regulated under the ECA. It argues that an interpretation of the City's noise by-law is not necessary as the ECA does not rely on the by-law, but rather mirrors it. The City submits that the issues are the noise impact of the trucks returning after hours and the impact of the change of the ECA's language from "deliveries" to "arrivals and departures". It submits that if the arrival time of returning trucks were not regulated, then the number of trucks returning after hours would be unlimited.

Number of aggregate trucks: Condition 1(4) (b)

118The City submits that the number of trucks permitted on the Site at any time has not been altered from the number permitted in the original ECA and that the City opposes any increases in truck numbers. The City submits that community members are frustrated with current operations and that adding more trucks would only increase the problem.

Analysis and Findings

119Pursuant to s. 145.2(1) of the EPA, the appeal is a new hearing and the Tribunal may substitute its opinion for that of the Director. In the present case, the Tribunal must decide on a balance of probabilities, based on the evidence presented at the hearing, whether, taking into account the purpose of the EPA, the Tribunal should confirm, alter or revoke Conditions 1(4), 1(4) (b), and 7(2) (c) and/or Reason 1 of the Amended ECA.

120Conditions 1(4), 1(4) (b), and 7(2) (c) and Reason 1 of the ECA address the calculation of time intervals for truck arrivals, hours of operation at the Site, the number of aggregate trucks allowed to visit the Site per hour, and record keeping at the Site. The Appellant also raises the issue of whether s. 9(3)(f) of the EPA exempts noise emissions from trucks from being governed by an ECA.

Noise emissions from trucks: Application of s. 9 of the EPA

121The Appellant argues that s. 9(3)(f) of the EPA exempts motor vehicles, including trucks, from ECA noise provisions. The Director disagrees. He argues that this exemption applies only for the purposes of regulating motor vehicle exhaust emissions as required in Part III of the EPA and does not apply to noise emissions from stationary sources.

122In its definition of "stationary source", NPC-300, at page 9, states that a "stationary source is understood to encompass all the activities taking place within the property boundary of the facility, including regular on-site truck traffic and material handling…" Section B1.1 of NPC-300 states that its limits apply to the assessment of stationary sources in compliance with s. 9 of the EPA. Section 9(3)(f) exempts a vehicle that "is subject to Part III" from the need for an ECA. Part III addresses motor vehicles generally, but does not address stationary facilities that include truck traffic as part of the operation. Based on this language, the Tribunal finds that the onsite movements of trucks at stationary industrial facilities are intended by the Legislature to be subject to the ECA requirement in s. 9 of the EPA and intended by the MOECC to be subject to the limits recommended in NPC-300. The Tribunal notes that this is consistent with the purpose of the EPA as set out in s. 3 of the Act, which states that the purpose of the Act is to "provide for the protection and conservation of the natural environment". This includes the prevention of adverse effects, including effects caused by excessive noise. Part III of the EPA does not address noise emissions from vehicles at stationary industrial facilities. The Appellant did not provide the Tribunal with any authorities which support the Appellant's assertion that s. 9(3)(f) exempts motor vehicles at stationary industrial facilities from regulation under an ECA. To the contrary, during the course of the hearing, the Appellant presented evidence of several other environmental compliance approvals that regulate noise emissions from trucks onsite at concrete batching facilities. As well, given that Part III does not address noise from vehicles at stationary industrial facilities, an interpretation of s. 9(3)(f) that would exempt such noise from the ECA regime would create a gap in environmental protection and would not be in keeping with the broad purposes of the EPA. The Tribunal finds in favour of the Director's interpretation of s. 9(3)(f), which is in keeping with the purposes of the EPA.

123For the above reasons, the Tribunal finds that NPC-300 is intended to be applied as guidance for regulating noise emissions from motor vehicles, including trucks, operating onsite at industrial facilities. Furthermore, when interpreting s. 9(3)(f) of the EPA in the context of the entire Act, and specifically taking into account the purposes of the EPA as set out in its s. 3 of the Act, the Tribunal finds that the operation of trucks onsite at stationary industrial facilities, such as the Site, are subject to the requirements of s. 9 of the Act and that the Amended ECA, therefore, applies to trucks operating at the Site.

Intervals between trucks: Condition 1(4) (a) – (c)

124The Director submits that its intention in replacing the word "per hour" is to limit noise impacts on residential neighbours by restricting truck movements and to ensure compliance with the NPC guidelines. The Appellant argues that this language is inconsistent with the language used in other environmental compliance approvals that regulate other concrete batching facilities elsewhere in the province, is novel, and will be difficult to implement.

