Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: January 8, 2016
CASE NO.: 15-095
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Applicant: Sharp Lake Area Residents Association Inc.
Instrument Holder: Miller Paving Limited
Respondent: Director, Ministry of the Environment and Climate Change
Subject of leave to appeal: Environmental Compliance Approval for a hot mix asphalt plant and aggregate depot
Reference No.: 6417-9Z9URX
Property Address/Description: 915143 Highway 11
Municipality: City of Temiskaming Shores
Upper Tier: District of Timiskaming
ERT Case No.: 15-095
ERT Case Name: Sharp Lake Area Residents Association Inc. v. Ontario (Environment and Climate Change)
Heard: In writing
APPEARANCES:
Parties Counsel/Representative+
Sharp Lake Area Residents Association Inc. Alice Hearn-Flannigan+ and Katryna Bennett +
Director, Ministry of the Environment and Climate Change Sarah Kromkamp
Miller Paving Limited Douglas Hamilton
DECISION DELIVERED BY HEATHER McLEOD-KILMURRAY AND DIRK VANDERBENT
REASONS
Background
1On March 26, 2015, Miller Paving Limited (the “Approval Holder” or “Miller”) submitted an application to the Ministry of the Environment and Climate Change (“MOECC”) for approval of a hot-mix asphalt plant and aggregate depot, with a maximum production rate of 270 tonnes per hour and not exceeding 900 tonnes per day with various associated sources of air emissions (the “Facility”) at 915143 Highway 11, City of Temiskaming Shores, District of Temiskaming (the “Site”). The Site is located on the east side of Highway 11, and Sharp Lake is several hundred meters further to the east.
2On September 1, 2015, Ian Greason, Director, MOECC, issued Environmental Compliance Approval No. 6417-9Z9URX (the “ECA”) to the Approval Holder. The Instrument Proposal Notice for the ECA was posted on the Environmental Registry from April 23, 2015 to May 23, 2015 for a 30 day public comment period, during which 15 comments were received from the public, including a comment from the Sharp Lake Area Residents Association Inc. (“SLARA”). The Instrument Decision Notice of the ECA was posted on the Environmental Registry on September 11, 2015.
3Since the 1970s, the Approval Holder has operated a portable asphalt plant at the Site. This plant produces hot-mix asphalt for use in local construction projects. Aggregate materials such as limestone, gravel and sand are transported to the Site and stored in an aggregate storage depot at the Plant. Liquid asphalt cement is also transported to the Site and stored in storage tanks. This plant mixes these materials to produce hot-mix asphalt which is transported by truck to local construction projects.
4The portable asphalt plant operated under portable Certificate of Approval (Air) No. 73/7/38, issued in 1973, had no conditions, and therefore there was no limit on production, number or length of operating days and site-specific measures to control emissions. Although portable, it has never operated at other locations but remained at the Site. The portable asphalt plant was equipped with a wet scrubber to control dust emissions. The Approval Holder also operates a portable crushing plant with a baghouse on the same Site, separate from the asphalt plant, approved under Environmental Compliance Approval No. 0604-975RMV, issued in 2013 (and for which SLARA (the “Applicant”) also sought leave to appeal, but the issues were resolved and withdrawn when the Approval Holder agreed that the portable crusher would not operate after the May long weekend each spring, the date when the asphalt plant begins its seasonal operation). The portable crusher is brought to the Site early each spring for a short period to crush aggregate material for later use in the Plant. It does not remain at the Site.
5On September 25, 2015, the Applicant filed an application for leave to appeal (the “Leave Application”) the Director’s decision to issue the ECA under s. 38 of the Environmental Bill of Rights, 1993 (the “EBR”) with the Environmental Review Tribunal (the “Tribunal”).
6In applying for the ECA, the Approval Holder retained qualified consultants to conduct an emission summary and dispersion modelling (“ESDM”) assessment and an acoustical assessment. The results of these assessments were, respectively, documented in two reports:
(1) a report prepared by BCX Environmental Consulting, dated February 12, 2015 and signed by Christina Wright (the “ESDM Report”); and
(2) a report prepared by HGC Engineering, dated March 16, 2015 and signed by Corey Kinart, P.Eng. (the “Acoustical Assessment Report”).
