Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE:
September 17, 2019
CASE NO.:
19-059
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended,
Applicant:
Kerry Le Clair
Instrument Holder:
Revolution Landfill Acquisition GP Inc.
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
Issuance of an Amendment to Environmental Compliance Approval approved under section 20.03 Part II.1 of the Environmental Protection Act for a 12-month pilot program to process biosolids
Reference No.:
013-3734
Property Address/Description:
227-237 Brant Street
Municipality:
City of Hamilton
ERT Case No.:
19-059
ERT Case Name:
Le Clair v. Ontario (Environment, Conservation and Parks)
Heard:
In writing
APPEARANCES:
Parties
Counsel
Kerry Le Clair
Self-represented
Director, Ministry of the Environment, Conservation and Parks
Michael Malleson and Madeline Ritchie
Revolution Landfill Acquisition GP Inc.
Patrick G. Duffy
DECISION DELIVERED BY MARLENE CASHIN
REASONS
Background
1On July 16, 2019, Revolution Landfill Acquisition GP Inc. (“Revolution”) was issued an amendment to an Environmental Compliance Approval approved under s. 20.03 Part II.1 of the Environmental Protection Act, for a 12-month pilot program to process municipal de-watered biosolids (“Pilot Project ECA”). The Pilot Project ECA issued by Mohsen Keyvani, Director, Ministry of the Environment, Conservation and Parks (“MECP”) allows Revolution to process biosolids in a mobile processing facility to be located at 227-237 Brant Street, in Hamilton, Ontario.
2On August 6, 2019, under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”), Kerry Le Clair (“Applicant”) filed with the Environmental Review Tribunal (“Tribunal”) an application for leave to appeal the Director’s decision to issue the Pilot Project ECA. The application indicated that the Board of Directors of Environment Hamilton and seven other individuals are “co-signers” to the appeal application. No information was provided regarding how any of those additional persons meet the requirements for “standing” under s. 38(1) of the EBR to seek leave to appeal. As such, the issue of the Applicant’s standing, alone, will be considered in a separate section of this decision.
3The Applicant is seeking leave to appeal on four grounds, which she summarizes in part, as follows:
a reasonable person would not approve the amended ECA because the distance from the mobile site to the nearest residential dwelling is insufficient;
a reasonable person would give weighted consideration to the undeniable fact of cumulative impacts in the area of Hamilton where 237 Brant Street is located. The surrounding area already has a high concentration of waste facilities compared to any other of part of the city;
a reasonable person would deny the proposed ECA based on the fact that in the last three years, Terrapure has a poor track record for safety for which the company has been charged by the Ministry; and
a reasonable person can deduce from researching the effects of sewage sludge treatment on human health that the potential risks are alarming and adequate long-term analysis does not exist.
4For the reasons that follow, the Tribunal finds that the Applicant has not met the test for leave to appeal the Pilot Project ECA, and her application for leave to appeal is dismissed.
Relevant Legislation
5Environmental 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.
Overview
6The proposal for the Pilot Project ECA was described on the EBR Environmental Registry (“EBR Registry”) as follows:
This proposal is for an amendment to the existing Environmental Compliance Approval (Waste Disposal Site) No. A100143 which was issued for the use and operation of a waste disposal site with a total area of 1.9 hectares for the processing of non-hazardous solid waste and hazardous waste.
The total amount of waste and processed materials stored at the site does not exceed 8000 tonnes at any time. The site is currently permitted to operate 24 hours/day, 7 days a week, however the hours of operation during this demonstration will be limited to 12 hours per day from 7:00 am to 7:00 pm, 7 days per week.
The applicant is seeking an amendment to include dewatered municipal biosolids as an acceptable waste class for receipt at the site. The daily processing of biosolids will be limited to 75 tonnes per day and processes at the site will include loading the biosolids into feed hopper, applying lime and acid, mixing in Twin Auger Mixer. The finished material will be moved offsite to a customer for land application.
The site serves the Province of Ontario.
7Public consultation on the Pilot Project ECA began on September 11, 2018 and was open for 45 days, until October 26, 2018, during which time the Instrument Proposal Notice was posted on the EBR Registry, and 23 comments were received.
8The Notice of Decision posted to the EBR Registry on July 19, 2019 describes the Pilot Project ECA details in part, as follows:
The 12-month demonstration will involve receiving municipal, dewatered biosolids in specialized trailers to be immediately fed into Terrapure's Bioset processing equipment, approved under its own Environmental Compliance Approval No. 6303-4Q9J8G.;
The output from the Bioset process is a Canadian Food and Inspection Agency certified fertilizer, along with process wastewater which will be contained and shipped off-site for processing.
The demonstration will be limited to processing of 75 tonnes per day of biosolids from municipal sources. This is the equivalent of two incoming trucks per day of material. During the demonstration, the company will not receive any other wastes or conduct any other waste management operations at the site.
The company has developed best management practices to help minimize the potential for impacts from fugitive dust, odour and noise emissions. These practices have been included as conditions of the Environmental Compliance Approval.
A complaint response procedure is also being required to ensure that any complaints from the operation are logged and acted upon when received.
9Some explanation of the interplay between the Environmental Compliance Approvals referred to in this decision, as well as the companies referred to, will be helpful to understanding the Pilot Project ECA and its conditions. There seems to be no disagreement amongst the parties involved in the leave to appeal application as to the following:
Revolution, operating under the name Terrapure Environmental (“Terrapure”), is the owner and operator of the facility at 227-237 Brant Street in Hamilton, Ontario (“Brant Street Facility” or “Site”). Revolution discontinued waste management operations at the Brant Street Facility on February 18, 2014 and has not received any waste for transfer or processing since that time. Terrapure is also the owner and operator of a hazardous and liquid industrial waste transferring and processing site at 52 Imperial Street in Hamilton, Ontario (“Imperial Street Facility”).
Terrapure is the Instrument Holder of Environmental Compliance Approval Number A100143 (“Facility ECA”), which was issued to Revolution’s predecessor on December 19, 1990. The Facility ECA was subsequently amended with Notices of Amendment issued on June 20, 1991, August 28, 1992, June 9, 2000, October 26, 2007, March 28, 2008, and December 1, 2011. The Facility ECA was amended on July 16, 2019 to permit a 12-month biosolids processing pilot program using mobile waste processing equipment at the Brant Street Facility.
The operation of the mobile waste processing equipment is permitted under Environmental Compliance Approval no. 6303-4Q9J8G (“Mobile Unit ECA”), issued to Revolution’s predecessor, dated March 23, 2009 and Notices of Amendment dated November 15, 2011, and September 19, 2014.
