Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: March 01, 2021
CASE NO(S).: 20-033
PROCEEDING COMMENCED UNDER section 139(2)(b) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Darling International Canada Inc.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Conditions on an amended environmental compliance approval for the processing of Animal By-products in the Rothsay Moorefield Plant
Reference No.: 5238-BSVRHU
Property Address/Description: 8406 Wellington County Road #7
Municipality: Mapleton Township
Upper Tier: County of Wellington
ERT Case No.: 20-033
ERT Case Name: Darling International Canada Inc. v. Ontario (Environment, Conservation and Parks)
APPEARANCES:
| Parties | Counsel |
|---|---|
| Darling International Canada Inc. | M. McAree, A. Srivastava and L. Wortsman |
| Director, Ministry of the Environment, Conservation and Parks | N. Harris, A. Landre, and E. Chan (student-at-law) |
HEARD: February 19, 2021 by video hearing
ADJUDICATOR(S): Hugh S. Wilkins, Member
DECISION
1Darling International Canada Inc. (“Appellant”) appealed specific conditions imposed under Amended Environmental Compliance Approval No. 5238-BSVRHU (“ECA”) issued by the Director, Ministry of the Environment, Conservation and Parks (“MECP”) on October 2, 2020. The ECA relates to the Appellant’s Rothsay Moorefield Plant (“Facility”) located in the Township of Mapleton. The Facility is an animal by-product collection, processing and feed ingredient manufacturing plant. A main focus of the appeal is regarding the use of odour unit limits in the ECA.
2At a Pre-hearing Conference (“PHC”), held on February 19, 2021, the Tribunal addressed requests for Presenter status, approved the withdrawal of the appeal in part, directed the Director to amend the ECA, and ordered next steps in the proceeding.
Requests for Status
3The Ontario Waste Management Association, the Wellington Federation of Agriculture, and the Township of Mapleton each requested Presenter status in the proceeding. Each stated that it, or its constituents, would be impacted by the outcome of the proceeding and has a genuine interest in the subject matter of the hearing. Each also agreed to limit the scope of its evidence and submissions at the hearing to the impacts to the natural environment resulting from the Tribunal’s decision. This includes evidence and submissions on the application of odour units and the limitations of that approach. Neither of the Parties objected to the granting of Presenter status to these entities with these limitations on the scope of their evidence and submissions. The Tribunal finds that each of these entities will be directly or substantially affected by the hearing or its outcomes, has a genuine interest in the subject matter of the hearing, and will likely make a relevant contribution to the Tribunal's understanding of the issues in the proceeding. The Tribunal granted each of them Presenter status on this basis.
Proposed Partial Settlement of the Appeal
4In its Notice of Appeal, the Appellant appealed the imposition of terms and conditions in the ECA relating to specific performance conditions, source testing, notification of complaints, district notification, and the creation and operation of a Public Liaison Committee. Prior to the PHC, on February 12, 2021, the Parties notified the Tribunal that they had reached a proposed settlement with respect to several of these issues.
5At the PHC, the Director described the amendments to the ECA proposed in the partial settlement. The Director stated that the proposed amendments to the ECA:
clarify the timing of updates to the Facility’s odour management plan in the ECA (Condition 1.4);
address the content and timing requirements for the Appellant to notify the Director and the Public Liaison Committee regarding odour and/or noise complaints received by the Appellant and regarding notification to the Director of the occurrence of particulate matter deposits resulting from the operation of the Facility’s cooling towers (Condition 6);
clarify the required content of notifications to the MECP’s District Manager on the replacement of biological oxidation system media (Condition 9); and,
amend provisions regarding the objectives of the Public Liaison Committee, the Committee’s terms of reference, the sharing of information with the Committee, membership of the Committee, and appointment of its co-chairs (Condition 10).
6The proposed settlement envisions the withdrawal of the appeal with respect to these provisions and a direction from the Tribunal for the Director to make the above-mentioned revisions to the ECA. The remainder of the appeal would remain live.
7Under Rule 198 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”), an appellant who proposes to withdraw an appeal must notify the Tribunal, other Parties, Participants and Presenters. At the PHC, the Tribunal provided an opportunity for the Presenters to object to the proposed partial settlement and partial withdrawal of the appeal. None objected.