The ECA expressly incorporates both Reports by reference.
Relevant Legislation
7Environmental Bill of Rights, 1993
(1) Any person resident in Ontario may seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument of which notice is required to be given under section 22, if the following two conditions are met:
The person seeking leave to appeal has an interest in the decision.
Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.
Leave to appeal a decision shall not be granted unless it appears to the appellate body that,
(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and
(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.
Issues
8The two issues on this application for leave to appeal are:
(1) whether the Applicant has standing under s. 38(1) of the EBR to bring the application for leave to appeal; and
(2) whether the Applicant meets the two-part test for leave to appeal under s. 41 of the EBR (the “Leave Test”).
Discussion, Analysis and Findings
Overview
9In its Leave Application, the Applicant:
(1) raises issues/concerns regarding the Acoustical Assessment Report and the ESDM Report;
(2) makes comments/suggestions regarding Conditions 4, 7, and 8 of the ECA.
(3) provides a list of area residents’ concerns regarding the Facility’s short term and long term adverse effects and negative impacts;
(4) makes recommendations for changes to conditions 1 and 2 of the ECA;
(5) asserts that it is not appropriate to locate the Facility in the area which is a rural setting, and that setback distances from homes are inadequate;
(6) asserts that the ECA should not have been issued, based on an alleged history of past non-compliance by the Approval Holder with environmental rules and practices; and
(7) asserts that the wet scrubber caused soil and/or water contamination in the past.
10To organize its analysis, the Tribunal will address sub-paragraphs (1) through (7) above as sub-issues. As the format of the Leave Application and the nature of the Appellant’s submissions do not address the two branches of the Leave Test separately, the Tribunal, in its analysis of each sub-issue, will address the two branches of the Leave test together. Although the Tribunal has considered all of the parties’ submissions in detail, only the more salient submissions have been summarized in this Decision.
11The Applicant, in addition to its written submissions, simply relies upon documentation obtained from the MOECC and published articles in its Leave Application. It did not file evidence from persons with technical experience regarding the specific matters addressed in many of the grounds set out in the Leave Application. In some ways, the Leave Application is structured similarly to a document that would be submitted as part of a public consultation process as opposed to a document that specifically links evidence and submissions to the Leave Test.
12In response, the Director, in addition to his submissions, filed affidavits of three professional engineers:
(1) Ian Greason, who is a supervisor of Approval Services in MOECC’s Environmental Approvals Branch. As noted earlier in this Decision, Mr. Greason is the Director who approved the ECA;
(2) Mitra Vala, who is the MOECC Senior Review Engineer (the “Air Engineer”) who reviewed the Approval Holder’s application for the ECA. Ms. Vala has experience in reviewing applications for environmental compliance approvals related to air applications. Her experience includes reviewing applications regarding various industrial sectors including asphalt paving mixture manufacturing, aggregate materials crushing, and concrete manufacturing.
(3) Header Merza, who is an MOECC Senior Noise Engineer (the “Noise Engineer”) who reviewed the Approval Holder’s application for the ECA. His experience includes conducting reviews of acoustical assessment reports, acoustic audit reports, and vibration assessment reports submitted in support of environmental compliance approval applications.
13In response, the Approval Holder did not file any evidence in addition to its submissions, but relies on the affidavit evidence adduced by the Director.
Issue 1: Whether the Applicant has standing under s. 38(1) of the EBR to bring the application for leave to appeal
14The Director and the Approval Holder agree that the Applicant has standing, as defined by s. 38 of the EBR, to bring the Leave Application. The Tribunal finds the Applicant has standing. It represents members of the community who live in the vicinity of the Facility and may be affected by its operations, and another person, in this case, the Approval Holder, has a right under the Environmental Protection Act (“EPA”) to appeal the Director’s decision.
Issue 2: Whether the Applicant meets the two-part test for leave to appeal under s. 41 of the EBR (the “Leave Test”).