Under condition 23 of the Mobile Unit ECA, the mobile waste processing equipment can only be operated at a site where waste is generated at that location, unless the site has an Environmental Compliance Approval that permits the site to receive approved waste. In this situation, the Facility ECA permits Terrapure to receive approved waste at the Brant Street Facility and the Mobile Unit ECA approves the equipment, specifically a Mobile Waste Processing Unit. The Pilot Project will operate under the two ECAs, referred to in this decision as the Pilot Project ECA.
Evidence
10The Applicant relies on the evidence set out in the materials submitted with her application for leave to appeal of August 6, 2019, which include:
A copy of the Pilot Project ECA;
A copy of the Environmental Registry posting: ERO 013-3734 (Notice of Decision);
Internet link to an October 25, 2018 news story from the Hamilton Spectator: “Hamilton residents raise a stink about sewage sludge recycling pitch” https://www.thespec.com/news-story/8986844-hamilton-residents-raise-a-stink-about-sewage-sludge-recycling-pitch/;
Internet link to comments regarding the Pilot Project on the Environmental Registry https://ero.ontario.ca/notice/013-3734/comments;
Internet links to two google map pages showing what is described by the Applicant as “examples of nearest residential occupancy, which highlights two multi-unit dwellings: 390 Sherman Avenue North https://www.google.ca/maps/dir/43.2641555,79.8333201/390+Sherman+Ave+N,+Hamilton,+ON+L8L+6N7/@43.2639656,79.8334972,19z/data=!4m9!4m8!1m0!1m5!1m1!1s0x882c9c0101ad9e4d:0x7635c6bd20c7c57b!2m2!1d-79.8328283!2d43.2639976!3e3 and 364 Sherman Avenue North https://www.google.ca/maps/dir/43.2636125,-79.8333542/43.2632931,-79.8331167/@43.2634047,-79.8354845,783m/data=!3m1!1e3!4m2!4m1!3e3;
Internet link to a December 14, 2017 news story from HamiltonNews.com: “Terrapure plant fined for emitting harmful gases” https://www.hamiltonnews.com/community-story/7994016-terrapure-plant-fined-for-emitting-harmful-gases/;
Internet link to a research article titled “Sewage Sludge (Biosolids) — land application, health risks, and regulatory failure” on the website Bioscience Resource Project https://bioscienceresource.org/sewage-sludge-biosolids-land-application-health-risks-and-regulation-2/;
Internet link to a May 1, 2013 journal article from Environmental Health Perspectives: “Land Application of Treated Sewage Sludge: Community Health and Environmental Justice” https://ehp.niehs.nih.gov/doi/10.1289/ehp.1205470;
Internet link to a 2002 journal article from New Solutions: “Investigation of Alleged Health Incidents Associated with Land Application of Sewage Sludges” http://cwmi.css.cornell.edu/Sludge/Newsolutions.pdf;
Internet link to a September 28, 2016 news article from Two Row Times: “Pros and cons of biosolids as fertilizer” https://tworowtimes.com/news/local/pros-cons-biosolids-fertilizer/;
Internet link to a June 28, 2002 research article from BMC Public Health: “Interactions of pathogens and irritant chemicals in land-applied sewage sludges (biosolids)” https://bmcpublichealth.biomedcentral.com/articles/10.1186/1471-2458-2-11;
Internet link to a September 2008 (updated March 2009) journal article from Cornell Waste Management Institute: “Case for Caution Revisited: Health and Environmental Impacts of Application of Sewage Sludges to Agricultural Land” http://cwmi.css.cornell.edu/case.pdf; and
Internet link to an April 22, 2016 article from Vice News: “Turns Out That Using Human Poop to Fertilize Crops Isn't Such a Great Idea” https://www.vice.com/en_us/article/8q8xnk/turns-out-that-using-human-poop-to-fertilize-crops-might-not-be-such-a-great-ide.
11The Applicant also relies on evidence contained in her reply submissions which include:
Email chain of August 28-29, 2019 to/from Applicant and Tribunal Case-Coordinator Crisann Alevizos, and copied to all parties, with two photographs attached, labelled “372 Sherman Avenue interior” and “372 Sherman Avenue North exterior”; and
Email message of August 29, 2019 from Applicant to Crisann Alevizos and copied to all parties, with three photographs attached, labelled “390 Sherman Ave North”, “390 Sherman Ave North window” and “390 Sherman Avenue North mailboxes”.
12The Director relies on the evidence set out in the affidavit of David Lee, Senior Waste Engineer with the MECP in the Approval Services Section of the Environmental Assessment and Permissions Branch (“Lee Affidavit”). Mr. Lee reviewed the application submitted by Revolution and recommended that the Pilot Project ECA be approved. The Lee Affidavit includes the following exhibits:
Curriculum vitae of David Lee;
Acknowledgement of Expert’s Duty Form;
Completed Application Form 8551E;
Ministry approval for the facility to be used: Facility ECA;
City of Hamilton Zoning Confirmation for 227-237 Brant Street;
Proof of Legal Name of Revolution Environmental Solutions LP (Terrapure);
Site Plan for 227-237 Brant Street;
Amended Design and Operations Report for 227-237 Brant Street;
Ministry approval for equipment to be used: Mobile Unit ECA; and
Design and Operations Manual – Bioset Process.
13The Director also relies on the evidence set out in the affidavit of Mohsen Keyvani (“Keyvani Affidavit”), the signing Director who approved and issued the instrument that is the subject of this application for leave to appeal. The Keyvani Affidavit includes Mr. Keyvani’s curriculum vitae.
14Revolution relies on portions of the evidence contained in the Lee Affidavit.
Issues
15The two issues on this application for leave to appeal are:
whether the Applicant has standing under s. 38(1) of the EBR to seek leave to appeal; and
whether the Applicant meets the two-part test for leave to appeal under s. 41 of the EBR (“Leave Test”).
Discussion, Analysis and Findings:
Issue 1: Whether the Applicant has standing under s. 38(1) of the EBR to bring the application for leave to appeal
16The legal right to seek leave to appeal to the Tribunal is called “standing”. The test for standing under s. 38(1) of the EBR has four parts:
the applicant must be an Ontario resident;
the decision in question must be whether or not to implement a proposal for a Class I or II instrument for which notice is required to be given under s. 22 of the EBR;
the applicant must have an interest in the decision; and
another person must have the right to appeal under another Act.
17The Director does not dispute that the Applicant has demonstrated an interest in the decision and agrees that the other parts of the test for standing have been met. Revolution made no submissions on the issue of standing.
18The Tribunal finds that Ms. Le Clair is a resident of Ontario, and the Pilot Project ECA is a classified instrument for which notice was required to be given.
