Darling International Canada Inc. v. Ontario (Environment, Conservation and Parks), 2021 CanLII 63279

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 16, 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)

Heard:

April 30, 2021 by video hearing and May 19, June 4, 9, and 10, and July 7, 2021 in writing

APPEARANCES:

Parties

Counsel

Darling International Canada Inc.

Marc McAree, Anand Srivastava and Lauren Wortsman

Director, Ministry of the Environment, Conservation and Parks

Nadine Harris, Amanda Landre, and Leslie-Anne Amour (student-at-law)

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

1On October 2, 2020, the Director, Ministry of the Environment, Conservation and Parks issued Amended Environmental Compliance Approval No. 5238-BSVRHU (“ECA”) relating to Darling International Canada Inc.’s (“Appellant”) Rothsay Moorefield Plant (“Facility”) located in the Township of Mapleton. The Facility is an animal by-product collection, processing and feed ingredient manufacturing plant. The Appellant appealed specific conditions imposed under the ECA, including conditions regarding the ECA’s use of odour unit limits.

2On April 30, 2021, the Tribunal held a Case Management Conference (“CMC”) at which the Parties discussed the preparation of an Issues List and draft Procedural Order, discussed opportunities for settlement discussions, and requested the setting of hearing dates.

3Subsequent to the CMC, the Parties informed the Tribunal that they had not come to agreement on the Issues List. On June 4, 9, and 10, 2021, they provided written submissions on the appropriateness of proposed issues.

4Also, on May 19, 2021 and July 7, 2021, the Parties provided joint submissions, on consent, requesting that the Tribunal amend the ECA to extend the due date in the ECA’s Condition 1.1 for implementation of required odour limits.

5Each of these items is addressed below.

Preparation of a draft Procedural Order and Issues List

6At the CMC, the Appellant identified its proposed issues for the hearing. The Tribunal directed the Parties to prepare and file an Issues List and draft Procedural Order setting out the issues to be adjudicated, due dates for the exchange of documents, and other procedural aspects for the hearing. Subsequent to the CMC, the Parties informed the Tribunal that they were unable to agree on an Issues List. Through the Tribunal’s Case Coordinator, the Tribunal directed them to file written submissions on the proposed issues. The final submissions were received on June 10, 2021.

7The issues in dispute are Issue Nos. 5, 6, 9 and 11 as set out in the Issues List filed with the Tribunal by the Director on June 10, 2021. The Appellant argues that it is necessary that issues regarding the appropriateness of using certain odour concentration measurements as legal compliance and enforcement mechanisms, the effects of updates to atmospheric dispersion models, associated meteorological data files and terrain elevation files, and variations in perception of odour must first be determined before assessing the appropriateness of the ECA’s provisions. The Director submits that the Appellant’s wording for each of these proposed issues addresses matters that are beyond the Tribunal’s jurisdiction to adjudicate. The Director submits that each issue should specifically address the instrument under appeal and the Tribunal cannot make declarations regarding measurements, models or human perception in general.

8The Appellant’s proposed Issue No. 5 is:

5. Does the measurement of odour concentration, expressed in Odour Units, following European Standard EN13725: 2003, as required by the Ontario Source Test Code, Part G - Method ON-6: Determination of Odour Emissions from Stationary Sources, have the established scientific basis, accuracy, and precision needed to be:

a. a legal compliance and enforcement mechanism, and

b. a limit in Darling International Moorefield’s ECA?

9The Director proposes that Issue No. 5 should read:

5. Does the measurement of odour concentration, expressed in Odour Units, following European Standard EN13725: 2003, as required by the Ontario Source Test Code, Part G - Method ON-6: Determination of Odour Emissions from Stationary Sources, have the established scientific basis, accuracy, and precision needed to be a legal limit in Darling International Moorefield’s ECA?

10The Appellant’s proposed Issue No. 6 is:

6. Is there certainty or uncertainty associated with odour concentration measurements of environmental samples following EN13725: 2003, and is that level of certainty or uncertainty, combined with changes associated with dispersion modelling, appropriate as:

a. a legal compliance and enforcement mechanism, and

b. a limit in Darling International Moorefield’s ECA?

11The Director proposes that Issue No. 6 should read:

6. Is there certainty or uncertainty associated with odour concentration measurements of environmental samples following EN13725: 2003, and is that level of certainty or uncertainty, combined with changes associated with dispersion modelling, appropriate for a legal limit in Darling International Moorefield’s ECA?

