Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 20, 2021

CASE NO(S).: 21-027

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

Applicant: Municipality of Clarington (21-027)

Applicant: Wendy Bracken (21-028)

Applicant: Linda Gasser (21-029)

Instrument Holder: St. Marys Cement Inc. (Canada)

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

Subject of leave to appeal: Decision to issue an Amended Environmental Compliance Approval under section 20.3 of Part II.1 of the Environmental Protection Act to expand the use of Alternative Low-Carbon Fuels at the cement manufacturing facility

Reference No.: 0051-BN9Q3S

Property Address/Description: 410 Bowmanville Avenue

Municipality: Bowmanville

Upper Tier: Regional Municipality of Durham

ERT Case No.: 21-027

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

Heard: In writing

APPEARANCES:

Parties

Counsel

Wendy Bracken and Linda Gasser

Self-represented

Municipality of Clarington

Robert Maciver

Director, Ministry of the Environment, Conservation and Parks

Kathleen Clements and Amanda Landre

St. Marys Cement Inc. (Canada)

Leonard J. Griffiths and Sarah Gilbert

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

BACKGROUND

1St. Marys Cement Inc. (Canada) (“Approval Holder”) operates a Portland Cement manufacturing plant (“Facility”) located in Bowmanville, in the Municipality of Clarington (“Municipality”).

2In 2015, the Director (“Director”), Ministry of Environment, Conservation and Parks (“MECP”) issued amended Environmental Compliance Approval No. 0469-9YUNSK (“2015 ECA”), which regulates the emissions from the Facility’s quarry operations, raw material and fuel processing, clinker production (including kiln and calciner operations), and cement production. It allows for the use at the Facility of alternative fuels consisting of woody biomass, up to 10% non-woody material such as plastic, asphalt shingles, laminate, surface coatings and other material, and up to 5% treated wood. The Facility is permitted to use 96 tonnes per day of alternative fuels or 4% based on heating value.

3Seeking to increase the amount of alternative fuels permitted to be used at the Facility, the Approval Holder obtained approval from the Director for a time-limited demonstration study to substitute up to 30% of its conventional fuels with alternative low carbon fuels. Reports on the demonstration project were completed in May 2019.

4On March 31, 2021, the Director issued amended Environmental Compliance Approval No. 6729-BYRJEP (“proposed ECA Amendment”) permitting an increase in the approved maximum consumption rate of alternative low carbon fuels at the Facility from 96 tonnes per day to 400 tonnes per day. It requires the installation of new equipment at the Facility to accommodate the increased use of these fuels, an increase in the Facility’s alternative fuel storage capacity, and changes to cement kiln process parameter monitoring. The proposed ECA Amendment sets out new conditions, including:

a. Condition 7.1: expanding the list of approved alternative low carbon fuels to include biomass, non-recyclable plastics construction, renovation and demolition waste, and non-recyclable paper fiber/wood/plastic composites;

b. Condition 7.2: requiring the Approval Holder to ensure that the fuel materials are not derived from material restricted under Ontario Regulation 79/15 on alternative low carbon fuels;

c. Condition 7.3: increasing the approved maximum consumption rate of approved alternative low carbon fuels from 96 tonnes per day to 400 tonnes per day;

d. Condition 8.4: requiring the preparation of procedures for approved alternative low carbon fuels handling, storage, maintenance and conveyance;

e. Condition 8.8: limiting alternative low carbon fuels storage locations, amounts, and time periods;

f. Condition 9.1: requiring the Approval Holder to conduct material analysis of the alternative low carbon fuels;

g. Condition 12: requiring the Approval Holder to conduct annual carbon dioxide emission intensity testing of the alternative low carbon fuels and conventional fuels and prepare a carbon dioxide emission intensity report in accordance with Regulation 79/15; and,

h. Condition 16: requiring the Approval Holder to prepare and submit an annual compliance report to the MECP and make it available to the public.

The Leave Applications

5On April 15, 2021, the Municipality filed an application to the Tribunal under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”) seeking leave to appeal the Director’s decision to issue the proposed ECA Amendment. The Municipality seeks leave to appeal the following aspects of the proposed ECA Amendment:

a. Condition 1.2 on approving the use of alternative low carbon fuels at the Facility;

b. Conditions 7.1.b., 7.1.c and 7.1.d on additional types of approved alternative low carbon fuels;

c. Condition 10.1.a on the parameters required to be continuously monitored;

d. Schedule B on performance requirements regarding in-stack emission limits;

e. Schedule G on test contaminants and sources; and,

f. the absence of conditions in the proposed ECA Amendment requiring a comprehensive ambient air quality monitoring programme.

6On April 16, 2021, Wendy Bracken and Linda Gasser (“Bracken and Gasser”) also filed an application for leave to appeal. They did not identify specific provisions in the proposed ECA Amendment that they seek to appeal. The Tribunal will proceed on the basis that they seek leave to appeal it in its entirety.

Evidence and Submissions filed regarding the Leave Applications

7The Municipality filed submissions along with a memorandum prepared by Hamish Corbett-Hains, dated October 23, 2020. Mr. Corbett-Hains is a Senior Air Quality Engineer with Dillon Consulting Limited (“Dillon”).

8Bracken and Gasser filed submissions along with reports prepared by Scott Grant, dated April 12, 2021 and May 27, 2021, and reports and letters written by Paul Connett, dated August 22, 2020, April 13, 2021, and May 28, 2021. Mr. Grant is an air pollution control engineer. Dr. Connett is an environmental chemist and toxicologist.