15In overview, the Applicant asserts that it appears that there is good reason to believe that no reasonable person, having regard to the relevant law and any government policies developed to guide environmental decisions, would allow the approval of the Facility upon the review of the application, reports and comments, given its alleged effects on the health of people and the environment in the adjacent area. The Applicant’s closing submission states:
Sharp Lake area residents invested in water front property, some over fifty (50) years ago. This beautiful, serene rural residential area has been detrimentally impacted not only by the hot mix asphalt plant but the aggregate operations onsite and adjacent to it. Area citizens invest their lives in their homes/properties choosing a lifestyle that accommodates their dreams. Citizens in Ontario are entitled by law to breathe clean air, not to be exposed to loud noise and excessive vibrations, to have access to clean and plentiful water and to have the enjoyment and normal use of their property without harm and/or material discomfort. These fundamental legal entitlements cannot be ignored. Allowing the hot mix asphalt plant as well as the onsite crushing operations and illegal aggregate extractions (at our back door) not only ignores these fundamental legal entitlements, but also ensures continued adverse effects and negative impacts on residents and their investments.
16The Director’s position is that the Applicant has not demonstrated any errors in the Director’s decision to approve the ECA. The Director emphasizes that the Applicant has filed no expert evidence to challenge the scientific or technical bases for the Director’s decision. The Director asserts that the Applicant has merely raised concerns about the adequacy of technical reports submitted with the application and about historic issues at the Site, as well as making recommendations for additional terms and conditions for the ECA. However, the Director maintains that none of these concerns are supported by any expert opinion, and, moreover, these concerns are contradicted by the expert evidence of the MOECC Senior Noise and Air Engineers, as outlined in their affidavits.
17Both the Director and the Approval Holder maintain that the ECA provides for two environmental improvements. The first is the replacement of the wet scrubber with a baghouse, which more effectively removes particulate emissions and does not require treatment of water, allowing for the decommissioning of the settling pond and reducing the potential for impacts on the local watershed. The second is the addition of stringent terms and conditions in the ECA, which include:
(1) restrictions on the Facility production rate and operating times;
(2) requirements concerning the implementation of additional noise control measures and a requirement to carry out measurements of the actual noise emissions due to the operation of the Asphalt Plant;
(3) requirements concerning the development and implementation of an odour control plan;
(4) requirements concerning the development and implementation of a best management practices plan for the control of fugitive dust; and
(5) other requirements relating to the operation and maintenance of the Asphalt Plant, including alarm systems for the baghouse.
18The Approval Holder’s position is that the Applicant has not established either branch of the Leave Test. The Approval Holder asserts that most of the materials filed by the Applicant are not relevant to either branch of the Leave Test, and that the remaining relevant materials do not support a finding that either branch of the Leave Test has been met. The Approval Holder also takes the position these relevant materials, instead, actually support the reasonableness of the Director's decision to approve the replacement of the wet scrubber with a bag house, emphasizing that this replacement is an environmental improvement.
Sub-Issue 1: Issues/concerns regarding the Acoustical Assessment Report and the ESDM Report
Applicant’s Submissions
19The Applicant is concerned that the Acoustical Assessment Report was conducted when the Facility was not operating, and therefore is not based on actual Site data, and does not reflect the cumulative sound limits from the crusher and its equipment or adjacent aggregate operations.
20In relation to both the ESDM Report and the Acoustical Assessment Report, the Applicant expresses the following concerns:
(1) The number of aggregate trucks arriving and departing and the number of pieces of heavy equipment operating have been underestimated;
(2) The information about the route of virgin material is inaccurate;
(3) The existing foliage/trees between the Facility and residential properties have been overestimated, since the hydro line running between the Facility and some residences prevents foliage or trees; and
(4) The distance between noise receptor R3 and the Facility is incorrectly stated to be 335 m in the Report when in fact it is 312 m.
21The Applicant also submits that the acoustical assessment required under Condition 13 of the ECA once the Plant is operating, should, instead, be conducted prior to issuing the ECA, in order to ensure compliance with MOECC’s noise guidelines.