12The Appellant’s proposed Issue No. 9 is:

9. Do periodic updates to approved atmospheric dispersion models, associated meteorological data files and terrain elevation files affect predicted odour concentration and compliance or non-compliance with an Odour Performance Limit? If yes, how and in what circumstances? If yes, what effect, if any, does this have on Darling International’s predicted odour concentration and compliance or non-compliance with the Odour Performance Limit in Darling International’s Approval?

13The Director proposes that Issue No. 9 should read:

9. Do periodic updates to approved atmospheric dispersion models, associated meteorological data files and terrain elevation files affect Darling International Moorefield’s predicted odour concentration and compliance or non-compliance with an Odour Performance Limit? If yes, how and in what circumstances?

14The Appellant’s proposed Issue No. 11 is:

11. Does an Odour Performance Limit measured in Odour Units take into account physiological factors associated with odour, the ability of humans to identify odour, variation in human odour perception, variation of human perception of n butanol, and whether the human experience of odour is or is not highly subjective? If yes, how and in what circumstances? And, how do these variations impact Darling International’s compliance or non-compliance with the Odour Performance Limit in Darling International Moorefield’s EPA, s. 9 Approval?

15The Director submits that Issue No. 11 should be deleted.

Findings

16An Issues List is intended to set out the issues to be adjudicated by the Tribunal. It should be specific enough so that each party is made aware of all the issues to be addressed and can properly prepare for the hearing and call the necessary evidence. The issues should only include questions that need to be adjudicated and that are within the Tribunal’s authority to address. The issues to be adjudicated must be triable and capable of adjudication. Background facts and evidence are not issues. Concerns or questions seeking the Tribunal to make a general declaration on a subject are neither within the Tribunal’s mandate nor are they necessary for the Tribunal to adjudicate an appeal.

17In the present case, the Tribunal finds that general issues that the Appellant seeks to have the Tribunal address may be matters on which the Tribunal may receive background evidence, however, the focus of the Tribunal’s decision must be on the ECA and the specifics at the facility in question. Evidence and submissions providing background and context on methodologies, modelling, and applicable science may be of assistance to the Tribunal in adjudicating the appeal, but the Tribunal does not have the authority to make general declarations regarding them. The Tribunal finds that the language proposed by the Director focuses on the ECA and the Facility and is appropriate wording for Issue Nos. 5, 6, and 9 (as set out in paragraphs 9, 11, and 13 above). The Tribunal finds that answers to the questions raised in Issue No. 11 may be relevant as background evidence, but the focus of the issue for adjudication must be on the ECA and the Facility. The Tribunal finds that the following abridged language for Issue No. 11 is appropriate:

11. How do variations in odour perception, if any, impact Darling International’s compliance or non-compliance with the Odour Performance Limit in Darling International Moorefield’s EPA, s. 9 Approval?

The Tribunal approves the Issues List and a draft Procedural Order with the wording for the Issues proposed by the Director for Issue Nos. 5, 6, and 9 and as revised by the Tribunal for Issue No. 11.

Opportunities for Settlement Discussions

18At the CMC, the Parties stated that they have engaged in settlement discussions, but have been unable to reach an agreement. The Appellant stated that given the nature of the dispute, it does not believe that the case is amenable to mediation. The Tribunal urged the Parties to continue settlement discussions.

Scheduling of the Hearing

19At the CMC, the Parties identified the types of witnesses that they intend to call and the time required for a hearing. The Tribunal scheduled a three-week hearing commencing on April 4, 2022.

Proposed Amendment to the ECA’s Due Dates

20On May 19, 2021 and July 7, 2021, the Parties submitted a written request and submissions to the Tribunal seeking to extend the due date in the ECA’s Condition 1.1 on implementation of the required odour limits. Condition 1.1 states:

1. Performance Conditions

2. By April 1, 2022, the maximum 10-minute average concentration of odour at a Sensitive Receptor, resulting from the operation of the Facility, including fugitive emissions, shall not be greater than the Odour Performance Limit.

21The Parties submit that with the hearing scheduled to commence on April 4, 2022, a decision on the appeal will not be made until after the April 1, 2022 due date has passed. The Parties request, on consent, to having the due date extended to October 1, 2022. In their submissions, the Parties state that the Appellant is continuing to make efforts to reduce odour emissions and to consult with the community. They submit that the proposed extension would not cause harm to the environment and would streamline the proceeding by avoiding the need for a stay motion hearing. Based on these submissions, the Tribunal finds that the requested amendment is consistent with the purpose and provisions of the Environmental Protection Act and is in the public interest. Given the scheduling of the hearing for April 2022 and the consent of the Parties, the Tribunal approves the requested amendment to the ECA.

