Concerned Citizens Committee of Tyendinaga and Environs (CCCTE) v. Ontario (Environment and Climate Change), 2016 CanLII 21201

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: April 14, 2016

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: February 24, 2016 by telephone conference call

APPEARANCES:

Parties	Counsel
Concerned Citizens Committee of Tyendinaga and Environs	Richard D. Lindgren and Barbora Grochalova (student-at-law)
Director, Ministry of the Environment and Climate Change	Paul McCulloch
Waste Management of Canada Corporation	Harry Dahme
Mohawks of the Bay of Quinte	Eric Gillespie and Priya Vittal
Tom Touzel on behalf of Napanee Green Lights	Ian Miron

DECISION DELIVERED BY MAUREEN CARTER-WHITNEY

REASONS

Background

1This Decision concerns an appeal to the Environmental Review Tribunal (the “Tribunal”) by the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”) of certain conditions of Amended Environmental Compliance Approval number A371203 (the “ECA”) issued by the Director, Ministry of the Environment and Climate Change (the “Director”) to Waste Management of Canada Corporation (“WMC”), in relation to the closure of the Richmond Landfill Site (the “Site”) in the Town of Greater Napanee. The Tribunal granted party status in this matter to the Mohawks of the Bay of Quinte (“MBQ”) and to Dr. Tom Touzel as the representative of Napanee Green Lights (“NGL”), and participant status to Andrew Martin.

2Additional background information about this proceeding is provided in the Tribunal’s Order of December 24, 2015 (CCCTE v. Ontario (Environment and Climate Change), 2015 ONERT 86925). In its Order of April 26, 2013, the Tribunal accepted settlement agreements and the withdrawal of certain portions of the appeal and ordered the Director to amend the ECA accordingly, as agreed by the parties. The hearing of the remaining disputed portions of this appeal took place from April to June 2015.

3On July 21, 2015, the Tribunal issued an interim Order (“July Interim Order”) to address conditions in relation to the fall 2015 monitoring season through a number of amendments to the ECA, including implementation of the proposed Environmental Monitoring Plan, Revision No. 03, dated March 2015 (“EMP”). The July Interim Order was made pending the Tribunal’s final decision in this matter, and stated that the requirement for additional amendments to the ECA and further modifications to the EMP remained under consideration by the Tribunal and would be addressed in its final decision. On August 13, 2015, the Tribunal issued an Order varying the July Interim Order to extend a date set out in Condition 8.5(c)(iii). On October 29, 2015, the Tribunal issued an additional Order varying its July Interim Order to further extend that date.

4On December 24, 2015, the Tribunal issued an Order that provided its determination of the remaining portions of CCCTE’s appeal not disposed of in the Tribunal’s Order of April 26, 2013, including reasons for the July Interim Order. The December 24, 2015 Order was made subject to the Tribunal’s determination of the final wording of the ECA conditions and EMP provisions. The Tribunal directed the parties to submit either agreed-upon final wording or their submissions on the appropriate wording to assist it in making its determination and issuing its final decision in this matter.

5While the parties reached agreement on most aspects of the final wording, the wording of Condition 8.5(c) remained at issue. The Tribunal held a telephone conference call (“TCC”) on February 24, 2016 to hear oral submissions concerning the outstanding provision, with the participation of the following counsel: Richard Lindgren and Barbora Grochalova (student-at-law), on behalf of CCCTE; Paul McCulloch, on behalf of the Director; Harry Dahme, on behalf of WMC; Eric Gillespie and Priya Vittal, on behalf of MBQ; and Ian Miron, on behalf of NGL.

6In addition, on March 30, 2016, WMC requested that the Tribunal vary its December 24, 2015 Order to extend the date set out in Condition 8.5(e) from April 15, 2016 to June 15, 2016 to allow WMC to complete the work required pursuant to Condition 8.5(e) without being out of compliance. The parties provided written submissions on this request.

Issues

7The issues are:

1. Whether to accept the final wording proposed on consent;
2. Whether to accept the additional sentence in Condition 8.5(c) proposed by CCCTE; and
3. Whether to extend the date in Condition 8.5(e) in the December 24, 2015 Order.

Discussion, Analysis, and Findings

Final Wording of ECA and EMP

Issue 1: Wording proposed on consent

8The Director provided the Tribunal with proposed final wording of the ECA conditions and EMP provisions, on consent of all parties, with the exception of one provision. After carefully considering the proposed final wording, the Tribunal accepts and adopts those portions proposed on consent, as set out in the Decision below.