22The Applicant also expresses concern that the EDSM Report is inaccurate because it is based on computer generated mathematical formulas relying on optimal facility performance and operations, as well as some other information which the Applicant asserts is outdated and inaccurate. The Applicant asserts that an up-to-date accurate site specific emissions report should have been conducted and reviewed prior to granting the ECA, or, at least, this requirement should be included as a condition in the ECA.
23In its reply submissions, the Applicant observes that the Approval Holder is already operating a hot-mix asphalt plant under Environmental Compliance Approval No. 8-3070-87-006. The Applicant states that many complaints have been made with regard to this mobile unit, maintaining that the Applicant has been informed that one of the Approval Holder’s employees has stated there was nothing the Approval Holder could do to improve the noise, vibrations, foul smell or adverse effects and negative impacts. The Appellant further observes that this hot-mix asphalt plant is already equipped with a baghouse. The Appellant submits that common sense predicts that the new baghouse will not remove all the adverse effects and negative impacts.
24The Applicant points out that the ESDM Report also indicates that volatile organic compounds and suspended particulate matter are being dispersed into the air. The Applicant argues that any amount of volatile organic compounds and suspended particulate matter being released into the environment will have (and has had) long-term health effects on citizens, as these compounds are known carcinogens. The Applicant asks: “How is any amount safe?”
Submissions of the Director
25The Director submits that the ECA application was very thoroughly reviewed. The Director further emphasizes that the ESDM Report and the Acoustical Assessment Report were reviewed by senior MOECC engineers. The Senior Air Review Engineer confirmed that the Facility can operate within the Ministry’s point of impingement (“POI”) limits for all contaminants emitted to air as prescribed by Regulation 419/05. The Senior Noise Engineer confirmed that with the implementation of the recommended noise control measures, the sound levels for the Facility will be in compliance with the applicable limits.
26The Director points out that the Applicant’s submissions are not supported by any expert evidence, and submits, therefore, that they should be characterized only as statements of concern, not opinion evidence.
27The Director submits that the Director’s evidence establishes that, in issuing the ECA, the Director and the Senior Review Engineers, Ms. Vala and Mr. Merza, considered all relevant laws and policies to ensure that the Facility operates in a manner that is protective of the environment. Specifically, in reviewing the application for the ECA and supporting documents, they considered the requirements of the EPA, Regulation 419/05: Air Pollution – Local Air Quality (“Regulation 419”), the EBR and Statement of Environmental Values (“SEV”), Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning – Publication NPC-300 (“NPC-300”), and determined that the decision to issue the ECA with terms and conditions was consistent with these laws and policies.
28The Director emphasizes that the affidavit evidence establishes that the Acoustical Assessment Report is based on actual Site data including the nature and locations of noise sources and receptors. The Director notes that, while the Acoustical Assessment Report did not include actual noise measurements at the Site (as a result of seasonal limitations) noise measurements were taken at another comparable asphalt plant operated by the Approval Holder. The Director points out that this was deemed to be acceptable by the MOECC Senior Noise Engineer and is the reason why the ECA includes a condition requiring the Approval Holder to conduct an acoustical audit to confirm the accuracy of the noise modelling. The Director submits that, should the acoustic audit determine that noise levels are higher than predicted, additional noise related conditions can be added to the ECA.
29The Director asserts that the Acoustical Assessment Report considered all sources of noise associated with the hot mix asphalt plant. The Director maintains that it did not consider cumulative noise emissions from the aggregate crusher or adjacent aggregate operation since the Approval Holder has committed to not operate the asphalt plant when the aggregate crushing or extractions are operational. The Director relies on the opinion of Mr. Merza, the Senior Noise Engineer, who was satisfied with this approach and did not require the Approval Holder to conduct an assessment of the cumulative noise impacts since these noise sources will not be operating simultaneously. The Director notes that Mr. Merza does not agree with the Applicant’s submission that a revised noise assessment is required, given the commitment of the Approval Holder not to operate the asphalt plant when the aggregate crushing or extractions are operational.