125The Tribunal finds that whether a condition is inconsistent with the language in similar approvals, novel, or difficult to implement are claims that should be considered by the decision maker, but priority must be placed on ensuring that the emission limits at a site address the specific characteristics of the site's operations and location and achieves the environmental protection and conservation purposes of the EPA. Conditions must be tailored to the characteristics of the site, which in this case includes addressing the noise and potential loss of enjoyment of normal use of property impacts on local residents. The Tribunal must consider the specific environmental effects on affected receptors. It must ensure that specific approval conditions are in place for the Site that align with the purpose of the EPA (see: Safety-Kleen Canada Inc. v. Ontario (Director, Ministry of the Environment), [2006] O.E.R.T.D. No. 14 ("Safety Kleen"), at para. 40; and Lacombe Waste Services Ltd. v. Ontario (Director, Ministry of the Environment) (2005), 14 C.E.L.R. (3d) 47, at para. 49). The limits in NPC-300 assist in this exercise, but they are not exclusive. Other site-specific issues and concerns must also be taken into account. As well, the Director, or the Tribunal on appeal, may impose more stringent conditions than those found in general guidance documents to best achieve the purposes of environmental legislation in the specific circumstances of a given case.

126In Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment), [2009] O.E.R.T.D. No. 59, the Tribunal stated in this regard at para. 69:

As further discussed in Oxford (County) v. Ontario (Director, Ministry of the Environment), [2008] O.E.R.T.D. No. 40 (Ont. Environmental Review Trib.) at paras. 99-100, the Tribunal puts the priority on environmental protection in light of the purposes of the legislation. Secondary factors … are just that — secondary. They are subordinate to the overarching purpose of the legislation. The consideration of secondary factors is not an excuse for jeopardizing environmental integrity.

127The amendments to Condition 1(4) (a) – (c) changing "per hour" to "per 60 minute period" will help address adverse impacts caused by noise emissions from this particular Site and are in accordance with the EPA and its purposes. The amendments will ensure that truck arrivals and departures will be reasonably distributed over time so that noise emissions will not exceed the NPC-300 limits. Although this condition may require the Appellant to make changes to its operations, it allows it to continue operating at the Site while addressing the legitimate concerns of the Presenters and the Director. The amendments also address any loss of enjoyment of normal use of property, caused by truck traffic and other activities, as raised by the Presenters.

128The Appellant provided evidence that there would only be a 3 decibel increase in noise caused by a doubling of the number of trucks at the Site under a static clock hour interpretation of "per hour". It argues that such an increase would be insignificant. However, the Tribunal notes that based, on the data found in the November 2013 AAR, a 3 decibel increase during daytime hours would result in NPC-300 exceedences at most of the receptors. This was highlighted by Mr. Martella who opined that the operation of six aggregate trucks per 60 minute period at the Site would likely exceed the NPC-300 noise limits.

129Given the environmental protection purposes of the Act and the associated need to minimize adverse effects, including both noise and loss of enjoyment of normal use of property, the Tribunal finds that the amendments to Condition 1(4) are appropriate. The Tribunal, therefore, confirms these amendments.

130The Appellant raised concerns that use of a rolling hour interpretation would lead to trucks being forced to stage on the street outside the Site and cause additional adverse effects. The Tribunal notes that such challenges exist regardless of the type of time calculation required and must be prevented through the appropriate scheduling of truck arrivals. The Tribunal also does not accept the Appellant's argument that using a rolling hour approach will have a chilling effect for businesses. Each environmental compliance approval must be tailored to the site and operation to which it applies and, therefore, the unique conditions in this Amended ECA may not necessarily be appropriate for other concrete batching facilities.

Returning Trucks: Condition 1(4)

131The Appellant argues that the ECA permitted it to return ready-mix trucks to the Site after its hours of operation to rinse and park for the night. It appeals the change in language in Condition 1(4) replacing the word "deliveries" with "arrivals" and "departures". It argues that these amendments were made to appease the Presenters and inappropriately apply the City's noise bylaw so that the Appellant would be prevented from returning ready-mix trucks to the Site after the Site's hours of operation. The Appellant argues that empty ready-mix trucks returning to the Site do not "deliver" anything, do not constitute "equipment" as defined in the ECA, are not part of the Site's operations, and, therefore, were not subject to the ECA. It submits that the noise emissions from returning trucks after hours are insignificant and the Director had no technical basis for making this amendment.

132Condition 1(4) of the ECA specifically refers to ready-mix trucks and limits the number of these trucks that the Site may receive. The Condition limits "deliveries" to a maximum of twelve ready-mix trucks per hour. The Director argues that the use of the term "deliveries" in this context includes truck arrivals. The Tribunal agrees. To find that deliveries do not include truck arrivals and to exclude ready-mix trucks from the restrictions in the ECA's Condition 1(4) would make the condition incoherent and would leave a gap in the regulatory coverage contemplated by the approval. The Tribunal finds that reading Condition 1(4) in the context of the entire ECA and law and policy framework set out in NPC-300 and the EPA, Condition 1(4) of the ECA regulates ready-mix truck arrivals, including the return of empty trucks.

133The Appellant produced expert opinion evidence that the noise emitted by ready-mix trucks returning to the Site after hours would not exceed the limits set out in NPC-300 and that such activities should therefore be permitted. The Director stated he did not review the Appellant's data on after-hours operations, as he never contemplated that the ECA would cover such operations. He argues that the ECA's hours of operation were not amended and the Appellant may not appeal them now.