Other Items – Site Visit Request

22At the CMC, the Appellant requested that a site visit be ordered. The Tribunal defers this request to the Panel hearing the appeal.

ORDER

23The Tribunal approves the draft Procedural Order and Issues List appended as Schedule 1 to this Order and Decision.

24The Tribunal orders that Condition 1.1 of the ECA is amended so that it now states:

1. Performance Conditions

2. By October 1, 2022, the maximum 10-minute average concentration of odour at a Sensitive Receptor, resulting from the operation of the Facility, including fugitive emissions, shall not be greater than the Odour Performance Limit.

25The Tribunal orders that the hearing of the appeal will commence by video on Monday, April 4, 2022 at 10 a.m. Fifteen days have been set aside for the hearing.

26The Case Coordinator will provide the call-in details.

27This Member is not seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.

SCHEDULE 1

Ontario Land Tribunal 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll Free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunal ontarien de l’aménagement du territoire 655 rue Bay, suite 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web: olt.gov.on.ca

Procedural Order for Video Hearings

1 Purpose of the Procedural Order

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

CASE NO(S).:

PROCEEDING COMMENCED UNDER section 139(2)(b) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended

Applicant(s)/Appellant(s):

Darling International Canada Inc.

Subject:

Conditions on an amended environmental compliance approval for the processing of Animal By-products in the Darling International Moorefield Rendering Plant

Property Address/Description:

8406 Wellington County Road #7

Municipality:

Mapleton Township

Municipal File No. (specify):

N/A

OLT Case No.:

20-033

OLT File No. (specify associated file PL number(s) if any):

N/A

OLT Case Name:

Darling International Canada Inc. v. Ontario (Environment, Conservation and Parks)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on at a.m. via videoconference

3. The parties’ initial estimation for the length of the hearing is days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before September 30, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before November 15, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 17, 2021.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before January 28, 2022, the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before January 28, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before March 21, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence by February 11, 2022.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 25, 2022.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before March 21, 2022.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 21, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1 – Parties and Presenters

The Parties:

1. Darling International Canada Inc. (Appellant) Attention: Duff Moore 8406 Wellington County Road 7, R.R. #1 Moorefield, ON N0G 2K0 T: 519-931-4402 / M:226-979-8297 Email: duff.moore@darlingii.com Counsel:

Marc McAree

Willms & Shier Environmental Lawyers LLP

1 Toronto Street, Suite 900

Toronto, ON M5C 2V6

T: 416-862-4820

Email: mmacaree@willmsshier.com

Anand Srivastava

Willms & Shier Environmental Lawyers LLP

1 Toronto Street, Suite 900

Toronto, ON M5C 2V6

T: 416-862-4829

Email: asrivastava@willmsshier.com

Lauren Wortsman

Willms & Shier Environmental Lawyers LLP

1 Toronto Street, Suite 900

Toronto, ON M5C 2V6

T: 416-642-4873

Email: lwortsman@willmsshier.com

2. Director, Ministry of the Environment, Conservation and Parks (Respondent) Attention: Rudolf Wan 135 St. Clair Ave. W., 1st Floor Toronto, ON M4V 1P5 T: 416-992-4379 Email: Rudolf.Wan@ontario.ca

Counsel: Nadine Harris Ministry of the Environment, Conservation and Parks, Legal Services Branch 135 St. Clair Ave. W., 10th Floor, Toronto, ON M4V 1P5 T: 647-688-8724 Email: Nadine.Harris@ontario.ca Amanda Landre Ministry of the Environment, Conservation and Parks, Legal Services Branch 135 St. Clair Ave. W., 10th Floor, Toronto, ON M4V 1P5 T: 647-267-3437 Email: Amanda.Landre@ontario.ca

Participants:

1. Ontario Waste Management Association Attention: Mike Chopowick Suite 580 – 170 Attwell Drive Etobicoke, ON M9W 5Z5 T: 416-674-1542 Email: mchopowick@owma.org

2. Wellington Federation of Agriculture Attention: Janet Harrop 7764 Nichol SR 5 RR#1, Fergus, ON N1M 2W3 T: 519-820-9293 Email: ijharrop@hsfx.ca

3. Township of Mapleton Attention: Mayor Gregg Davidson 7275 Sideroad 16 Drayton, ON N0G 1P0 T: 519-638-3313 Email: gdavidson@mapleton.ca

Attachment 2 – Issues List of Darling

Issue 1: Odour Performance Limit at Sensitive Receptors (ECA Condition 1.1)

1. Did the operational changes made by Darling International reduce odour impacts in the community? Have these operational changes helped to reduce predicted odour concentrations in the community?

