Environmental Review Tribunal

Tribunal de l’environnement

ISSUE DATE: December 07, 2018

CASE NO.: 18-043

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicant: Hai Mei (Linda) Hong

Instrument Holder: Ingram Asphalt Inc.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of leave to appeal: Amended Environmental Compliance Approval under section 20.3 of the Environmental Protection Act, R.S.O. 1990, c. E.19, for the operation of a batch mix asphalt manufacturing facility

Reference No.: 6482-AF4SDA

Property Address/Description: 103 Ingram Drive

Municipality: City of Toronto

ERT Case No.: 18-043

ERT Case Name: Hong v. Ontario (Environment, Conservation and Parks)

Heard: In writing

APPEARANCES:

Parties

Counsel⁺/Representative

Hai Mei (Linda) Hong

Self-represented

Director, Ministry of the Environment, Conservation and Parks

Katie Clements⁺

Ingram Asphalt Inc.

Harry Poch⁺

ORDER DELIVERED BY MARCIA VALIANTE

REASONS

Background

1This Order addresses a request to review a previous decision of the Environmental Review Tribunal (“Tribunal”).

2On November 9, 2018, Hai Mei (Linda) Hong filed a written request for review of the decision issued November 7, 2018 (“Leave Decision”), in which the Tribunal Member (“Leave Panel”) denied Ms. Hong’s application for leave to appeal the decision of Jeffrey McKerrall, Director, Ministry of the Environment, Conservation and Parks (“MECP”) to issue Notice No. 2 (“ECA Amendment”) to Environmental Compliance Approval No. 6482-AF4SDA (“ECA”). The ECA Amendment was issued on August 23, 2018 to Ingram Asphalt Inc. (“Ingram”) and relates to the operation of a batch hot mix asphalt (“HMA”) plant located at 103 Ingram Drive, in the City of Toronto (“Ingram facility”). Ms. Hong resides in and manages a commercial building on a property adjacent to the Ingram facility.

3Previously, in 2016, when a different MECP Director issued the ECA to Ingram, replacing an earlier approval, Ms. Hong, Ernie Lustig and Golfdale Construction Limited (“Golfdale”) filed applications for leave to appeal the decision to issue the ECA. Following a written hearing, the Tribunal dismissed the applications (see: Hong v. Ontario (Environment and Climate Change), 2017 11497 (ON ERT)). Ms. Hong, Mr. Lustig and Golfdale then filed motions requesting review of that decision and, in an Order dated April 25, 2017, the Associate Chair of the Tribunal dismissed those motions (see, Hong v. Ontario (Environment and Climate Change), 2017 25359 (ON ERT)). Ms. Hong alone among the applicants then filed an application for judicial review of the Tribunal’s two decisions in the Divisional Court and, on March 20, 2018, the Court issued its decision dismissing her application (see: Hong v. Minstry of the Environment and Climate Change, 2018 ONSC 1127).

4With respect to Ms. Hong’s application in this proceeding, for leave to appeal the ECA Amendment, the Leave Decision was issued by the Leave Panel following a written hearing conducted pursuant to ss. 38 to 41 of the Environmental Bill of Rights, 1993 (“EBR”), s. 17 of Ontario Regulation 73/94, and Rules 46 to 60 of the Tribunal’s Rules of Practice (“Rules”). In the Leave Decision, the Leave Panel found that Ms. Hong had not met the first branch of the EBR leave test in that she had not demonstrated that it appears there is good reason to believe that no reasonable person, having regard to relevant law and policies, could have made the decision to issue ECA Amendment. Given this finding and the statutory requirement that both branches of the EBR leave test must be met for leave to be granted, the Leave Panel did not go on to address the second branch of the EBR leave test. The application was dismissed (see: Hong v. Ontario (Environment, Conservation and Parks), 2018 107741 (ON ERT)).

5For the reasons set out below, the Tribunal concludes that it is not advisable to review the Leave Decision.

Issues

6The issue is whether it is advisable to grant the request to review the Leave Decision.

Relevant Legislation and Rules

Environmental Protection Act (“EPA”)

7Section 14 of the EPA is raised in the submissions of the Parties:

Prohibition, discharge of contaminant

14 (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.

Tribunal Rules

8Rule 234 applies to the admission of new evidence:

NEW EVIDENCE

234. The Tribunal shall not admit new evidence unless it decides that the evidence is material to the issues, the evidence is credible and could affect the result of the Hearing and either the evidence was not in existence at the time of the Hearing or, for reasons beyond the Party’s control, the evidence was not obtainable at the time of the Hearing.

