London (City) v. Ontario (Environment and Climate Change), 2016 CanLII 42755

Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: July 8, 2016

CASE NO.: 15-138

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

Appellant: Corporation of the City of London

Respondent: Director, Ministry of the Environment and Climate Change

Subject of appeal: Terms and conditions imposed in an Amended Environmental Compliance Approval to allow for alterations and extensions to the existing municipal sewage treatment works

Reference No.: 8081-9Z4H48

Property Address/Description: 109 Greenside Avenue

Municipality: City of London

Upper Tier: County of Middlesex

ERT Case No.: 15-138

ERT Case Name: London (City) v. Ontario (Environment and Climate Change)

Heard: In writing

APPEARANCES:

Parties Director, Ministry of the Environment and Climate Change Counsel Justin Jacob

Parties Corporation of the City of London Counsel Nicole Hall

DECISION DELIVERED BY HEATHER I. GIBBS AND KAREN KRAFT SLOAN

REASONS

Background

1On October 20, 2015 Fariha Pannu, Director, Ministry of the Environment and Climate Change (“MOECC”) issued Amended Environmental Compliance Approval No. 8081-9Z4H48 (“Amended ECA”) to the Corporation of the City of London (“City”) for alterations and extensions to the Greenway Water Pollution Control Centre, a wastewater treatment plant (“plant”). In operation since 1901, the plant is the largest waste water treatment plant in the City.

2The City appealed the inclusion of Condition 10, pursuant to s. 139 of the Environmental Protection Act (“EPA”). Condition 10 of the Amended ECA requires the following:

10. Receiver Impact Assessment Monitoring and Reporting

(1) The Owner shall conduct annual monitoring of Thames River water quality (benthic invertebrates) using the BioMAP method consistent with previous BioMAP study reports (2006 to 2012) by the City of London. The monitoring shall include quantitative and qualitative sampling and taxonomic identification to the lowest practical level (species or genus). The taxonomic work shall be conducted by a qualified professional who has a minimum of ten years relevant experience or possesses genus-level certifications for Groups 2, 3 and 4 taxa issued by the SFS taxonomic certification program. River monitoring locations shall be the two established sites from the previous studies, one upstream (T5) and one downstream (T6) of the sewage effluent outfall. The sampling shall take place in the autumn of each year.

(2) The owner shall provide an annual monitoring report, consistent in format and level of detail with previous study reports, to the Southwestern Regional Office within six (6) months of the sampling period each year. A report shall include but is not limited to: details of the methods used, complete results including field measurements and species taxa list with density data and a comparative assessment of monitoring results between the two sampling locations over time.

3The Tribunal held a Preliminary Hearing in London on February 29, 2016, as well as telephone conference calls (“TCCs”) on March, 29, April 20, May 5, and May 12, 2016. On June 15, 2016, the parties informed the Tribunal by email that they had reached a settlement agreement and that they consent to the withdrawal of the appeal on that basis. The parties provided the Tribunal with copies of executed Minutes of Settlement.

4Pursuant to Rule 201 of the Tribunal’s Rules of Practice (“Rules”), a proposed withdrawal of an appeal pursuant to a settlement agreement that alters the terms of a director’s order must be presented to the Tribunal for review.

Relevant Legislation and Rules

5Environmental Protection Act

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

Ontario Water Resources Act

0.1 The purpose of this Act is to provide for the conservation, protection and management of Ontario’s waters and for their efficient and sustainable use, in order to promote Ontario’s long-term environmental, social and economic well-being.

Rules of Practice of the Environmental Review Tribunal

201. Where the has been a proposed withdrawal of an appeal as part of a settlement agreement not objected to by any party that alters the decision under the appeal, the Tribunal shall review the settlement agreement and consider whether the agreement is consistent with the purpose and provisions of the relevant legislation and whether the agreement is in the public interest. The Tribunal shall also consider the interests of Participants and Presenters. After consideration of the above factors, the Tribunal may decide to continue with the Hearing or Issue a decision dismissing the proceeding.