134The Tribunal agrees with the Director and finds that the hours of operation provisions in the ECA were not amended. Although the Appellant appealed these provisions in its 2013 appeal, the ECA's hours of operation were not altered under the Minutes of Settlement or the Tribunal's June 2014 decision. In fact, under the Minutes of Settlement, additional language was added reinforcing that operations at the Site must not be done outside the hours of operation. Given this finding, the Tribunal concludes that it does not have jurisdiction to alter the Site's hours of operation or allow truck arrivals after hours. In Hughes, the Tribunal noted, at page 13, that rights of appeal and the Tribunal's jurisdiction are restricted to the substance of the Director's immediate decision. The immediate decision here involved an amendment replacing the term "deliveries". It did not amend the Site's hours of operation. The Tribunal finds that the amendment replacing the word "deliveries" clarifies the language in Condition 1(4) and does not place new restrictions on the Appellant. In the alternative, regardless of what wording was used in the previous ECA, the Tribunal finds that the new wording is an improvement and will better attain the environmental protection objectives at this Site. The Tribunal confirms the amendment.

Number of aggregate trucks: Condition 1(4) (b)

135The Appellant argues that the amendments to Condition 1(4) changing "per hour" to "per 60 minute period" will reduce the number of aggregate trucks permitted at the Site and that the number should, therefore, be increased to maintain its existing level of operations. The Director argues that a rolling hour calculation of time intervals was always the Director's intended interpretation of the words "per hour" and that the amendments have not reduced the number of aggregate trucks that can operate at the Site.

136Part of the rationale behind the inclusion of a set number of trucks that may arrive at the Site each hour is to spread out the arrivals and prevent a clustering of trucks arriving at one time. This rationale is useful for a number of reasons. It reduces the concentration of noise emissions over short time periods, which could lead to NPC-300 noise exceedances or cause the loss of enjoyment of the normal use of neighbouring properties. It also reduces the risk of trucks arriving too close together resulting in staging outside on the street where noise emissions are not mitigated. Although a change from a static clock hour calculation to a rolling hour calculation may lead to a reduction in the number of aggregate trucks operating at the Site, it also reduces the risk of clustering and the associated adverse effects. The Tribunal finds that an increase in the number of aggregate trucks would neither facilitate the distribution of trucks nor the achievement of the purpose of the EPA. The Tribunal therefore confirms the amendment.

Record keeping: Condition 7(2) (c)

137The Tribunal observes that although noise generated from truck arrivals and departures may generally be consistent with the guidelines in NPC-300, there is no dispute that these operations generate noise and are an expressed concern of neighbours, the municipality and the MOECC. Taking into account the evidence of Ms. Cortellessa and Ms. McKeown of disagreements between the Appellants and complainants regarding alleged noise from the Site, the Tribunal finds that the reporting requirements in Condition 7(2) (c) should provide a comprehensive record of noise emissions and therefore are a useful means to address noise complaints. The Tribunal finds that record keeping conditions are clearly tied to the more substantive conditions regarding emissions and play an important role in approvals aimed at protecting the environment surrounding a given operation, especially those in residential areas. As well, the Tribunal notes that no relevant law or policy was presented to it questioning the authority of the decision maker to include this type of condition. For these reasons, the Tribunal confirms this amendment to the ECA.

Reason 1

138Submissions on Reason 1 were limited. The Appellant argued that Reason 1 is improper and the Director argued that the Appellant is not permitted to appeal reasons in a Director's Order. Reasons given in an ECA are a summary of the facts, opinions and conclusions on which the Director relied in making his or her decision. The purpose of these reasons is to provide an explanation of the Director's rationale for his or her decision. In exercising its jurisdiction, the Tribunal does not change the Director's reasons. Instead, under s. 145.2 of the EPA, the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing, and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director. The reasons set out by a Director in the ECA simply summarize the Director's views at the time the Director took a specific course of action. Following a new hearing, there would be no useful purpose served by the Tribunal engaging in a process of amending wording that summarized the Director's reasons for action at a given point in time. Consequently, the Tribunal finds that it has no jurisdiction to amend the Director's reason as the Appellant has requested. The Tribunal has conducted a hearing into the Director's actions, confirmed those actions, and provided the Tribunal's opinion for doing so. That is what s. 145.2 contemplates. This aspect of the Appellant's appeal is, therefore, dismissed.

Conclusion

139Upon consideration of the evidence and the submissions of the parties, participant and presenters, and taking into account the purpose of the EPA, the Tribunal confirms Conditions 1(4), 1(4) (b), and 7(2) (c) of the Amended ECA.

DECISION

140The appeal is dismissed.

Motion Dismissed

Appeal Dismissed

"Hugh S. Wilkins"

HUGH S. WILKINS

MEMBER

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Environmental Review Tribunal

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