19Ms. Le Clair is a neighbour living close to the Site. As evidence of her interest in the decision, Ms. Le Clair says she and her family live and work in the area of the proposed facility and have followed Terrapure’s plans for activities on the Site with “grave concern”. She states that she contacted Terrapure representatives in August 2018 and made several requests for the company to participate in a community consultation meeting “to provide the public with an opportunity to learn more about the proposed changes at the Brant Street facility and a neighbouring Terrapure facility nearby on Imperial Street”. She says that she subsequently arranged a public meeting which took place on October 16, 2018, and that she was one of 23 people who submitted comments on the Environmental Registry. The Tribunal finds that the Applicant has shown a clear interest in the decision.
20Finally, another person has a right to appeal the decision (in this case Revolution, under s. 139 of the Environmental Protection Act (“EPA”)).
21As such, the Tribunal finds that the Applicant meets the four requirements for standing under s. 38(1) of the EBR and she therefore has standing to seek leave to appeal in this matter.
Issue 2: Whether the Applicant has met the two-part Leave Test under s. 41 of the EBR
The Leave Test
22Pursuant to s. 41 of the EBR, leave shall not be granted unless it appears to the Tribunal 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 (“Leave Test”).
23The Leave Test in applications for leave to appeal, frequently applied by the Tribunal, was described in Lafarge Canada Inc v Ontario (Environmental Review Tribunal), [2008] OJ No 2460, 36 CELR (3d) 191, 2008 CarswellOnt 3658, 241 OAC 156, 2008 30290 (“Lafarge”), at para. 45 as follows:
At the leave to appeal stage, the appropriate standard of proof is an evidentiary one, i.e., leading sufficient evidence to establish a prima facie case, or showing that the appeal has "preliminary merit", or that a good arguable case has been made out, or that there is a serious issue to be tried. Although worded differently, all of these phrases point to a uniform standard which is less than the balance of probabilities, but amount to satisfying the Tribunal that there is a real foundation, sufficient to give the parties a right to pursue the matter through the appeal process.
24The Tribunal maintains the approach set out by the Divisional Court in Lafarge in assessing the Leave Test in this application, and notes that both questions in the test must be answered in the affirmative for leave to appeal to be granted.
25Regarding the evidence that may be needed to meet the Leave Test, the Tribunal also follows the direction provided by then Vice-Chair DeMarco in Marshall v. Ontario (Ministry of the Environment), [2008] O.E.R.T.D. No. 39, 38 CELR (3d) 291, 2008 CarswellOnt 5320 at para. 32, where he said:
…in some cases, it may be sufficient for an applicant to simply bring to the surface any apparent errors from the available documents, and if the respondents do not adequately refute them, then Leave to Appeal may be granted. In other cases, where possible errors or concerns are not so obvious, more may be needed from an applicant in order to satisfy the section 41 test. At one end of the spectrum, an applicant may uncover errors in the Director’s decision based on documents that are already available or reveal that a Director failed to consider an applicable law or policy. At the other, an applicant may commission an expert to raise questions about the reasonableness of the scientific and technical basis of the decision. While the arguments and facts that may be needed to address the section 41 test will depend on the decision at issue, the one constant is that an applicant must satisfy the statutory test.
Sub-issue 2(a): The First Branch of the Leave Test under s. 41 of the EBR − Reasonableness
a. Applicant’s Submissions
26The Applicant’s overall position is that it appears there is good reason to believe that the Director’s decision to issue the Pilot Project ECA, subject to the conditions imposed, was one no reasonable person could have made because: the distance from the Site to the nearest residential dwelling is insufficient; cumulative impacts should have been given “weighted consideration”; Terrapure has a “poor track record for safety”; and the potential risks of “sewage sludge treatment on human health” are “alarming”.
27The Applicant submits that the Pilot Project should only be permitted more than 100 metres from the “nearest sensitive use”. She states that Terrapure has an existing facility at 200 Eastport Drive, which she says is “more than the required distance from residences, which would be suitable for this mobile operation”. She submits as well, that any decision on the location of the Pilot Project must respect the existing heavy concentration of industrial uses, in particular waste facilities, in the area and “the undue burden this has already placed on residents”.
28The Applicant submits that the relief she is seeking through her application for leave to appeal, is that the Director’s decision to issue the Pilot Project ECA be reversed. She relies on her submissions and the materials provided with her leave to appeal application.
Distance from Site to Nearest Residential Dwelling is Insufficient
29The Applicant submits, regarding the distance from the Site to the nearest residential dwelling, that residents live as few as 20 metres away from the property line at 237 Brant Street. This, the Applicant asserts, is “the reality of the present situation” despite City of Hamilton’s “intended zoning guidelines and planning policy”, or whether MECP was able to verify that there are residents living close to the Site.
30The Applicant notes that ‘the City of Hamilton's Planning and Economic Development Department stated in a November 28th, 2018 memo that “no residential zone exists within 300 m of the site”. However, as examples of nearest residential occupancy, the Applicant submits that people live at two multi-unit dwellings located at 390 Sherman Avenue North and 364 Sherman Avenue North.
31The Applicant further submits:
While the ECA decision stipulates that there must be at least a 100 metre buffer distance between the facility and where a resident is located, this is demonstrably not the case…The Ministry decision states “Revolution will be required to verify the need for Hamilton District Manager approval should non-conforming residents be located within the 100 meter radius.” According to the decision, an MECP Environmental Officer visited the site and could not verify any residents within twenty metres of any part of the property boundary.
32The Applicant asserts that the statement regarding an MECP officer being unable to verify residency is “ambiguous” and, that with no description of the steps taken during the officer’s site visit, “a reasonable person should insist on 100% certainty in this matter.” In the interim, the Applicant submits, environmental laws should protect “any sensitive land use – whether conforming or non-conforming…The City of Hamilton acknowledges that there are residential nonconforming uses happening here – so the Ministry should recognize this too and make decisions accordingly.”
33Finally, on her assertion that the distance from Site to the nearest residential dwelling is insufficient, the Applicant submits that “[t]his is a matter of environmental justice: people should be protected, even in cases of legal nonconforming residential uses.”
Consideration of Cumulative Effects
34Regarding the consideration of cumulative effects in the area of the Pilot Project, the Applicant submits that the Director, in making his decision, should have given a “weighted consideration to the undeniable fact of cumulative impacts in the area of Hamilton where 237 Brant Street is located.” She asserts that the surrounding area already has a high concentration of waste facilities compared to any other of part of the City.
35The Applicant reiterated her position that the buildings in the vicinity of the Site are not exclusively occupied by business or industry, and says it is an “irrefutable reality” that humans are living “far fewer metres away from industry, i.e. waste facilities” than, in her opinion, “even the weakest regulations should permit”.