9Rules 235 to 242 apply to requests for review of Tribunal decisions and orders:

REVIEW OF ORDERS AND DECISIONS (RECONSIDERATION)

235. A Party may request a review of an order or decision.

236. In deciding whether it is advisable to review all or part of its order or decision, the Tribunal may consider any relevant circumstances including:

(a) whether the Tribunal acted outside its jurisdiction;

(b) whether there is a material error of law or fact such that the Tribunal would likely have reached a different decision but for that error;

(c) whether there is new evidence admissible under the conditions of Rule 234;

(d) the extent to which any person or any other Party has relied on the order or decision;

(e) whether the order or decision is under appeal or is the subject of a judicial review application; and

(f) whether the public interest in finality of orders and decisions is outweighed by the prejudice to the requester.

239. The Tribunal may grant the motion in whole or in part, based on the material filed and/or the record from the original Hearing, and may make procedural directions for the review.

Discussion, Analysis and Findings

Submissions of the Parties

10Ms. Hong submits that the Ingram facility has caused, and continues to cause, “adverse effects” on the users of surrounding lands and cannot operate in compliance with s. 14 of the EPA despite the terms of the ECA Amendment. She submits that the Director did not adequately consider the application of s. 14 of the EPA before issuing the ECA Amendment and that no reasonable person would allow the Ingram facility to operate in this location. Ms. Hong identifies the adverse effects from the Ingram facility as toxic emissions, dust, odour, noise and vibration. She requests the Tribunal to apply s. 14 of the EPA to reduce annual production from the Ingram facility to zero.

11The Director submits that in determining whether the review of a decision is advisable, the Tribunal considers only whether there were errors in the decision that meet the criteria in Rule 238, so as to warrant a review. The Director acknowledges that the Tribunal applies a lower threshold in cases such as this one where leave to appeal was refused, citing Miller v. Ontario (Ministry of the Environment), [2008] O.E.R.T.D. No. 27 (“Miller”), but argues that even on a lower threshold, Ms. Hong has not met any of the criteria in Rule 238. The Director refers to Tribunal cases in which it was stated that the Tribunal does not assess whether the decision was “correct” and does not grant a review “simply because a different outcome could have been reached by another panel of the Tribunal” (see: Concerned Citizens of Brant v. Ontario (Environment and Climate Change), 2016 35404 (ON ERT) (“CCOB”), at para. 67). The Director submits that the review process should not be used as an opportunity for a party to re-argue its case.

12The Director submits that Ms. Hong has provided no evidence that the Leave Panel acted outside of its jurisdiction or committed a material error of law or fact in determining the leave application. According to the Director, Ms. Hong’s materials filed as part of her request for review merely reiterate her original position on her leave application, which the Leave Panel already assessed and found did not meet the EBR leave test. The Director argues that the recent videos of operations at the Ingram facility provided by Ms. Hong disclose no new information about the Ingram facility that was not before the Leave Panel when the leave application was determined.

13Ingram submits that Ms. Hong has not alleged that the Leave Panel acted outside of its jurisdiction or committed a material error of fact, but only alleges that the Ingram facility cannot comply with s. 14 of the EPA and therefore the Director should not have granted the Ingram facility approval to operate. Ingram argues that the Leave Panel made no error of law in coming to its decision to deny the leave application. Further, Ingram submits that there has been no “new evidence” provided that is material, credible and could have affected the result of the decision, but the visual evidence provided by Ms. Hong is no different from what she submitted in support of her leave application. Ingram also refers to Rule 238(f), “whether the public interest in finality of orders and decisions is outweighed by the prejudice to the requester”, and submits that the ECA Amendment is time limited, as it addresses the verification of new emission control technology; thus, the public interest in the finality of the decision outweighs any short term impact on Ms. Hong.

Analysis and Findings

The Tribunal’s Approach to Reviews

14Under the Tribunal’s Rules, a review of an order or decision is conducted in two steps: the first step is to determine whether a review is “advisable”; and, if so, the second step is to conduct the review itself.