8Rule 201 requires the Tribunal to consider whether a proposed withdrawal of an appeal (or part thereof) as part of a settlement agreement not objected to by any Party that alters the decision under appeal is consistent with the purpose and provisions of the relevant legislation and whether it is in the public interest. The Tribunal has the discretion either to continue with the proceeding or to dismiss it. In the present case, the relevant legislation is the Environmental Protection Act. The purpose of the Act is to provide for the protection and conservation of the natural environment. The relevant provisions of the Act include those set out in its Part II.1.
9At the PHC, Rudolph Wan and Amy Shaw provided oral fact evidence in support of the proposed settlement. Mr. Wan is the MECP Director who signed the ECA. Ms. Shaw is the MECP’s District Manager for the area in which the Facility is located. Mr. Wan stated that the proposed changes to Condition 1.4 clarify the requirements in the ECA and are administrative in nature. He said they are not substantive. He said they are consistent with the purpose and provisions of the Environmental Protection Act and are in the public interest. Ms. Shaw stated that the proposed changes to Conditions 6, 9 and 10 also aim to clarify and improve the ECA’s requirements. She stated that the proposed wording regarding the Public Liaison Committee is consistent with wording used in environmental compliance approvals for similar situations elsewhere. She stated that the proposed changes to Conditions 6, 9 and 10 are consistent with the purpose and provisions of the Environmental Protection Act and are in the public interest.
10The Tribunal found that the proposed amendments to the ECA are consistent with the purpose and provisions of the Environmental Protection Act and are in the public interest. It finds that the proposed amendments provide for greater clarity regarding the Appellant’s obligations under the ECA and will ensure effective environmental protection regarding odour, noise and other emissions from the Facility. The Tribunal finds that the resolution of these issues will facilitate a more efficient and focused hearing regarding the main matters in dispute between the Parties and the proposed amendments are in the public interest.
11The Tribunal approves the proposed amendments to the ECA and directs the Director to amend the ECA accordingly.
Settlement Discussion Opportunities
12The Appellant stated that it intends to make a settlement proposal to the Director regarding the remaining issues in the appeal within the next couple of weeks. It requested that the Parties be provided time to pursue settlement discussions. The Director supported this proposal and the Tribunal agreed to schedule a further PHC for late April 2021. The Tribunal urged the Parties to work together to settle the appeal and stated that if the Parties are interested in requesting Tribunal-assisted mediation, this could be a route to be pursued.
Other Procedural Matters
13The Tribunal scheduled a further PHC to be held on April 30, 2021. The Tribunal stated that if the Parties reach a settlement, they are to contact the Tribunal’s Case Coordinator and request that the April PHC be converted into a settlement hearing. If a settlement hearing is held, the Tribunal directs that the Parties file with the Tribunal supporting materials regarding the proposed settlement by April 28, 2021. If there is no settlement, but the Parties agree to pursue mediation, the timing of the mediation may be addressed at the April PHC. If, prior to the April PHC, the Parties find that there is no prospect for settlement, the Tribunal expects the Parties to be prepared for the Tribunal to set hearing dates at the April PHC.
14In the Appellant's Notice of Appeal, the Appellant pleads that it will bring a motion for a stay. The Appellant has informed the Tribunal that its motion for a stay has not been necessary to this point. The Tribunal acknowledges that the Appellant has reserved its right to later bring a motion for a stay relating to the outstanding grounds of appeal.
ORDER
15The Tribunal orders that the Ontario Waste Management Association, Wellington Federation of Agriculture, and the Township of Mapleton are Presenters in this proceeding. The scope of their evidence and submissions will be limited to the impacts to the natural environment resulting from the Tribunal’s decision. This includes evidence and submissions on the application of odour units and the limitations of that approach.
16The Tribunal accepts the withdrawal of the appeal as it relates to Conditions 1.4, 6, 9 and 10 of the ECA and it directs the Director to amend the ECA accordingly as set out in Appendix 1 to this Order and Decision.
17The remaining grounds of appeal set out in the Appellant’s Notice of Appeal remain live.
18The Tribunal orders that a further PHC will be held by video hearing on Friday, April 30, 2021 commencing at 10 a.m, details of which will be provided by the Tribunal’s Case Coordinator.
19There will be no further notice.
20This Member is not seized.
Presenter Status Granted
Withdrawal of Appeal Allowed in Part
Amendments to ECA Directed
PHC Continuation Scheduled
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Appendix 1 – Proposed Amendments to Conditions 1.4, 6.1, 6.2, 9.1 and 10 of the ECA
If there is an attachment referred to in this document,
please visit www.olt.gov.on.ca to view the attachment in PDF format.
Environmental Review Tribunal
A constituent tribunal of Ontario Land Tribunals
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