Issue

6The issue is whether the Tribunal should accept the proposed withdrawal of the appeal, based on the Minutes of Settlement, as being consistent with the purpose and provisions of the relevant legislation, the EPA and the Ontario Water Resources Act (“OWRA”), and in the public interest.

Discussion, Analysis and Findings

7Both Parties consent to the withdrawal of the appeal based on the executed Minutes of Settlement, and there are no participants or presenters in this proceeding. Therefore, the issue that remains under Rule 201 is to determine whether the Minutes of Settlement are consistent with the purpose and the provisions of the relevant legislation and are in the public interest.

8The Minutes of Settlement are supported by an affidavit of Scott Abernethy, a surface water specialist with the MOECC, Southwestern Region. In his affidavit, Mr. Abernethy states that he reviewed the City’s approval application and that he had recommended the inclusion of Condition 10 of the Amended ECA. Mr. Abernethy also states that he reviewed the Class Environmental Assessment (“EA”) that was used for the proposal’s approval. In his affidavit, Mr. Abernethy identifies the four proposed amendments to the ECA as:

a. Condition 10 is now time-limited to five (5) years after the commissioning of the Proposed Works.

b. Sampling shall take place in the first, third and fifth years as opposed to annually.

c. The data assessment metrics shall include at a minimum, BioMAP(d) and BioMAP(q) water quality indices.

d. The reasons for Condition 10 further clarify the MOECC’s use of the monitoring data.

9In his affidavit, Mr. Abernethy states that the reduction of sampling from every year to every other year over a time limited period of five years will yield sufficient information to evaluate any aquatic impacts of effluent discharge from the plant. He adds that over the five year time period the sampled aquatic species will have completed several life cycles. Mr. Abernethy’s opinion is that there is “no technical reason to believe that latent impacts could occur, which are undetectable in the first five years”.

10The City outlined a number of concerns with the BioMAP methodology in its notice of appeal. Mr. Abernethy’s affidavit states that the BioMAP methodology is preferred by the MOECC Southwestern Region and he specified that at a minimum, the data assessment indices shall include BioMAP (d) and (q). He explains in his affidavit that BioMAP (d) will assist the MOECC to fulfill its requirements under the OWRA to protect and manage the province’s water because this index is used to determine whether the water quality is impaired and if the water quality is impaired, it can also assist in determining the cause. Mr. Abernethy states in his affidavit that “the monitoring helps to determine if a river or stream has reached the limits of its carrying capacity or assimilative capacity to accept further sewage discharges”. He continues in his affidavit, that BioMAP (q), a qualitative index, documents the variety of aquatic species, which occur in aquatic habits at the sample site, and this index acts as a supplemental measure of water quality because the data is independent of the quantitative data.

11The Minutes of Settlement include revisions to the reasons section in Condition 10, which Mr. Abernethy outlines in his affidavit. He states that the revised reasons section in Condition 10 provides more explicit intentions for the monitoring data’s contribution to the MOECC’s knowledge and understanding of the “assimilative capacity of the Thames River to accept further sewage discharges”. Mr. Abernethy acknowledges the City’s initiative to operate BioMAP monitoring on local streams and rivers since the mid-1990’s, including a monitoring program in the Thames River from 2006 to 2012. Mr. Abernethy notes that the data gleaned from the Condition 10 monitoring programs will be compared to the data from the City’s existing programs. Additionally, in his affidavit, Mr. Abernethy states that the City has committed to use the Condition 10 BioMAP methodology in its Pollution Prevention and Control Plan (“PPCP”), required as part of the plant’s EA. It is Mr. Abernethy’s opinion that the “the use of a consistent method is important to generate comparable data for effective decision-making and water resource protection”.