Issue 2: Additional sentence in Condition 8.5(c) proposed by CCCTE

Submissions

9The outstanding provision upon which the parties have not been able to reach agreement relates to the criteria used to conduct an assessment of whether the off-site leachate impacted groundwater has been delineated shall be conducted, under Condition 8.5(c). Regarding those criteria, CCCTE proposes to add the underlined text set out below, at the end of Condition 8.5(c):

The extent of leachate impacted groundwater shall be delineated if it is demonstrated that groundwater quality within a sufficient number of monitoring wells at the outer extent of the impacted area that are hydraulically connected to the defined area of leachate impacted groundwater does not exceed:

i) the reasonable use limit (“RUL”) for 1,4-dioxane;

ii) any RUL as defined in Guideline B-7 and its corresponding procedure, B-7-1 unless the exceedance is identified as not originating from the leachate from the landfill; or

iii) any RUL set out in this approval for other parameters unless the exceedance is identified as not originating from the leachate from the landfill.

The delineation is required for the west, south, and east sides of the impacted area, with a sufficient number of monitoring wells required for each side of the plume.

10CCCTE submits that the inclusion of the proposed text is consistent with the Tribunal’s findings concerning the delineation of the contaminant attenuation zone (“CAZ”), and would provide greater clarity, certainty and direction as to where and how the CAZ is to be delineated. CCCTE sees no reason not to include this additional sentence and asserts that it will specify that more work is needed to delineate the CAZ boundary. CCCTE states that adding this single sentence will not vary the wording of the Tribunal’s December 24, 2015 Order substantially, and will direct where the CAZ delineation work is to occur. MBQ and NGL both adopt the submissions of CCCTE in respect of the provision at issue.

11The Director, while agreeing in substance with CCCTE that more work needs to be done to delineate the CAZ, submits that the additional text proposed by CCCTE is not necessary because the preceding text adequately captures what is required. In proposing amendments to the wording in the Tribunal’s December 24, 2015 Order, the Director submits that he has attempted to keep revisions to a minimum and avoid including unnecessary wording, in order to keep the conditions as clear as possible.

12WMC objects to including the text proposed by CCCTE, characterizing the additional sentence as a statement of fact rather than a condition. WMC submits that the additional wording is unnecessary given the preceding proposed text of Condition 8.5(c), which fully sets out how the extent of leachate impacted groundwater is to be delineated. WMC further submits the inclusion of the additional sentence would be confusing and would not assist WMC in determining what is required to be done to delineate the extent of the leachate impacted groundwater.

Findings on Issue 2

13Having reviewed the submissions of the parties, the Tribunal finds that it is not necessary to include the additional wording proposed by CCCTE.

14The first portion of the proposed sentence states that “the delineation is required for the west, south, and east sides of the impacted area.” The Tribunal finds that the preceding text in Condition 8.5(c) already makes that requirement clear in a more comprehensive manner. It provides that the extent of leachate impacted groundwater be delineated to “the outer extent of the impacted area”, which indicates that delineation of the extent of the contaminated leachate is required on all affected sides of the impacted area, including west, south and east.

15The Tribunal also finds the second portion of the proposed sentence, which states that the delineation is to be achieved “with a sufficient number of monitoring wells required for each side of the plume”, to be repetitive of language in the first sentence of Condition 8.5(c) regarding a sufficient number of monitoring wells. The Tribunal sees no need to repeat this phrase a second time in the proposed additional sentence.

16The Tribunal agrees with the Director’s submission that it is preferable to avoid including unnecessary wording in order to ensure that the conditions are clear and do not lead to any confusion. Including the sentence proposed by CCCTE could lead to confusion if it is interpreted as containing a requirement that is different from that which is already set out in the preceding text of Condition 8.5(c). The Tribunal finds that it would be redundant and potentially confusing to include the additional sentence.

17Therefore, the Tribunal adopts the final wording set out in the Decision below, based on the wording proposed by the parties on consent, but without including the additional sentence in Condition 8.5(c) proposed by CCCTE.