36The Applicant submits that existing Environmental Compliance Approvals for other waste facilities in the area have been historically and chronically ineffective in mitigating negative impacts on the community. She asserts that “other area waste facilities with ostensibly rigorous odour management plans, for instance, have failed to prevent persistent odour problems from plaguing the neighbourhood”. The Applicant adds that the odour issues in the area of the Site are “constant and come from multiple sources, and no amount of complaints from the community to the companies responsible nor the Ministry have resulted in any substantial abatement”. She notes that those companies also have complaint response procedures, that in her opinion they are inadequate to solve the problem, and that government policies and relevant laws have not prevented the situation.
37The Applicant submits that a reasonable person would not approve an Environmental Compliance Approval for a “new, and arguably riskier facility, to open - at least not until other facilities are brought into compliance”, and submits that it was not reasonable for the Director to issue the Pilot Project ECA given the factors set out above.
Terrapure’s Track Record
38The Applicant submits that, a reasonable person would deny the Pilot Project ECA because “in the last three years, Terrapure has a poor track record for safety for which the company has been charged by the Ministry.” She asserts that Terrapure has not followed operational standards, which has led to two dangerous incidents that exposed the surrounding community to hazardous chemicals. Further, the Applicant says, Terrapure did not adhere to responsible incident reporting requirements in the aftermath of those incidents, and she notes that “the Terrapure Imperial Street facility where these incidents occurred is about 250m from the proposed facility on Brant Street.”
39The Applicant describes Terrapure’s environmental track record for safety over the last three years as follows:
Terrapure Environmental was convicted of three offences under the province’s Environmental Protection Act in 2017 for two incidents in 2016 at its hazardous waste processing plant on Imperial Street in Hamilton during which it emitted harmful gases to neighbouring [homes and] businesses. The [MECP] said the first incident on Jan. 20 2016 occurred when the plant accepted a lugger bin of mixed hazardous wastes. Problems arose when workers mixed the bin with 31 other loads of hazardous waste received over the previous 10 months. The [loads] included two wastes not permitted by the plant’s licence and the mixture caused a discharge of chlorine and/or bromine gas, the Ministry said in a Dec. 6 2017 press release announcing the convictions. Terrapure didn’t notify the ministry as required by its licence and the incident only came to light when a neighbouring business complained its employees and contractors were experiencing adverse health effects. The second incident took place on Aug. 12 2016 when the plant accepted a shipment of 13,000 litres of glycerin pitch waste, a byproduct of making biodiesel fuel. The waste was mixed with cement kiln dust and left to cool overnight. But Terrapure received a call from the Hamilton fire department at 9 p.m. that a neighbouring business had evacuated its plant because the mixture had created acrolein gas, a highly toxic substance that can cause acute and chronic health effects.” [emphasis in the original]
40The Applicant says that the incidents she has described have occurred in spite of “supposedly sufficient” safeguards imposed by the Ministry. The Applicant says that she knows about these events solely because of media coverage and has no way of knowing if they are “isolated, the most serious, or indicative of a pattern of negligence and carelessness”. She says she believes that any reasonable person must assert that Terrapure does cause significant harm to the environment. “It’s not a question of IF it could happen”, the Applicant submits, “it HAS happened recently in spite of mandated regulations i.e. relevant laws”.
41Therefore, the Applicant submits, it was unreasonable for the Director to have issued the Pilot Project ECA to Terrapure “a company with no experience in this type of waste processing, to experiment with unproven technology on potentially hazardous materials at a new site that has been dormant for many years”.
Potential Risks to Human Health
42The Applicant submits, regarding the Pilot Project’s potential risks to human health, that “a reasonable person can deduce from researching the effects of sewage sludge treatment on human health that the potential risks are alarming and adequate long term analysis does not exist”. The Applicant provides research and news articles from a number of websites to support her submission that there are a range of disturbing factors associated with land application of biosolids, although she concedes that she could not find data that separated risks connected only to the processing phase of “sewage sludge treatment”. However, she submits, “a reasonable person can draw a throughline from risks associated with application to comparable risks when processing”.
43The Applicant lists several excerpts from her research, which she submits are helpful and show a range of sources:
“Some residents living near land application sites associate physical symptoms such as mucous membrane irritation, respiratory and gastrointestinal distress, headaches, and skin rashes with land application of sewage sludge. Residents also report foul odors and interference with their quality of life and beneficial use of their property.” Source: https://ehp.niehs.nih.gov/doi/10.1289/ehp.1205470
“Many of the risks to people, agriculture, and the environment posed by land application of sewage sludges are chronic and may only be evident after long-term exposure. Such effects are difficult to measure and document. There is a set of symptoms that are common among neighbors to the sludge land application sites we investigated. Most common are respiratory and gastrointestinal symptoms, skin disorders and headaches. Other symptoms frequently reported by numerous people include nosebleeds, burning eyes, throat or nose, flu-like symptoms, and fatigue. Among those affected, these symptoms are known as “sludge syndrome”. Such symptoms might be caused by exposure to irritating chemicals such as ammonia and organic amines, endotoxins, and pathogens.” Source: http://cwmi.css.cornell.edu/Sludge/Newsolutions.pdf
“Environmentally conscious farmers and governments around the world still have a number of concerns [about biosolids as fertilizer]. The Ecological Farmers Association of Ontario supports a moratorium to ban the spreading of biosolids on farm land and ask for independent research on long term effects on farmland and surrounding ecosystems.” Source: https://tworowtimes.com/news/local/pros-cons-biosolids-fertilizer/
“Fertilisation of land with processed sewage sludges, which often contain low levels of pathogens, endotoxins, and trace amounts of industrial and household chemicals, has become common practice in Western Europe, the US, and Canada. Local governments, however, are increasingly restricting or banning the practice in response to residents reporting adverse health effects. These self-reported illnesses have not been studied and methods for assessing exposures of residential communities to contaminants from processed sewage sludges need to be developed.” Source: https://bmcpublichealth.biomedcentral.com/articles/10.1186/1471-2458-2-11
“The authors studied the health status of residents living ... near farm fields that were permitted to receive biosolids. Results revealed that some reported health-related symptoms were statistically significantly elevated among the exposed residents, including excessive secretion of tears, abdominal bloating, jaundice, skin ulcer, dehydration, weight loss, and general weakness. The frequency of reported occurrence of bronchitis, upper respiratory infection, and giardiasis were also statistically significantly elevated. The findings suggest an increased risk for certain respiratory, gastrointestinal, and other diseases among residents living near farm fields on which the use of biosolids was permitted.” Source: http://cwmi.css.cornell.edu/case.pdf
“New research suggests [using sewage sludge fertilizer] could be a problem, as contaminants are now showing up in treated sludge—and, in lower levels, even in some animals that have fed off the plants it fertilizes. "I don't think the present rules are even remotely adequate," Murray McBride, a soil contaminant researcher at Cornell University, told me. "There are a lot more toxic metals on the periodic table [and potentially in the soil] than what they decided to regulate." According to him, the EPA's rules are outdated. They regulate only nine metals with known health risks—including lead, cadmium and arsenic. And metals are just the beginning. Pharmaceuticals and other organic chemicals found in biosolids are cause for even greater concern, he said. Others agree. "If you look at what [could be] potentially regulated by EPA, it's just a tiny fraction of the universe of the chemicals we live in," David L. Lewis, a former EPA scientist who is now a fierce critic of the agency.” Source: https://www.vice.com/en_us/article/8q8xnk/turns-out-that-using-human-poop-to-fertilize-crops-might-not-be-such-a-great-ide
b. Director’s Response
44The Director submits that the applicable legal test for leave to appeal is not met in this case, and thus leave to appeal should be denied. The Director relies on the facts set out in the Lee and Keyvani Affidavits, and says that an examination of those affidavits establishes that the application for the Pilot Project ECA was reviewed carefully and the decision to approve it was an “eminently reasonable one”.