30According to the Director’s submissions, baghouses are significantly more effective than wet scrubbers at reducing particulate and asphaltic air contaminants from an asphalt plant’s dryer/mixer. Moreover, the Director asserts that the replacement of a wet scrubber with a baghouse eliminates the production of wastewater and reduces the potential impacts on local water resources. The Director submits that the environmental control equipment approved under this ECA represents a significant improvement over previously approved equipment at the Site.
Submissions of the Approval Holder
31The Approval Holder submits that the Acoustical Assessment Report was prepared by a qualified and experienced noise consultant in accordance with MOECC guidance. The Approval Holder maintains that this assessment was not intended to measure actual noise emissions, but to predict the worst case noise emissions from the Facility. The Approval Holder emphasizes that it was not possible to measure actual future noise, as the new baghouse could not be constructed until the ECA was issued. The Approval Holder agrees with the Director’s submission that further protection is provided by Condition 13 in the ECA which requires that an acoustic audit be conducted once the baghouse is in place and the Facility is operating, emphasizing that this acoustic audit will measure actual noise emissions at the Plant.
32The Approval Holder submits that there is no evidence of any of the alleged inaccuracies in the assumptions or factual scenarios assessed in the technical reports, further submitting that there is also no evidence concerning what effect, if any, such inaccuracies would have on the assessment results.
33The Approval Holder also asserts that it has never received a noise complaint regarding the Plant.
34Regarding air contaminant emissions, the Approval Holder asserts that the Applicant does not point to any alleged levels or concentrations of these emissions from the Asphalt Plant and does not allege that any such levels or concentrations could exceed the applicable regulatory limits or could result in significant harm to the environment.
35The Approval Holder further asserts that the Applicant merely alleges that area residents “are concerned with” adverse effects and negative impacts due to emissions from the Asphalt Plant. The Approval Holder states that, importantly, the Applicant does not make any allegation whatsoever concerning the potential environmental harm due to the decision in issue - i.e., the decision to approve an environmental improvement (the replacement of the wet scrubber by the bag house and to add site-specific conditions to the ECA which require measures intended to ensure that the continued operation of the Asphalt Plant will not cause any environmental concerns).
Findings on Sub-Issue 1
36The Tribunal notes that, in this case, the Applicant has not filed evidence from persons with experience relating to the technical matters that the Applicant has raised in its grounds. As well, the Applicant has not provided evidence or a cogent analysis that shows that the opinions and conclusions of the Air and Noise Engineers are based on incorrect factual evidence or are otherwise unreliable. The Applicant has made assertions, as noted above, regarding incorrect assumptions, but has not provided any other clear and probative evidence to support these assertions. Moreover, even if these assertions are assumed to be correct, the Appellant did not provide any other cogent evidence to indicate that the conclusions set out in the ESDM and Acoustical Assessment Reports would, as a result, change, or that the Air and Noise Engineers’ evaluation and acceptance of these two reports is in error. Similarly, the Applicant has not provided any other cogent analysis to suggest that the Tribunal should not rely on the opinions expressed by these two professional engineers. The Tribunal further finds that, although the Applicant relies on the comments of several area residents submitted in response to the proposed decision on the Environmental Registry citing concerns regarding excessive dust, noise and health effects from living near the Site, the Applicant has not provided any compelling evidence in the documents that the Applicant has filed to contradict the opinions of these two engineers.
37Regarding the Applicant’s assertion that air emissions include volatile organic compounds which are carcinogenic, and, therefore, that no amount of emission level is safe, the Tribunal notes the determination of safe emission levels requires technical and expert opinion evidence. Again, the Applicant has not provided such evidence, and consequently, there is no evidence to counter the opinion of the Air Engineer in this regard.
38For these reasons, the Tribunal finds that the Applicant has not established that either branch of the Leave Test has been satisfied based on the concerns raised respecting the Noise Assessment and ESDM Reports filed in support of the Approval’s Holder’s application for the ECA, and the Director’s review and evaluation of these Reports.