15The Tribunal has discussed its authority to review an order or decision in a number of cases, noting that it is a discretionary power that “should only be exercised in exceptional circumstances” (Trent Talbot River Property Owners Assn. v. Ontario (Director, Ministry of the Environment), [2006] O.E.R.T.D. No. 16 (“Trent Talbot”), at para. 44). In Baker v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 55, the Tribunal stated, at paras. 17 and 18, that its role in determining whether a review is advisable

…is not to assess whether the decision is ‘correct’, but to determine

whether there were errors that meet the criteria set out in Rule [238], so as to warrant a review. The review process should not be used as an opportunity for a party to reargue the case. A panel hearing a motion to review should refrain from granting a review simply because a different outcome would have been reached by another panel of the Tribunal (Trent Talbot, para. 41).

This means that the Tribunal should not re-weigh the evidence to see if a different decision could have been reached, but should review the record and the submitted material only with a view to determining whether the original panel made a material error that warrants a review in the circumstances.

16In making its determination, the Tribunal considers all relevant circumstances, including in particular the matters set out in Rule 238. As stated by the Tribunal in CCOB, at para. 80:

Generally speaking, the first three considerations in Rule 238 are examples of situations where the Tribunal will consider ordering a review of a hearing. The last three considerations “are not grounds for review per se, but rather relevant considerations for a panel hearing a Motion to review to examine in determining whether a review is warranted” (Trent Talbot at para. 191)… Advisability is to be determined in the context of all relevant factors listed in Rule 238 and any other relevant considerations.

17In Miller, the Tribunal held (at para. 20) that, in circumstances where there is no further right to appeal and the motion to review is a party’s final option, the Tribunal “should adopt a lower threshold in deciding whether it is advisable to grant a motion to review. The factors to be considered under Rule [238] remain the same, but the Tribunal’s approach to deciding on the advisability of a review should be different.”

The ECA Amendment

18It is helpful to understand the ECA Amendment in the context of the history of the Ingram facility. It appears that the facility has been in operation for many years and that numerous public complaints about emissions from the Ingram facility were repeatedly made to the City of Toronto and the MECP. In 2009, the MECP ordered Ingram to apply for a new approval, which Ingram did in 2012, eventually resulting in issuance of the 2016 ECA. In 2012, Ingram was prosecuted and convicted of four offences under the EPA due to its dust emissions. As described in the Leave Decision, it appears that the purpose of the 2016 ECA was to bring the Ingram facility into compliance with evolving air emission standards and noise guidelines and that the ECA included conditions requiring Ingram to carry out specific actions. These actions included monitoring of emissions, implementation of noise abatement, source testing for total suspended particulate matter (“TSPM”), benzo(a)pyrene (“BaP”), odour, crystalline silica and nitrogen oxides, and development of a plan for the mitigation of opacity, odour and fugitive dust emissions.

19Since the ECA was issued, it appears that Ingram has made efforts to comply with the actions required by the ECA conditions. There have been two amendments to the ECA that flowed from those actions. Notice No. 1 was issued in 2017 and addressed noise issues. No appeal and no application for leave to appeal was brought with respect to Notice No. 1.

20Notice No. 2 is the ECA Amendment that is the subject of this proceeding. It resulted because the source testing carried out in accordance with the ECA showed that the existing equipment at the Ingram facility was not capable of meeting the MECP standard for BaP. The ECA Amendment requires: installation of a vapour recovery system (“VRS”) to control fugitive emissions from truck loading operations, HMA storage silos and HMA mixing and transfer operations; modifications to liquid asphalt cement storage tanks to install vapour condensers; modifications to the dust collection system; start-up/commissioning/optimization of the operation of the new VRS and dust collection system; and source testing to determine the emissions of odour, TSPM and BaP with the new systems operating. In addition, the annual production rate is reduced to 67,000 tonnes (from 100,000 tonnes) unless the testing verifies compliance with the BaP standard. The ECA Amendment also requires Ingram to submit within 180 days a revised application to amend the ECA, supported by updated emission dispersion modelling and acoustic assessment reports, failing which the ECA will be revoked.

Ms. Hong’s Leave Application

21As part of the materials she filed, Ms. Hong submitted that it was a mistake to issue the ECA because the Ingram facility cannot comply with MECP standards. However, as noted above, Ms. Hong and others applied for leave to appeal the ECA in 2016 and those applications were refused. Thus, the ECA is not itself the subject of Ms. Hong’s leave application in this proceeding; rather, only the ECA Amendment is, and in the ECA Amendment, Ms. Hong focused her application only on Condition 2. Condition 2 reads:

The Company shall limit the annual production rate to 67,000 tonnes of produced HMA, unless the Company provide (acceptable to the Ministry and prepared in accordance with Reg. 419/05 requirements) a verification of compliance with Schedule 3 annual Benzo(a)pyrene standard. The Company shall keep all production records to verify up to date production output of HMA.