Distance from Site to Nearest Residential Dwelling is Insufficient
45The Director submits, in response to the Applicant’s submission that a reasonable person would not approve the Pilot Project ECA because the distance from the Site to the nearest residential dwelling is “insufficient”, that the Applicant’s submissions on this ground appear largely based on the premise that “…the ECA decision stipulates that there must be at least a 100 metre buffer distance between the facility and where a resident is located.” The Director submits that this premise is incorrect, as Condition 18 of the Mobile Unit ECA explicitly permits operation within 100 metres of a residential location, as long as written approval is given by the District Manager.
46The Director submits that the Applicant appears to have assumed that the Pilot Project ECA was approved because the Director feels people living in nonconforming homes should not enjoy the benefit of environmental protection. However, the Director states, “the affidavit of Mr. Lee makes it clear that in reaching his decision…he proceeded on the basis that those living in non-conforming residences should enjoy the same level of legal protection under this ECA as those living in conforming residences.”
47As well, the Director submits, the Applicant appears to have assumed that when the Director could not verify that anyone was living in nearby homes, the Director concluded no one could be living there. However, the Director asserts, the Lee Affidavit makes it clear that the opposite is true, and says that if verifiable information is received that a person is residing within 100 metres of the Site and approval to operate is granted by the District Manager, the Pilot Project ECA will continue to provide adequate protection to those living in proximity to the Site.
48The Director submits that the Best Management Practices “(BMPs”) and Complaint Response Procedures required by the Pilot Project ECA conditions, offer significant protection to the public, including to those who may be residing within 100 metres or even closer to the Site. For example, Condition 54.1(g), the Director submits, provides a good example of how the Pilot Project ECA is crafted to offer protection to all neighbours, and especially those potentially living within a 100-metre radius of the Site. That Condition states in part:
54.1(g) Site operators shall monitor for odour in the building during the off-loading and processing operation. If odour levels are elevated, staff shall then do a property perimeter check to monitor for fugitive emission that may reach the property boundary. If odour is detected at the property boundary the attending operators will stop operations. …
49The Director submits that the requirement for an odour check at the property perimeter, as opposed to 100 metres beyond the property perimeter, is evidence that Mr. Lee and the Director were concerned about the impact of nuisance odours on persons potentially residing within 100 metres of the Site. The Director notes that the Pilot Project ECA requires that if any odour is detected anywhere on the Site’s property boundary, then the attending operators must “stop operations.” As well, the Director says, “if it were established that a person or persons are residing within 100 metres, permission of the District Manager would be necessary to operate (or continue to operate)”. That would be the case, the Director submits, even if no one is living within 100 metres now or at the commencement of operations, but if a person or persons begin to live there later. The Director did not accept the Applicant’s evidence that people are living within 100 metres of the Site, but submits that should that scenario present itself, “the District Manager would be well positioned to weigh factors, such as the number of people known to live within that radius, the distance they reside from the Site, and whether the Pilot Project has generated any environmental concerns, such as odour, dust and noise, that may impact that particular resident”.
50The Director submits with respect to this ground, that the Applicant has not met either of the requirements in s. 41 of the EBR and that in making the decision to approve the Pilot Project ECA, “appropriate protections were instituted to ensure the protection of the environment and public, including those persons who may be residing within 100 metres or closer to the Site”.
Consideration of Cumulative Effects
51Regarding the Applicant’s assertion that “a reasonable person would give weighted consideration to the undeniable fact of cumulative impacts in the area of Hamilton where 237 Brant Street is located”, the Director refers specifically to certain other comments included in the Applicant’s submissions as set out below.
52The Director submits that by “cumulative effects,” Mr. Lee understands the Applicant to be concerned that potential odours from the Pilot Project will result in a nuisance to humans in an area where previous odour and nuisance events have already had an impact on humans.
53The Director submits that the Applicant has provided no evidence to support the facts as alleged, nor provided particulars that enable the Director to respond in full to the issue of cumulative effects in the area of the Pilot Project. Specifically, the Director says, there is no evidence on the record showing:
a. the Director did not give “weighted consideration” to cumulative effects or what “weighted consideration” means or how it applies in this context;
b. there are existing waste facilities in the “surrounding area” or their proximity to the Facility;
c. that these apparent facilities have ostensibly rigorous odour management plans which have been ineffective in mitigating negative impacts;
d. that there are persistent odour problems impacting the neighbourhood; or
e. that the Pilot Project is “riskier” than any other facility in any sense.
54Accordingly, the Director submits, “there are no facts upon which the Tribunal could find that the Pilot Project may contribute to cumulative odour impacts to any extent”.
55The Director submits that Mr. Lee considered the issue of cumulative effects by taking a “cautious and risk-based approach” in reviewing Revolution’s application, by identifying and assessing existing sources of odour to determine current air quality, as well as the potential for fugitive odours from the Pilot Project which could contribute to “cumulative odour impacts”.
56Although there are three facilities nearby with some history of odour impacts, the Director concedes, it is unclear whether the Applicant is referring to these facilities in her materials. Regardless, the Director submits, “Mr. Lee is aware that these facilities have recently made significant improvements which have been effective at reducing odour emission, or that past instances of odour issues were irregular events that do not contribute to persistent odour issues”.
57The Director submits that Mr. Lee expects that, the Pilot Project will not contribute any fugitive odours to existing air quality, as under the Mobile Unit ECA, biosolids material will be treated with a wet scrubber to remove any emissions of ammonia odours. This, together with the BMPs outlined in Condition 54.1, the Director says, will ensure that any odours generated by the operations are contained within the property line.