12The City states in its written material that it is satisfied that the issues raised in its notice of appeal have been addressed. The MOECC submits that BioMAP monitoring, its preferred method for assessing cumulative impacts, will be undertaken, and that the data collected will be consistent with previous monitoring methods employed by the City for the Thames River. The MOECC states that this will assist in assessing impacts on the health of the river. The Parties submit that the amendments incorporated in the Amended ECA are supported by Mr. Abernethy’s affidavit and “will not undermine the usefulness of the data collected”. Therefore, the Parties submit that the Amended ECA is consistent with the purpose and the provisions of the EPA and OWRA and in the public interest.

13The Tribunal is satisfied, based on the uncontroverted evidence of the MOECC surface water specialist Mr. Abernethy, that: monitoring every other year will yield sufficient information to evaluate any aquatic impacts of effluent discharge from the plant; a five year approval is reasonable given that any latent impacts would be detectable within that time; use of the BioMAP monitoring method will allow for comparable data to be collected that can contribute to water resource protection decision-making; and the revised reasons section in Condition 10 provides more explicit intentions for the monitoring data’s contribution to the MOECC’s knowledge and understanding of the assimilative capacity of the Thames River to accept sewage discharges.

14The Tribunal therefore finds that the Amended ECA, with the proposed revised Condition 10, attached as Appendix A, is consistent with the purpose and provisions of the EPA and the OWRA and in the public interest.

DECISION

15The Tribunal accepts the parties’ Minutes of Settlement, with the revised Condition 10 attached as Appendix A, and the withdrawal of the appeal. The Director is directed to amend Amended Environmental Compliance Approval No. 8081-9Z4H48 in accordance with Schedule “A” to the Minutes of Settlement, attached as Appendix A.

16In accordance with Rule 201, the appeal is dismissed.

Settlement Agreement Accepted

Director Directed to Amend Approval

Appeal Withdrawn

Appeal Dismissed

“Heather I. Gibbs”

HEATHER I. GIBBS

VICE-CHAIR

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

MEMBER

Appendix A – Schedule “A” to the Minutes of Settlement

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Environmental Review Tribunal

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Appendix A

Schedule "A" to the Minutes of Settlement

Further to the Minutes of Settlement, the Parties agree to amend Condition 10 of

Amended Environmental Compliance Approval Number 8081-9Z4H48 (ECA) as follows:

10. RECEIVER IMPACT ASSESSMENT MONITORING AND REPORTING

(1) For five years after commissioning of the Proposed Works, the Owner shall conduct monitoring of Thames River water quality (benthic invertebrates) using the BioMAP method consistent with previous BioMAP study reports (2006 to 2012) by the City of London. The monitoring shall include quantitative and qualitative sampling and taxonomic identification to the lowest practical level (species or genus). The taxonomic work shall be conducted by a qualified professional who has a minimum of ten years relevant experience or possesses genus-level certifications for Groups 2, 3 and 4 taxa issued by the SFS taxonomic certification program. River monitoring locations shall be the two established sites from previous studies, one upstream (T5) and one downstream (T6) of the sewage effluent outfall. The sampling shall take place in the autumn of the first, third and fifth years following commissioning of the Proposed Works.

(2) For the five-year period in which the monitoring in Condition 10(1) is carried out, the owner shall provide a monitoring report, consistent in format and level of detail with previous study reports, to the Southwestern Regional Office within nine (9) months from the end of the first sampling year and six (6) months from the end of the sampling period for each subsequent sampling year. The reports shall include but not limited to details of the methods used, complete results including field measurements and species taxa list with density data and a comparative assessment of monitoring results between the two sampling locations over time. The assessment metrics of the benthic data shall include, at a minimum, the BioMAP(d) and BioMAP(q) water quality indices.

Reasons for Condition 10:

10. Condition 10 is included to provide the Ministry with additional information and data pertaining to impact of wastewater discharges from the Works on Thames River water quality for a period of five years post-commissioning of the approved Proposed Works. The monitoring data provides a measure of the assimilative capacity of the Thames River to inform future water resource planning decisions to minimize aquatic environmental impacts.