Sub-Issue 2: Comments/suggestions regarding Conditions 4, 7, and 8 of the ECA
39The Applicant makes comments/suggestions/recommendations regarding:
Condition 4 (the bag house malfunction/by-pass alarm): The alarm system should automatically notify the MOECC to ensure compliance;
Condition 7 (the Odour Control Plan): Implementation of the odour control plan should be immediate and all equipment should be shut down pending completion of investigation of all complaints; and
Condition 8 (Fugitive Dust Control): Dust control based on water sprays is often ineffective in certain types of weather, so other measures should be developed, and all equipment should be shut down pending completion of investigation of all complaints.
Findings on Sub-Issue 2
40The Tribunal notes that the Applicant has not provided any evidence or analysis to establish that it appears that there is good reason to believe that no reasonable person could have made the decision to approve the ECA without incorporating the Applicant’s suggestions. Consequently, the Tribunal finds that the Applicant has not established that the first branch of the Leave Test has been satisfied on this sub-issue. Similarly, the Applicant has provided no evidence or analysis to indicate that operating the Facility in accordance with the ECA, without the Applicant’s suggestions, could result in significant harm to the environment. For these reasons, the Tribunal finds that the Applicant has not established that either branch of the Leave Test has been satisfied based on the Applicant’s comments/suggestions on this sub-issue.
Sub-Issue 3: Area residents’ concerns regarding the Facility’s short term and long term adverse effects and negative impacts
41The Applicant states that area residents have concerns, as expressed in their comments posted on the Registry, which include:
(1) Development of new health issues and the aggravation of existing health issues;
(2) Strong odours from the Plant (inside and outside the home);
(3) Smog, including air pollution;
(4) Fugitive dust/sticky film in the air which coats outside furniture, vehicles, dwellings, etc.;
(5) Excessive road traffic as well as heavy equipment;
(6) Loss of normal use and enjoyment of property;
(7) Decrease in quality of life;
(8) Decrease in property values;
(9) Exposure to chemicals, including known carcinogens;
(10) Excessive noise pollution and vibrations;
(11) Contaminated water and soil (Cobalt Water Act); and
(12) Degradation of plant and animal life.
Finding on Sub-Issue 3
42As noted in the Tribunal’s findings under Sub-Issue 1, the onus rests with the Applicant to establish that the two branches of the Leave Test have been met. While the Tribunal is not dismissive of the concerns that the Applicant has noted on Sub-Issue 3, a statement of concerns unsupported by other evidence falls short of meeting this onus. For this reason, the Tribunal finds that the Applicant has not established that either branch of the Leave Test has been satisfied based on this list of concerns.
Sub-Issue 4: Recommendations for changes to Conditions 1 and 2 of the ECA
43Conditions 1(1) and 2 of the ECA state:
- The Company shall:
(1) replace by not later than twelve (12) months from the date of this Approval, the No. 2 fuel oil-fired burner with a new burner as outlined in the Acoustic Assessment Report;
- The Company shall restrict the operation of the Equipment to the daytime hours from 7 a.m. to 7 p.m.
44Regarding Condition 1(1), the Applicant asserts that the oil-fired burner should be replaced no later than the 2016 annual start up.
45The Director submits that the 12 month deadline for the replacement of the No. 2 fuel oil-fired burner was determined by discussions between the Noise Engineer and the Approval Holder. The Director states that the original proposal was for replacement within three years. The Director relies on the Noise Engineer’s opinion that replacement within 12 months is acceptable, further submitting that the Applicant has not provided any scientific rationale as to why this is unreasonable. The Approval Holder did not make a specific submission on this issue.
46Regarding Condition 2, the Applicant asserts that the Company should be required to restrict the operation of the equipment to the daytime hours of 7 a.m. - 5 p.m., Monday- Friday, and that the equipment should not operate on weekends and/or statutory holidays. In addition, the Applicant maintains that operations should be restricted to 60 calendar days per year.
47The Director states that the restrictions in the ECA (7 a.m. – 7 p.m., 7 days a week) are based on MOECC’s NPC-300. The Director submits that, as this is a site-specific approval, and not a portable approval, there is no need to restrict operation to 60 days per year, since the Facility has undergone site-specific assessment, and the Director’s decision to issue the ECA included a local consultation process. The Director submits that the Applicant has not provided a rationale as to why greater restrictions are warranted from an environmental perspective. The Director also relies on the opinion of Ms. Vala, the Air Engineer who states that:
There is also no need to limit the total number of operating days to 60 days in a year, because the application was not for a portable approval. The application incorporated site specific considerations and confirmed that the Facility could operate within regulatory standards, and the local community had an opportunity to comment and those comments were considered by the Ministry.