58In the event some fugitive odours do escape from the Site’s property boundaries and impact nearby residents, the Director submits that the Pilot Project ECA contains several safeguards to prevent continuing impacts that may contribute to cumulative effects. The Director notes that if odours do escape and a member of the public complains, “Revolution must determine all possible causes of the complaint, take necessary actions to eliminate the cause of the complaint – including ceasing operations – and forward a formal reply to the complainant”.
59The Director submits that although Conditions 54 and 55 will mitigate any “consistent or irregular odours” the temporary nature of the Pilot Project (12 months) ensures that it will not significantly contribute to long-term cumulative effects. The Director asserts that if Revolution seeks re-approval of operations after the Pilot Project ECA expires, “the Director will consider the information obtained through the Pilot Project in deciding whether to approve operations on a more permanent basis or require additional odour management systems”.
60The Director asserts that even in a “worst-case scenario” where fugitive odours escape the Site’s perimeter and compound with existing odours and impact people, these odour impacts do not have the potential to significantly harm humans or other elements of the environment, as Mr. Lee’s concern with odour in this case is its potential to create an impact akin to a nuisance.
Terrapure’s Track Record
61The Director responds to the Applicant’s claim that a reasonable person would not have approved the Pilot Project ECA because of Terrapure’s “poor track record for safety” by pointing out that the Lee Affidavit confirms that Mr. Lee was aware of the two incidents that occurred in 2016 at Terrapure’s Imperial St. Facility. The Director says that even though the Applicant asserts that “any reasonable person must assert that Terrapure does cause significant harm to the public,” the evidence shows that Mr. Lee satisfied himself that appropriate corrective action was taken at the Imperial St. Facility, “including a recent amendment to that facility’s ECA for modifications, and no such incidents have reoccurred”. The Director also submits that Mr. Lee satisfied himself that the fines imposed by the court were paid as well.
62The Director states that the Applicant’s position under this ground,
seems at least in part based on her incorrect assumption that this Pilot Project ECA allows Revolution, a company with “no experience in this type of waste processing,” to “experiment with unproven technology…”
However, Revolution has been providing services in biosolids management and land application in Ontario for many years, though under its previous name Terratec Environmental. Further, the Mobile Unit that will used by Revolution has been used successfully many times in other jurisdictions within the United States. Having reviewed the Mobile Unit Design and Operations Manual, Mr. Lee is confident that the design of this equipment does not present a risk to the environment, particularly on such a small scale.
63The Director does not dispute that a company’s track record, including incidents such as the ones referred to by the Applicant in this situation, may be relevant in deciding whether to issue that company an ECA. However, the Director submits, given that “corrective action was taken, no similar incident has reoccurred, and that the fines imposed by the Court were paid – this “track record” does not rise to a level where no reasonable person could have issued this Pilot Project ECA, nor establish that this Pilot Project ECA could result in significant harm to the environment”.
64The Director submits that the Leave Test is not satisfied under this ground.
Potential Risks to Human Health
65The Applicant states that it was not reasonable for the Director to issue the Pilot Project ECA, as “a reasonable person can deduce from researching the effects of sewage sludge treatment on human health that the potential risks are alarming and adequate long term analysis does not exist”. However, the Director submits that the Applicant has not identified any relevant laws or policies that the Director may have neglected or not reasonably considered. Accordingly, the Director says, it is assumed that her argument is limited to the second branch of the Leave Test, that being, the decision to issue the Pilot Project ECA could result in significant harm to the environment.
66The Director notes that the Applicant “provides several academic papers about the potential impact on nearby residents of applying biosolids, or what she calls “sewage sludge,” to agricultural land”. The Director submits that although she could not find any data on the health effects of processing biosolids, the Applicant states that “a reasonable person can draw a throughline from risks associated with application to comparable risks when processing.”
67The Director asserts that the research cited by the Applicant does not in any way suggest that the Pilot Project could cause significant harm to the environment, but comment on the risks of undertaking the activity of applying materials known as “sewage sludge” and “processed biosolids” to open agricultural land with humans residing nearby. The Pilot Project ECA, however, the Director submits,
… approves Revolution to use equipment approved to process biosolids to create a specific CFIA-approved fertilizer, in an enclosed facility approved for managing hazardous waste, with all wastewater contained and managed in accordance with Ministry guidelines and policies, with the added protection of detailed BMPs and other conditions to mitigate environmental risks. Perhaps the most significant differentiating factor is that the Pilot project involves no contact between raw or processed biosolids and open land. Considering the many significant differences between these activities, the Director asserts that it would be unreasonable to assume that the potential risks of these markedly different activities are the same or even comparable, making the information cited by the Applicant irrelevant. [emphasis in the original]
68The Director says that Mr. Lee is not aware of any science which suggests that the action of processing biosolids into fertilizer carries risks for human health. And that his most significant concern was that the Pilot Project could produce odours akin to a nuisance which, the Director submits, have been accounted for in the Pilot Project ECA. The Director submits that Mr. Lee does not consider the risks highlighted in the materials referenced by the Applicant to be applicable to the activities approved in the Pilot Project ECA.
69The Director submits, that having reviewed Revolution’s Application and the Applicant’s materials, “Mr. Lee–a professional waste engineer with seventeen years experience reviewing environmental approvals–continues to believe the Pilot Project complies with all laws and policies designed to protect human health and will not adversely impact human health”.
70The Director submits on this ground, that “the Applicant has failed to adduce any evidence to establish a prima facie case that the approved activity of processing biosolids into CFIA-approved fertilizer could result in significant harm to the environment”.
c. Revolution’s Response
71Revolution relies on its submissions and portions of the evidence contained in the Lee Affidavit. It submits that the Applicant has failed to meet the stringent test for leave under s. 41 of the EBR, as none of the grounds she has identified satisfy the test.
Distance from Site to Nearest Residential Dwelling is Insufficient
72Regarding the Applicant’s submission that the distance from the Brant Street Facility to the nearest residential location is insufficient, and the allegation that residents live as few as 20 metres away from the Site’s property line, Revolution says the Applicant’s concerns are adequately addressed “by the terms contained in the Facility ECA and the Mobile ECA”.
73Revolution makes the following submissions regarding specific conditions contained in the Pilot Project ECA related to distance from the Site to the nearest residential dwelling:
Condition 47 of the Facility ECA requires Terrapure to ensure that all conditions of the Mobile Unit ECA are complied with during the operation of the pilot program.
Condition 18 of the Mobile Unit ECA provides that the mobile unit “shall only be operated at a site which is located at least 100 metres from the nearest residential location, unless written approval is given by the District Manager to operate within the 100 metre limit.”