22In her leave application, Ms. Hong submitted that no reasonable person could have made the decision to issue the ECA Amendment on several grounds, specifically: that the Director did not give due consideration to the adverse effects caused by the Ingram facility, given that it is impossible for the Ingram facility to operate at a level of “no adverse effects” as required by s. 14 of the EPA; that the Director did not apply MECP Guideline D-6, which requires a minimum separation distance between sensitive land uses and industrial operations; and that the Director ignored the City of Toronto’s zoning by-laws by permitting the Ingram facility to operate despite it not being a permitted use.

23In support of her leave application, Ms. Hong filed an Applicant Statement and a number of documents and visual evidence. In response, the Director filed affidavits from two MECP staff, the Senior Air Review Engineer and the Director himself. Ingram filed affidavits from two environmental consultants and the documents that had been submitted to, and relied on by, the Director as part of the decision to issue the ECA Amendment.

The Leave Decision

24In the Leave Decision, the Leave Panel outlined the evidence and the submissions of each Party on each of the three central grounds raised by Ms. Hong. With respect to Ms. Hong’s claim that the Ingram facility cannot comply with s. 14 of the EPA, the Leave Panel noted Ms. Hong’s reliance solely on past complaints about operations at the Ingram facility and past violations of MECP standards and stated: “…the Tribunal agrees with the MECP and Ingram that previous events do not provide evidence that the ‘new instrument …will fail to prevent adverse effects.’” After reviewing the evidence as a whole, the Leave Panel agreed with the submissions of the Director and Ingram and found the following:

a. the terms of the 2016 ECA required source testing to demonstrate the Ingram facility’s compliance with MECP standards;

b. source testing was done and demonstrated that the existing equipment at the Ingram facility could not meet the BaP standard;

c. the ECA Amendment was adopted to require specific actions to bring the Ingram facility into compliance with the BaP standard;

d. the actions require installation and operation of the VRS, which constitutes the “best available control technology” in the asphalt industry, to capture and reduce BaP, odour and dust emissions to levels within the MECP standards;

e. Condition 2 to the ECA Amendment reduces annual production which operates as a “contingency plan” in case the VRS fails to operate as expected; and

f. the ECA Amendment adds further conditions with respect to commissioning, maintenance and verification of the performance of the VRS.

25The Leave Panel agreed with the Director’s evidence in finding that the ECA Amendment “is an appropriate next step in fulfilling the conditions of the 2016 ECA and implementing the BaP Abatement Plan.” The Leave Panel found that the conditions in the ECA Amendment are more stringent than those in the ECA and concluded from the evidence that it would have been unreasonable for the Director not to have issued the ECA Amendment in these circumstances.

26The Leave Panel found that the evidence demonstrates that the Director “had regard for the relevant laws and policies, and … had adequate information upon which to base his decision to issue” the ECA Amendment. The Leave Panel further found that the terms of the ECA Amendment “strengthen the ability of the 2016 ECA to meet its objectives in the area of environmental compliance … [and] demonstrate that the Director considered the emissions Ms. Hong is concerned about and acted reasonably in addressing them.” The Leave Panel also noted that the issuance of the ECA and the ECA Amendment did not relieve the Ingram facility from having to comply with s. 14 of the EPA.

Findings

27It is important to repeat that, in considering whether it is advisable to review the Leave Decision, the Tribunal does not re-weigh the evidence and reach its own decision on whether leave to appeal should be granted. Rather, the Tribunal is concerned only with whether there are circumstances sufficient to warrant a review of the Leave Decision.

28At this first step of the two-step review process, it must be determined whether a review of the Leave Decision is advisable. Similar to the circumstances in Miller, because the Leave Decision refused leave to appeal and there is no further appeal provided for in the legislation, the Tribunal will consider the circumstances and the question of whether a review of the Leave Decision is advisable on a lower threshold.

29The major challenge in determining this question is that Ms. Hong has not identified any specific errors in the Leave Decision. She has not alleged that the Leave Panel acted outside of its jurisdiction or committed a material error of fact or law. Rather, Ms. Hong has submitted only general statements about the operations of the Ingram facility, repeating her position that the Ingram facility is unable to comply with s. 14 of the EPA. (She has not referred to the other two grounds raised in her leave application.) In addition, she provided recent videos of the Ingram facility to support her position.