Findings on Sub-Issue 4
48As previously noted the onus rests on the Applicant to establish that the two branches of the Leave Test have been met. Here, the Applicant has provided only a statement of its position. The Applicant has not provided any evidence or convincing rationale to establish that the Leave Test has been met. Consequently, the Tribunal finds that the Applicant has failed to do so with respect to this sub-issue.
Sub-Issue 5: Facility location and setback distances
49The Applicant notes that a “Report” identifies that the area where the Facility is located is a class three rural area. In support of its Leave Application, the Applicant filed documentation which indicates that the MOECC’s District Manager stated that he did not believe that the Site was a good location for a permanent asphalt plant. The Applicant then points to an email sent by the Director dated August 28, 2015 in which the Director states that the District Manager would need to:
delete (or at least retract) his opinions. District comments must be limited to factual information and cannot contain opinions that contradict the results of EAB’s [Environmental Assessment Branch] science based technical review.
50However, the Director expressly addressed this concern in paragraph 12 of his affidavit filed as part of the Director’s response to the Leave Application. Paragraph 12 states:
As part of the application review process, the MOECC's senior review engineers consulted with the local District Office of the MOECC to solicit input relating to the application and local issues. In addition to factual information about the site, the local Environmental Officer ("EO"), Brent Trach, provided opinions that were outside of his area of expertise. The EO misinterpreted certain aspects of technical reports submitted in support of the proposal, and provided unsubstantiated opinions that contradicted the conclusions resulting from the senior review engineers' science based review. After the senior review engineers provided additional clarification to respond to concerns expressed by the EO, he acknowledged his mistakes and revised his comments. The Applicant mistakenly refers to him as the District Manager on p. 5 of its revised application. He is not the District Manager. Moreover, I am not aware of any concerns raised by the District Manager of the MOECC with regards to this application.
51The Applicant states that the environmental compliance approval issued to Miller for its portable asphalt plant requires a setback distance of 1000 metres (“m”) from homes, but that the setback distance under the ECA is only 315 m. The Applicant observes that there is a large discrepancy between these two setback distances, and submits that “common sense predicts a greater set-back distance would be required for one that is permanent”.
52In response, the Director relies on the Ms. Vala’s opinion who states that:
Because this is a site specific and not a portable approval it does not need to include minimum setback distances or restrictions on the total number of days of operation per year. Minimum separation distances to receptors are not necessary because the Company has conducted site specific dispersion modelling that has confirmed regulatory limits are not exceeded at the property line or anywhere beyond the property line. Accordingly, the air pollutant receptors are assumed to be everywhere at or beyond the property line of the Facility.
53The Director also relies on the opinion of Mr. Merza who stated:
Setback distances are not required for this site-specific ECA, since unlike a portable ECA, this proposal was evaluated on the basis of predicted sound levels at specific points of reception. For a portable ECA, setback distances are required since there is no site-specific assessment.
54The Approval Holder did not provide a specific submission in response.
Findings on Sub-Issue 5
55The Tribunal notes that the determination of an appropriate setback distances requires a technical analysis. The Air and Noise Engineers have provided such evidence. The Applicant has not filed any technical or expert opinion evidence, or other cogent evidence, to contradict the opinions of the Air and Noise Engineers, citing only a lay perspective that common sense dictates that the setback distances are inadequate. Moreover, the Applicant has not specifically addressed what the impact of the shorter setback would be in the context of the two branches of the Leave Test.
56For the above reasons, the Tribunal finds that the Applicant has not established that either branch of the Leave Test has been satisfied based on its concerns respecting setback distances and geographical location of the Facility.