Contrary to the assertion made in the Application for Leave, condition 18 of the Mobile Unit ECA does not prohibit Terrapure from operating the mobile unit if a person resides within 100 metres of the Brant Street Facility. Rather, condition 18 requires Terrapure to seek approval from the Hamilton District Manager of the Ministry of the Environment, Conservation and Parks (“MECP”) to operate the mobile unit at the Brant Street Facility if there is a residential location within the 100-metre radius.
There is no evidence before the Tribunal that there are residents currently living within a 100-metre radius of the Brant Street Facility. The applicant has identified two addresses of possible residential dwellings in the Application for Leave but has not provided any evidence that the properties are currently being used as residences.
The City of Hamilton's Planning and Economic Development Department stated in a November 28, 2018 memo to the MECP that no residential zone exists within 300 metres of the Brant Street Facility. An MECP Environmental Officer visited the Brant Street Facility and could not verify any residents within 100 metres of any part of the property boundary.
The MECP has also imposed conditions that address the potential impacts from the Pilot Project at the Brant Street Facility on the assumption that people are residing within the 100-metre limit.
Condition 54 of the Facility ECA requires Terrapure to conduct best management practices (the “BMPs”) for odour, noise and dust during the Pilot Project. The BMPs prepared by Terrapure have been reviewed by MECP and added as a condition of approval in the Facility ECA.
Condition 55 of the Facility ECA requires Terrapure to establish a Complaint Response Procedure to ensure that action is taken in the event of any substantiated complaints, including ceasing operations if it is determined that the Pilot Program is the source of any nuisances. If complaints are received by Terrapure for odour, noise or dust, and it is determined that the demonstration is the source, the Pilot Project will cease until corrective actions are undertaken. Response to the complainants will be provided noting actions undertaken.
74Revolution submits that the conditions discussed above are reasonable measures that adequately respond to the Applicant’s concerns regarding proximity of possible residences to the Site, and as such this ground does not meet the test for leave to appeal.
Consideration of Cumulative Effects
75Revolution submits that although the Applicant has raised concerns about the cumulative effects of odour from the Pilot Project and other sources in her neighbourhood, the MECP considered those concerns in its decision to issue the Pilot Project ECA.
76Revolution submits that the MECP “took a risk-based approach in addressing the issue of potential fugitive odour emissions from the Pilot Project” …and “identified and assessed existing sources of odour and the potential for fugitive odour to escape from the Facility and contribute to ambient odour”.
77Revolution says:
the MECP concluded that the rigorous odour mitigation and monitoring requirements in the Facility ECA establish a risk-based and practical means to mitigate and assess actual impacts from fugitive odour while ensuring that such odour does not adversely affect members of the public.
78The issue of cumulative effects, Revolution submits, was considered and reasonably addressed in the Pilot Project ECA, and as such, this ground of appeal does not meet the Leave Test.
Terrapure’s Track Record
79Revolution submits that the Applicant makes “irrelevant accusations” about the track record and experience of Terrapure.
80Revolution says that the Applicant references incidents that occurred on January 20, 2016 and August 12, 2016 at Terrapure’s Imperial Street Facility, but that these incidents have no relationship to the Pilot Project or the Brant Street Facility. It says that the incidents were “the first charges in the 30-year history of the Imperial Street Facility”, and that “Terrapure took full responsibility for both incidents and cooperated with the MECP’s investigation”.
81Revolution submits that in response to the incidents, Terrapure implemented steps at the Imperial Street Facility to ensure that such events will not occur again, “including revisions to the environmental compliance approval for the Imperial Street Facility that governs the receiving, transferring and processing of wastes”. Revolution states that there have been no further incidents at the Imperial Street Facility since the implementation of these changes.
82The decision to issue the Pilot Project ECA, in light of Terrapure’s track record and response to the incidents at the Imperial Street Facility, Revolution submits, was reasonable. This ground, it says, does not meet the Leave Test.
Potential Risks to Human Health
83In response to the Applicant’s allegations that the Pilot Project will present a risk to human health, Revolution says that “the articles cited in the Leave to Appeal Application have no connection whatsoever to the Pilot Project or Brant Street Facility and that the articles cited by the Applicant relate to “the use of biosolids as a fertilizer on agricultural land, which is not permitted by the Facility ECA or Mobile Unit ECA”.
84Revolution submits that the Applicant openly acknowledges in her submissions that she has not presented data on the risks related to the processing of biosolids. As such, Revolution says the information provided by the Applicant in this regard is not sufficient to meet the second branch of the Leave Test.
Findings on Sub-issue 2(a): The First Branch of the Leave Test under s. 41 of the EBR – Reasonableness
Distance from Site to Nearest Residential Dwelling is Insufficient
85Regarding the distance between the Site and the nearest residential dwelling, the Applicant submits that residents live as few as 20 metres away from the property line at 237 Brant Street. She has provided Google Map website pages and photographs that purport to show that people are living in at least two multi-unit dwellings located at 390 Sherman Avenue North and 364 Sherman Avenue North.
86Neither the Director, nor Revolution, provided any evidence to the contrary, although the Tribunal notes that it is generally impossible to prove a negative. The Director however, points out that Condition 18 of the Mobile Unit ECA explicitly permits operation within 100 metres of a residential location, so long as written approval is given by the District Manager.
87The Tribunal is convinced by the evidence of Mr. Lee, that the issue of residents living in close proximity to the Site was considered and reasonably acted upon, by including appropriate conditions. Mr. Lee’s evidence on this point was, in part, as follows, “…if a person resides (or one day in the future begins to reside) within 100 metres of the Facility, an additional requirement is triggered – namely, written approval of the District Manager is needed for operations to continue”… and “I proceeded on the assumption that a person or persons may indeed be living in non-conforming residences within this 100 metre radius, and even within a 20 metre radius. Many of the conditions included in the Pilot Project ECA…are designed to detect, document and mitigate any adverse effects to the community, including such persons who may be residing nearby.”
88The Director considered distance separation of residences from the Site. Therefore, it does not appear that there is good reason to believe no reasonable person could have made this decision, having regard to relevant policies and regulations regarding distance separation.
Consideration of Cumulative Effects
89The Applicant alleges that the area surrounding the Site already has a high concentration of waste facilities compared to any other of part of the city, and that the Director, in making his decision, should have given a “weighted consideration to the undeniable fact of cumulative impacts in the area of Hamilton where 237 Brant Street is located.”
90The Lee Affidavit provides evidence that Mr. Lee considered the concern regarding compound effects from odours, in his technical review of Revolution’s Application when he recommended approval, as part of his assessment of the MECP’s Statement of Environmental Values. Mr. Lee noted that “there are no guidelines or regulations which dictate how to assess ECA applications for cumulative effects of odour or measure the potential for fugitive odour emissions from the Pilot Project to contribute odours to an area to an extent that it would impact people or the environment.” Given that, Mr. Lee said, he took “a cautious and risk-based approach to assessing the possibility of cumulative effects by identifying and assessing existing sources of odour as well as the potential for fugitive odour to contribute….”