Issue 3: Extension of date in Condition 8.5(e) in the December 24, 2015 Order

Submissions

18Regarding its request to extend the date in Condition 8.5(e), WMC states that it did not receive a signed access agreement from Enbridge and TransCanada Pipelines to conduct the required work until March 24, 2016. In order to provide sufficient time to complete the investigations and prepare a report, WMC submits that it is necessary to extend the deadline from April 15, 2016 to June 15, 2016. WMC says that the request to extend the time will not change the dates for the delivery of any other reports and will not result in any prejudice to any party.

19At the request of CCCTE, WMC provided information about the work plan in relation to the requirements under Condition 8.5(e).

20There were no objections from the other parties with respect to the requested extension of the date from April 15, 2016 to June 15, 2016. CCCTE and MBQ provided WMC with comments and recommendations from their experts concerning the work plan.

Findings on Issue 3

21The Tribunal grants WMC’s request as WMC has provided a reasonable explanation of the need for the proposed amendment to Condition 8.5(e), and none of the other parties have objected to its request. The Tribunal notes that the condition referred to as Condition 8.5(e) in the Tribunal’s December 24, 2015 Order will be Condition 8.5.2 in the final version of the amended ECA as set out below.

DECISION

22The Tribunal directs the Director to amend the ECA as follows:

1. The amendments to Condition 8.5 and added Conditions 8.7 and 8.8 as required by the Tribunal’s Interim Order dated July 21, 2015 as amended on October 29, 2015 [the provisions of which are set out in Appendix A attached to this Decision], and as imposed by the Director in amendments to ECA number A371203 dated August 14, 2015, entitled “Notice No. 3” and November 5, 2015, entitled “Notice No. 4”, shall be retained except to the extent that they are further amended by this Order.

2. Condition 8.5 of the ECA as in effect as of December 31, 2015 shall be revoked and replaced with the following:

8.5(a) The Owner shall submit to the District Manager by no later than April 15, 2016, with copies to the Parties, a revised Environmental Monitoring Plan (“revised EMP”). The revised EMP shall implement all of the provisions of the Interim Environmental Monitoring Plan Revision No. 04, prepared by WESA, dated August 2015, (“interim EMP”) subject to the following modifications ordered by the Tribunal:

i. The interim EMP shall be further modified to implement continuous conductivity monitoring on Marysville Creek for one year, commencing May 1, 2016, with continuous conductivity loggers placed at: an appropriate location on the Creek, far enough upstream of Deseronto Road to ensure no interference from road salt; and a second location upstream of the Landfill to detect background influences. The results of the continuous conductivity monitoring shall be reported in conjunction with the January and July 2017 Semi-Annual reports.

ii. The interim EMP shall be further modified to state that the need for additional nested monitoring wells in the area of Marysville Creek and the Landfill shall be assessed should 1,4-dioxane or another listed parameter be detected.

iii. The interim EMP shall be further modified to require that the domestic and agricultural wells at properties located south of Highway 401 on County Road 1 West and Belleville Road, at the addresses noted in the row entitled “Off-site Domestic Wells”, Table 2, page 11 of the August 2015 Interim EMP, should be tested for 1,4-dioxane every two years for at least the next six years, or until the extent of the leachate contaminated groundwater is delineated if that takes longer than six years, and then every five years once the delineation is complete.

iv. The interim EMP shall be further modified to require that confirmation resampling (Step 2 under the groundwater evaluation methods and trigger mechanisms set out at 7.1 of the proposed revised EMP) is to occur at the same time as a water quality conformance assessment (Step 1).

v. The interim EMP shall be further modified to set a Reasonable Use Limit (RUL) for 1,4-dioxane at 1 μg/l. Should Ontario amend O. Reg. 169/03 to set an Ontario Drinking Water Quality Standard for 1,4-dioxane, the RUL shall be re-calculated in accordance with procedure document B-7-1, and the interim EMP shall be amended as necessary to reflect the re-calculated RUL.

8.5(b) The Owner shall carry out monitoring in accordance with the revised EMP submitted by April 15, 2016 as of April 16, 2016.