2. Have the odour control investments made by Darling International Moorefield helped to reduce odour impacts in the community? Have these investments helped to reduce predicted odour concentrations in the community?

3. Can Darling International Moorefield’s rendering operations consistently and/or feasibly achieve the 1.0 Odour Unit Odour Performance Limit as set out in Darling International Moorefield’s EPA, s. 9 Approval?

4. Are there environmental benefits and environmental disbenefits if Darling International Moorefield’s rendering plant operations are interrupted, curtailed or cease, or if the plant operates in non-compliance with a 1.0 Odour Unit Odour Performance Limit in Darling International Moorefield’s EPA, s. 9 Approval?

5. Does the measurement of odour concentration, expressed in Odour Units, following European Standard EN13725: 2003, as required by the Ontario Source Test Code, Part G - Method ON-6: Determination of Odour Emissions from Stationary Sources, have the established scientific basis, accuracy, and precision needed to be a legal limit in Darling International Moorefield’s ECA?

6. Is there certainty or uncertainty associated with odour concentration measurements of environmental samples following EN13725: 2003, and is that level of certainty or uncertainty, combined with changes associated with dispersion modelling, appropriate for a legal limit in Darling International Moorefield’s ECA?

7. Does any exceedance of that same laboratory-derived 1.0 Odour Unit serve as a predictor of any potential adverse effect in the community nearest Darling International Moorefield’s rendering plant? Does any exceedance of that same laboratory-derived 1.0 Odour Unit give rise to a breach of Darling International Moorefield’s EPA, s. 9 Approval?

8. Have historical odour concentrations at sensitive receptors near the Darling International Moorefield rendering plant been shown to correlate with there being any potential adverse effects from Darling International Moorefield’s rendering plant? Does the correlation demonstrate that achieving an Odour Performance Limit of 1.0 Odour Unit reduces or eliminates any potential adverse effects from Darling International Moorefield rendering plant?

9. Do periodic updates to approved atmospheric dispersion models, associated meteorological data files and terrain elevation files affect Darling International Moorefield’s predicted odour concentration and compliance or non-compliance with an Odour Performance Limit? If yes, how and in what circumstances?

10. Is there accurate, verified, and complete information about odour complaints that justifies the inclusion of an Odour Performance Limit in Darling International Moorefield’s Approval?

11. How do variations in odour perception, if any, impact Darling International’s compliance or non-compliance with the Odour Performance Limit in Darling International Moorefield’s EPA, s. 9 Approval?

12. Does the incorporation of an Odour Performance Limit expressed in Odour Units in Darling International Moorefield’s EPA, s. 9 Approval strike a fair and reasonable balance between the interests of Darling International Moorefield’s operation of a rendering plant in Moorefield and the protection of the environment?

13. Is an Odour Performance Limit, expressed in Odour Units, an appropriate, reliable and certain legal compliance and enforcement mechanism for incorporation into Darling International Moorefield’s EPA, s. 9 Approval?

14. Should the Darling International Moorefield’s EPA, s. 9 Approval include an Odour Performance Limit at sensitive receptors?

a. If yes, should that limit be 1.0 Odour Unit or a limit other than 1.0 Odour Unit?

b. If yes, by which date should the ECA require compliance with that limit?

c. If no, is there an appropriate alternative to regulating odour from Darling International Moorefield’s rendering plant?

15. Or, as an alternative, is there utility, practicality and fairness associated with incorporating an Odour Abatement Plan requirement into Darling International Moorefield’s EPA, s. 9 Approval?

Issue 2: Odour Removal Efficiencies in Biological Oxidation System (ECA Condition 5.8(e))

1. Should Darling International Moorefield’s EPA, s. 9 Approval require Darling International Moorefield to quantify and report the odour removal efficiencies of the biological oxidation system (Condition 5.8(e))?

2. Is the measurement of biofilter odour removal efficiency a relevant and representative metric for Darling International Moorefield’s ECA when what is relevant is the quality of odour emissions emanating from the biofilter, and practical efforts to mitigate odour impacts to nearby sensitive receptors?

3. Is it reasonable and fair for the EPA, s. 9 Approval to require that Darling International Moorefield measure odour removal efficiency of the biofilter when what is relevant is the quality of odour emissions emanating from the biofilter and practical efforts to mitigate odour impacts to nearby sensitive receptors?

Attachment 3 – Order of Evidence

1. Director;
2. Darling International;
3. Participants;
4. Reply by Director, if any.

Document #: 1968217