91The Tribunal finds that the Director’s decision to issue the Pilot Project ECA did not omit consideration of the combined and cumulative effects on residents in the area of the Site. Given that there are no guidelines or regulations setting out how to assess ECA applications for cumulative effects of odour, adding conditions, which require Revolution to ensure all operations are conducted indoors and that biosolids material is covered and contained, as well as specifically requiring Revolution to monitor for odour during off-loading or processing at the property line and providing that operations must cease if any odour is detected at the property boundary, seems to represent a reasonable approach to the issue of potential cumulative effects.
92In this regard, the Applicant has not provided evidence sufficient to convince the Tribunal that it appears that there is good reason to believe that the issuance of the Pilot Project ECA by the Director, in these circumstances, was a decision that no reasonable person could have made with respect to alleged cumulative impacts on residents living in the area of the Site.
Terrapure’s Track Record
93The Applicant submits it was unreasonable for the Director to have issued the Pilot Project ECA given Terrapure’s track record for safety. The Applicant says, “Terrapure Environmental was convicted of three offences under the province’s Environmental Protection Act in 2017 for two incidents in 2016 at its hazardous waste processing plant on Imperial Street in Hamilton”.
94In the first incident, two wastes not permitted by the plant’s licence mixed, and the mixture caused a discharge of chlorine and/or bromine gas. The Applicant notes that Terrapure didn’t notify the MECP as required by its licence.
95In the second incident, the Applicant says, glycerin pitch waste, a byproduct of making biodiesel fuel, was mixed with cement kiln dust and the mixture created acrolein gas, “a highly toxic substance that can cause acute and chronic health effects.”
96The Applicant says that she has no way of knowing if these incidents are “isolated, the most serious, or indicative of a pattern of negligence and carelessness”, and that it was unreasonable for the Director to have issued the Pilot Project ECA to Terrapure “a company with no experience in this type of waste processing, to experiment with unproven technology on potentially hazardous materials at a new site that has been dormant for many years”.
97The Director agrees that a company’s track record may be relevant in deciding whether to issue a company an ECA, but submits that Terrapure’s track record does not rise to a level where no reasonable person could have issued the Pilot Project ECA.
98Revolution says that the incidents put forward by the Applicant have no relationship to the Pilot Project or the Brant Street Facility, that the incidents were the first charges in the 30-year history of the Imperial Street Facility, and that Terrapure took responsibility for both incidents and cooperated with the MECP. Revolution says as well, that in response to the incidents, the company implemented steps at the Imperial Street Facility to ensure that such events will not occur again.
99The Tribunal is satisfied, based on all the evidence, that the issue of the track record was considered and that the Director’s decision to approve the Pilot Project ECA was not unreasonable given the facts before him.
100In particular, the Tribunal is convinced by Mr. Lee’s evidence that:
Revolution accepted responsibility for the incidents, paid all fines and acted to improve site operations to ensure any further incidents are avoided or mitigated.
The incidents which led to noxious air emissions from the 53 Imperial St. facility and the impacts experienced as a result have not occurred since corrective action was taken. Understanding the incidents and the corrective action taken by Revolution, I determined that Revolution had appropriately addressed the cause of the incidents.
I do not agree with the Applicants assertion that Revolution is a company with “no experience in this type of waste processing”. Revolution, and before it Terratec Environmental, have been providing services in biosolids management and land application in Ontario for many years.
I also do not agree with the Applicant’s assertion that the Pilot Project ECA permits Revolution “to experiment with unproven technology”. The Schwing Bioset equipment has been used successfully many times in other jurisdictions within the United States, with case studies available online at the manufacturer’s website. The Mobile Unit has also been reviewed and approved by the Ministry through the ECA application process.
101The Applicant has not provided evidence sufficient to convince the Tribunal that it appears that there is good reason to believe that the issuance of the Pilot Project ECA by the Director, in these circumstances, was a decision that no reasonable person could have made with respect to the company’s track record for safety.
Potential Risks to Human Health
102In raising the issue of the potential risks to human health that may be caused by the Pilot Project, the Applicant has provided a number of materials setting out concerns associated with land application of biosolids or fertilizers derived from biosolids. While they may be concerning, as the Director has pointed out, and the Applicant concedes, the articles provided do not separate out the “risks connected to only the processing phase of sewage sludge treatment”. However, the Applicant says, “a reasonable person can draw a throughline from risks associated with application to comparable risks when processing”.
103Despite the Applicant’s assertion on this point, she did not provide any technical or expert opinion evidence to support her assertion. Mr. Lee’s evidence on this issue is that the Pilot Project ECA does not “approve, explicitly of implicitly, land application of the output produced at the Site as part of the Pilot Project”. Therefore, he says, the materials submitted by the Applicant in this regard are out of the scope of his review, and that “[c]oncerns regarding the land application of untreated sewage and the like are not relevant to the Pilot Project which produces a CFIA-approved fertilizer within an enclosed space”.
104The Tribunal therefore finds that the Applicant has not provided evidence sufficient to convince the Tribunal that it appears that there is good reason to believe that the issuance of the Pilot Project ECA by the Director, in these circumstances, was a decision that no reasonable person could have made with respect to potential risks to human health.
Overall Conclusion on Sub-Issue 2(a) − Reasonableness
105The Applicant has not established that it appears that there is good reason to believe that no reasonable person could have made the decision to issue the Pilot Project ECA with the conditions that were included. The Tribunal therefore finds that it does not appear that 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 issued the Pilot Project ECA in question. The Tribunal finds that the Senior Waste Review Engineer who reviewed Revolution’s application and recommended approval and the Signing Director who approved the Pilot Project ECA, took a reasonable approach to preventing environmental harm, by including conditions that mandate the use of Best Management Practices for odour, noise and dust, and provide recourse should odours be experienced and complaints reported.
Sub-issue 2(b): The Second Branch of the Leave Test under s. 41 of the EBR – Significant Environmental Harm
106The first branch of the Leave Test was not satisfied by the evidence and submissions set out in the Applicant’s leave to appeal application. As both branches of the Leave Test under s. 41 of the EBR must be satisfied in order for leave to be granted, it is not necessary for the Tribunal to analyze the second branch of the Leave Test.
DECISION
107The Tribunal finds that the Applicant has not satisfied the test for leave to appeal found in s. 41 of the EBR. The Applicant’s application for leave to appeal is therefore dismissed.
Application for Leave to Appeal Dismissed
“Marlene Cashin”
MARLENE CASHIN
MEMBER
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Environmental Review Tribunal
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