8.5(c) The Owner shall submit a report to all the parties and the District Manager by April 15, 2016 detailing any relevant work carried out relating to the delineation of off-site leachate impacted groundwater or surface water not otherwise described in the January 15, 2016 report submitted further to items 8.5(c) i. to iii. set out in the Tribunal’s Order dated July 21, 2015 as amended on October 29, 2015 [the provisions of which are set out in Appendix A], detailing any relevant additional work carried out during this time period, and providing an assessment with necessary supporting rationale as to whether the off-site leachate impacted groundwater has been delineated. The assessment shall be conducted in accordance with the following criteria:

The extent of leachate impacted groundwater shall be delineated if it is demonstrated that groundwater quality within a sufficient number of monitoring wells at the outer extent of the impacted area that are hydraulically connected to the defined area of leachate impacted groundwater does not exceed:

i) the reasonable use limit (“RUL”) for 1,4-dioxane;

ii) any RUL as defined in Guideline B-7 and its corresponding procedure, B-7-1 unless the exceedance is identified as not originating from the leachate from the landfill; or

iii) any RUL set out in this approval for other parameters unless the exceedance is identified as not originating from the leachate from the landfill.

8.5(d) The following process shall be followed with respect to the report submitted under 8.5(c):

i. CCCTE, the MBQ and NGL shall have until June 1, 2016 to provide written comments on the report to the Owner and the District Manager and specifically whether delineation has been completed in accordance with the criteria.

ii. After receiving the written comments from CCCTE, the MBQ and NGL, the District Manager will convene a meeting among all the parties to obtain further input and attempt to reach a consensus on whether delineation has been completed.

iii. By no later than July 31, 2016, the District Manager shall issue a written notice to the Owner and copying the parties indicating whether delineation has been completed in accordance with the criteria.

iv. If it has been determined by the District Manager that delineation has not been completed, the Owner shall submit another proposal for additional groundwater investigations that shall be considered in accordance with steps i. through iii. with timelines modified by the District Manager accordingly.

v. The procedures or deadlines set out in steps i. through iv. can be altered with the consent of all the parties.

8.5(e) Within 90 days of the District Manager providing written notice to the Owner that delineation has been completed, the Owner shall submit to the Director, Environmental Approvals Branch, Ministry of the Environment and Climate Change an application for approval to amend the ECA to address any non-compliance with Condition 8.6 and guideline B-7, including if warranted an application to incorporate a contaminant attenuation zone into the approval, and including a proposed updated EMP. The application to amend the ECA shall be treated as a standard application and be posted on the EBR Registry for public comment. The application shall outline the options that were considered for bringing the Site into compliance with Guideline B-7 and the rationale for the preferred option, and include all necessary supporting documentation.

3. The following new conditions shall be added to the ECA:

8.5.2 The Owner shall conduct a comprehensive investigation of the hydrogeological implications and potential impacts of an existing pipeline which runs across the northern part of the neighbouring properties to the south of the site and submit a report to the District Manager and the Parties outlining the findings by June 15, 2016.

8.6.1 For the purposes of Condition 8.6, a reasonable use limit of 1 μg/l shall be used for the parameter 1,4-dioxane unless an Ontario Drinking Water Quality Standard is established in O. Reg. 169/03 in which case the RUL for 1,4-dioxane shall re recalculated in accordance with the B-7-1 Procedure Document and the interim EMP or EMP, as the case may be, shall be amended as necessary to reflect the recalculated RUL.

8.6.2 Notwithstanding Condition 8.6, if a contaminant attenuation zone (“CAZ”) is established, the site shall be operated in such a way to ensure compliance with MOE’s Guideline B-7 Reasonable Use Concept at

i) monitoring wells that act as groundwater compliance points within the CAZ; or

ii) along the boundary of the CAZ where it replaces the property line,

unless the non-compliance is identified as not originating from the leachate from the landfill.

8.9 Unless otherwise agreed in writing to by the residents of the residences listed below or unless the residence is vacant and likely to remain vacant, the Owner shall provide whole house replacement water supplies for the residences located at 1264, 1252, 1250, 1206, 1181, and 1144 Beechwood Road.

4. Condition 9.1 of the ECA shall be revoked and replaced with the following:

9.1(a) The Owner shall initiate the contingency plans outlined in section 7.4 of the revised EMP referenced in Condition 8.5(b), or as replaced with an updated version, when any of the identified trigger mechanisms occur.

9.1(b) Notwithstanding Condition 9.1(a), the Owner shall not use a fracture trench as a Leachate Collection System contingency measure.

23The above direction to amend the ECA replaces paragraph 467 of the Tribunal’s December 24, 2015 Order.

Appeal Allowed in Part

Director Ordered to Amend Environmental Compliance Approval

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY member

Appendix A – Provisions of July 21, 2015 Interim Order, as amended on October 29, 2015, including Appendix A to the July 21, 2015 Interim Order

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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