Sub-Issue 6: Alleged history of Approval Holder’s past non-compliance
57The Applicant submits:
Precedent has proven that Miller Paving Limited has no regard for the relevant law. A statement from Ministry of the Environment District Manager states in black and white noncompliance has been an issue in the past and remains an issue to this day. Documentation received for this leave to appeal application reveals from Ministry sources that IEB has been notified due to past and continuous non-compliance and no regard for the relevant law. Proponent requested that IEB "not actively pursue this investigation." Yet, the consequence of these actions is a new Environmental Compliance Approval. In our experience with Miller Paving Limited, there is little regard for the relevant law, little regard for environmental rules and practices and little regard for the community around them. Proponent claims no complaints have ever been made with regard to the hot mix asphalt plant, when in fact area residents have been complaining about odor, emissions, smog and dust for decades.
58The Director responds:
… the evidence demonstrates that any concerns related to past performance of asphalt plants at the Site will be addressed through the new approval. The asphalt plant approved under the new ECA includes much more effective emissions control equipment than previously approved for the site (i.e. baghouse vs. wet scrubber). Moreover, the ECA contains much more stringent terms and conditions than the previous ECAs for this Site. The Senior Review Engineer was aware of concerns related to past performance that were raised during the public consultation process, and it is her opinion that this ECA will result in a reduction in the discharge of contaminants as compared to asphalt plants previously operated by Miller at this Site. Furthermore, it is her opinion that the plant can be operated, pursuant to the ECA, within all regulatory limits and in a manner that prevents any adverse effects.
59The Approval Holder submits that this alleged concern is not relevant to this Leave Application.
Findings on Sub-Issue 6
60In this case, the evidence of non-compliance provided by the Applicant does not provide precise particulars of the alleged misconduct and how such non-compliance evidence would have altered the decision of the Director. As well, there is insufficient evidence for the Tribunal to determine whether any history of non-compliance by the Approval Holder would be a reliable indicator that the Approval Holder would fail to comply with this ECA in the future, given the particular conditions contained in it. It must also be remembered that the Applicant must link the issue of non-compliance specifically with the Leave Test. In other words, the nature and extent of the presumed future non-compliance must be such that it appears that, in light of such future non-compliance, there is good reason to believe that no reasonable person could have made the decision to issue the ECA, and that it appears that the decision to issue the ECA could result in significant harm to the environment. Again, the Tribunal finds that the evidence provided by the Applicant is insufficient to substantiate that the two branches of the Leave Test have been met on this sub-issue.
Sub-Issue 7: The wet scrubber caused soil and/or water contamination in the past
61The Applicant asserts that the Approval Holder’s application for the ECA for the permanent hot-mix asphalt plant was not received until the District Manager, at the Applicant’s request, investigated the existing portable asphalt plant operation. The Applicant further asserts that, upon investigation, the Approval Holder could not provide proper documentation for the sewage works that serves the wet scrubber. The Applicant submits that this fact now raises questions about soil and/or water contamination. The Applicant also maintains that: “Operations were ceased due to non-compliant construction and yet construction continued.”
62The submissions of the Director and the Approval do not specifically respond to the Applicant’s submission on this sub-issue.
Finding on Sub-Issue 7
63The Tribunal notes that the Applicant only questions whether soil and/or water contamination has occurred in the past. The Applicant has not provided evidence that such contamination has occurred, nor has the Applicant provided any analysis or evidence to suggest that conditions of the current ECA are insufficient to address any concerns regarding soil and/or water contamination. In addition, the evidence of the Director indicates that the replacement of a wet scrubber with a baghouse eliminates the production of wastewater and reduces the potential impacts on local water resources. As such, the Tribunal finds that the Applicant has provided insufficient evidence to establish that either branch of the Leave Test has been met based on this ground.
DECISION
64The Tribunal finds that the Applicant has not satisfied the test for leave to appeal found in s. 41 of the EBR, and, therefore, the application for leave to appeal is dismissed.
Application for Leave to Appeal Dismissed
“Heather McLeod-Kilmurray”
HEATHER McLEOD-KILMURRAY
MEMBER
“Dirk VanderBent”
DIRK VANDERBENT
VICE-CHAIR
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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