Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
October 11, 2016
CASE NOS.:
16-048 and
16-052
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Appellant:
Concerned Citizens of Brant (File No. 16-048)
Appellant:
Corporation of the County of Brant
(File No. 16-049)
Instrument Holder:
CRH Canada Group Inc.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Permit to Take Water from Paris Pit issued under section 34.1 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended
Reference No.:
7115-9VVLJW
Property Address/Description:
Lot 27, Concession 2
Municipality:
Township of South Dumfries
Upper Tier:
County of Brant
ERT Case No.:
16-048
ERT Case Name:
Concerned Citizens of Brant v. Ontario (Environment and Climate Change)
PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended
Appellant:
Concerned Citizens of Brant (File No. 16-052)
Appellant:
Corporation of the County of Brant
(File No. 16-053)
Instrument Holder:
CRH Canada Group Inc.
Respondent:
Director, Ministry of the Environment and Climate Change
Subject of appeal:
Environmental Compliance Approval issued under section 20.3 of Part II.1 of the Environmental Protection Act, R.S.O. 1990, c. E. 19 for the establishment, use and operation of sewage works for the collection, transmission, treatment and reuse of wash water effluent from an aggregate washing operation
Reference No.:
1400-9VNPVY
Property Address/Description:
Lot 26, 27, 1, 2 & 3, Concession 3, 2, WGR
Municipality:
Township of South Dumfries
Upper Tier:
County of Brant
ERT Case No.:
16-052
ERT Case Name:
Concerned Citizens of Brant v. Ontario (Environment and Climate Change)
Heard:
September 22, 2016 in Paris, Ontario
APPEARANCES:
Parties
Counsel
Concerned Citizens of Brant
Ramani Nadarajah and Monica Poremba (student-at-law)
Corporation of the County of Brant
Paula Lombardi
Directors, Ministry of the Environment and Climate Change
Nicholas Adamson
CRH Canada Group Inc.
Jonathan W. Kahn and Ravi Amarnath
ORDER DELIVERED BY HEATHER GIBBS
REASONS
Background
1On October 29, 2015, Belinda Koblik, Director, Ministry of the Environment and Climate Change (“MOECC”), issued Permit to Take Water No. 7115-9VVLJW (“PTTW”) to CRH Canada Group Inc. (“CRH”, or its division Dufferin Aggregates (“Dufferin”)). Also on October 29, 2015, Fariha Pannu, Director, MOECC issued Environmental Compliance Approval No. 1400-9VNPVY (“ECA”) to CRH. Both the PTTW and the ECA relate to a proposed aggregate washing operation and sewage works at the Dufferin Aggregates Paris Pit in the Township of South Dumfries, County of Brant.
2On April 14, 2016, the Concerned Citizens of Brant (“CCOB”) and the Corporation of the County of Brant (together, “Appellants”) filed appeals of the decisions of Directors Koblik and Pannu with the Environmental Review Tribunal (“Tribunal”). The Tribunal had granted the Appellants leave to appeal the Directors’ decisions in part under the Environmental Bill of Rights, 1993 on March 31, 2016.
3The aspects of the decisions for which the Appellants were granted leave to appeal are outlined in para. 119 of the leave decision (see Concerned Citizens of Brant v. Ontario (Ministry of the Environment and Climate Change), [2016] O.E.R.T.D. No. 12):
The Tribunal finds that it appears that there is good reason to believe that no reasonable person could have issued the PTTW and ECA in regard to the following specific aspects of the decisions:
Condition 3.3 of the PTTW, which does not specify whether the water taking permitted for dust suppression is in addition to the maximum amounts set out in condition 3.4a.
Condition 3.4b of the PTTW, which does not clarify how often Dufferin may revert to the maximum rate of water taking in Condition 3.2 “for one month following removal of sediment from the settling pond”.
Condition 3.6 of the PTTW, which states that “[w]ithin 60 days following two full years of operation, the Permit Holder shall submit to the Director a report evaluating water taking needs and making recommendations regarding future water needs and potential changes to the permitted rates and volumes.” This means that the permitted water taking for almost eight years of the PTTW is unknown and will not be known for over two years.
The lack of clear and specific objectives for the monitoring requirements in the PTTW.
Condition 4.7 of the PTTW (Trigger Mechanism and Contingency Plan) and Condition 5 of the ECA (Contingency and Pollution Prevention Plan). These Plans are not available and will only be subjected to scrutiny by the MOECC and the Proponent, after the instruments have been granted.
The ECA Contingency and Pollution Prevention Plan, which does not contain a trigger mechanism.
Condition 4.8 of the ECA, which does not specify future uses of sediment for on-site rehabilitation.
4A pre-hearing conference took place on September 22, 2016 in Paris, Ontario.
Discussion, Analysis and Findings
5At the pre-hearing conference, Ramani Nadarajah, counsel for CCOB, undertook to gather, organize and provide the Tribunal with a list of individuals requesting presenter status in these appeals. Ms. Nadarajah agreed to provide the list, with contact information, by October 28, 2016 along with the presenter statements that will be filed with the Tribunal and copied to all parties. The other parties had no objection to the requests for presenter status or to proceeding in this manner, although they reserved their rights to object to the content of any presentation that is outside the scope of the appeals as described in the Tribunal’s leave decision of March 31, 2016.
6Counsel for all parties presented consent dates to the Tribunal for the hearing of these appeals, and the steps leading up to the hearing, as set out below.
ORDER
7The Tribunal makes the following procedural directions, in accordance with the following schedule:
October 17, 2016
Exchange among parties of relevant documents that have not already been provided under the leave to appeal process
October 28, 2016
Joint issues list to be provided to the Tribunal
October 28, 2016
Appellants’ witness statements, including all documents to be relied upon by the witnesses, to be filed with the Tribunal and copied to all parties
October 28, 2016
Counsel for the CCOB to file with the Tribunal and copy all parties with:
list of all presenters, with contact information including email addresses; and
presenters’ statements
November 2, 2016 at 10 a.m.
Status update telephone conference call
November 26, 2016
Witness statements for Director’s and CRH’s witnesses, including all documents to be relied upon by the witnesses, to be filed with the Tribunal and copied to all parties
December 5, 2016
Reply witness statements from Appellants
December 12, 2016
Hearing begins
Opening statements and first witness by CCOB
December 13, 2016
Continuation of first CCOB witness
January 9 to 12, 2017
January 16 to 20, 2017
January 23, 24 and 27, 2017
January 30, February 1, 2, and 3, 2017
Hearing continues
8The hearing will commence on December 12, 2016 at 10 a.m. The location of the hearing is:
Council Chambers (Brant)
7 Broadway St. West
Paris, ON N3L 2S3
9Two evening sessions will be scheduled during the week of January 9, 2017, for the presenters’ presentations.
10Counsel have agreed to coordinate documents filed with the Tribunal to reduce duplication. Parties are reminded that two copies of documents should be filed with the Tribunal.
Procedural Directions Ordered
“Heather Gibbs”
HEATHER GIBBS
VICE-CHAIR
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