30To a large extent, Ms. Hong’s submission could be seen as merely an attempt to re-argue her case. Nevertheless, the Tribunal has considered her submission as a claim that the Leave Decision was wrong because of a material error made in assessing and applying s. 14 of the EPA in the context of the Director’s decision and the test for leave to appeal. Under Rule 238(b), if it is found that an error was made, it must then be determined whether the Leave Panel would likely have reached a different decision but for that error.

31The Leave Decision clearly demonstrates that the Leave Panel understood that the onus in leave to appeal cases is on the person seeking leave to establish an evidentiary foundation supporting the claim that no reasonable person could have made the decision at issue. The Leave Panel carefully reviewed all of the evidence provided by Ms. Hong, the Director and Ingram. The Leave Panel made findings that are grounded in, and supported by, the evidence provided. There is nothing in the Leave Decision or the materials provided to suggest that relevant evidence was ignored or that the Leave Panel made an error in assessing the appropriate weight to be given to any part of the evidence. Thus, even applying a lower threshold to the question of whether a review is advisable, the Tribunal finds that there is no indication in any of the materials reviewed that the Leave Panel made an error of fact, let alone an error that would have made a material difference to the outcome of the proceeding.

32The Leave Decision also clearly demonstrates that the Leave Panel understood the EBR leave test and reviewed the evidence in light of the appropriate test. There is nothing in the Leave Decision or the materials provided to suggest that any relevant laws or policies were ignored or that the Leave Panel erred in any way in applying the EBR leave test to the facts as found. The Leave Decision indicates that the Leave Panel was alive to Ms. Hong’s concern about Ingram’s compliance with s. 14 of the EPA and evaluated the reasonableness of the Director’s decision to issue the ECA Amendment on that very ground. Thus, even applying a lower threshold, the Tribunal finds that there is no indication in any of the materials reviewed that the Leave Panel made any error of law, material or otherwise.

33The only other possible ground for granting a review in this case is Rule 238(c), which provides that the Tribunal may consider “whether there is new evidence admissible under the conditions of Rule 234”. Rule 234 provides that new evidence shall not be admitted unless the evidence is material, credible and could affect the result, and either was not in existence or was not obtainable at the time of the hearing.

34Ms. Hong has provided the Tribunal with videos showing the recent operation of the Ingram facility. With her leave application, Ms. Hong provided visual evidence and a detailed log of her observations of the Ingram facility’s operations, noting in particular emissions, noise and vibration, over the month of October 2018. The Leave Panel considered this evidence as part of the evidence as a whole and found that Ms. Hong’s reliance on past emissions and complaints did not meet the EBR leave test. The Leave Panel emphasized that the purpose of the ECA Amendment is to improve existing operations and ensure that the Ingram facility comes into compliance with MECP requirements and that evidence of past emissions does not prove that the steps required by the ECA Amendment will be ineffective when they are implemented. The new videos of operations in early November 2018 are essentially the same type of evidence that Ms. Hong provided with her leave application, that was considered by the Leave Panel, and that did not materially influence the Leave Panel’s conclusions. Thus, even if the videos had been in existence at the time of the leave hearing, they could not have affected the outcome of the hearing. As a result, the Tribunal finds that this evidence does not meet the test for the admission of “new evidence” in Rule 234.

Conclusion

35The Tribunal finds that Ms. Hong has failed to demonstrate that any material error of fact or law was made by the Leave Panel hearing her leave application. Her request for review did not identify any specific error in the Leave Decision and was in essence a re-iteration of the position she put forward unsuccessfully before the Tribunal and the Divisional Court in 2017 regarding the ECA. There is no doubt that Ms. Hong continues to have concerns with the operation of the Ingram facility. However, the scope of the Leave Decision was limited to the Director’s decision to issue the ECA Amendment, and was not concerned with the ECA itself, which had been considered in the earlier proceedings. In order to conclude that review of the Leave Decision is advisable, the Tribunal must have evidence that the Leave Panel that rendered the Leave Decision made a material error or that there is new evidence that could affect the result, such that a review is warranted. No such evidence was provided here; thus, the Tribunal concludes that a review of the Leave Decision is not advisable.

ORDER

36The Tribunal refuses Ms. Hong’s request to review the Leave Decision.

Request to Review Decision Refused

“Marcia Valiante”

MARCIA VALIANTE

VICE-CHAIR

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Environmental Review Tribunal

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