9The Director responded with submissions and an affidavit sworn by Sushant Agarwal, dated May 20, 2021, and an affidavit sworn by Rudolph Wan, dated May 19, 2021. Mr. Agarwal is a senior air review engineer with the MECP. Mr. Wan is a Manager in the Approval Services Unit (Air) of the MECP’s Environmental Permissions Branch. He is the Director who issued the proposed ECA Amendment.

10The Approval Holder responded to the leave applications with submissions as well as witness statements prepared by Sean Capstick, dated May 19, 2021, and Bridget Mills, also dated May 19, 2021. Mr. Capstick is a professional engineer with Golder Associates Ltd. Ms. Mills is a senior environmental engineer with BCX Environmental Consulting.

1. Standing to Seek Leave to Appeal

11Section 38(1) of the EBR sets out the test for standing to seek leave to appeal. It states:

38 (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:

1. The person seeking leave to appeal has an interest in the decision.

2. Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.

12Neither the Director nor the Approval Holder disputes that the Municipality and Bracken and Gasser (together, “Applicants”) satisfy these requirements and have standing to seek leave to appeal. Each is a legal person, each is resident in Ontario, and each made submissions during the MECP’s public consultation process and has an interest in the Director’s decision. The Director’s decision addresses whether to implement a proposal for an EBR Class I or II Instrument and the Approval Holder has a right to appeal the Director’s decision under s. 139 of the Environmental Protection Act (“EPA”).

13The Tribunal finds that the Municipality, Ms. Bracken, and Ms. Gasser satisfy the requirements for standing under s. 38(1) of the EBR.

2. The Leave Tests

14The tests that the Tribunal must consider when adjudicating applications for leave to appeal under the EBR are set out in s. 41. They consist of a reasonableness test and a significant environmental harm test. Each must be satisfied for an applicant to be granted leave to appeal. Section 41 states:

41. 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.

15These tests are each addressed below.

A. The Reasonableness Test

16Section 41 of the EBR states that leave will not be granted unless specific requirements are met. As noted by the Tribunal in Corporation of the City of Guelph v. Director, Ministry of the Environment, 2014 CarswellOnt 5932, [2014] O.E.R.T.D. No. 25, at para. 26, the focus of the test is on the apparent reasonableness of the decision. To satisfy the test, the Applicants must show that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision. The Tribunal must consider the manner in which the decision was reached, what was considered, and the decision itself to determine whether the test is satisfied. The test is not whether the Director’s decision could have been improved, made in a different manner, or whether there is evidence in support of a different decision. There must be good reason to believe that the decision is outside the range of reasonable decisions that were possible given the facts and the applicable laws and policies.

17The standard of proof in leave to appeal applications is the establishment of a prima facie case. The Applicants must establish that “there is a real foundation, sufficient to give the [Applicants] a right to pursue the matter through the appeal process” (see Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC)("Lafarge"), at para. 45).

A. The Municipality’s Application for Leave

18The Municipality alleges that the Director’s decision is unreasonable because:

1. it fails to require the Approval Holder to meet the same standards required for the nearby Durham York Energy Centre; and,

2. it fails to provide for on-going, off-site monitoring to address cumulative effects of emissions in the local airshed.

19The Tribunal will consider each of these below.

1. Standards to be Used

20The Municipality submits that the proposed ECA Amendment should maintain the standards set out in the 2015 ECA and meet the standards required for the nearby Durham York Energy Centre, which is located roughly 4 kilometres from the Facility. It submits that the proposed ECA Amendment changes and increases the composition and quantity of approved fuels used at the Facility, but does require the same regulatory standards as the 2015 ECA or the Durham York Energy Center. It submits that the proposed ECA Amendment does not include a total halogens limit and does not require testing for aluminum, titanium, magnesium, boron, phosphorus, potassium, antimony, tin, strontium, and iron. Testing for each of these was required in the 2015 ECA.

21The Municipality submits that the Approval Holder’s demonstration study and the Director did not fully assess all the alternative low carbon fuels types permitted under the proposed ECA Amendment. As a result, it submits that emissions from blends of different types of alternative low carbon fuels will not be properly regulated under the proposed ECA Amendment. The Municipality submits that to limit the potential for increased environmental harm, a reasonable person would have imposed conditions enforcing stringent standards and prohibiting the use of dangerous materials, such as those containing polyfluoroalkyl substances (PFAS). It submits that the Facility and the Durham York Energy Center are both thermal treatment facilities, both burn waste, and they are located close to one another. It submits that the proposed ECA Amendment should therefore require the Facility to meet the same standards as those applied to the Durham York Energy Center. It submits that the proposed ECA Amendment should require emissions limits and monitoring requirements equivalent to those for the Durham York Energy Center, a limitation on the types of approved fuels to those used in the demonstration study, and updated ambient air emissions monitoring.

22The Director submits that the Durham York Energy Center is a waste management facility that produces energy from the combustion of general household wastes, whereas the Facility is approved to use only defined categories of alternative low carbon fuels. He submits that the variability in the quality and contents of household waste used at Durham York Energy Center is much greater than the limited alternative low carbon fuels materials approved for use at the Facility. He submits that the Approval Holder will enter into contracts with alternative low carbon fuel suppliers that produce a consistent supply of excess non-recyclable material for burning. In his affidavit, Mr. Agarwal states that the use of alternative low carbon fuels to substitute a portion of conventional fuels used at the Facility is not comparable to the burning of municipal waste at the Durham York Energy Center. He states that the facilities use different technologies and produce different emissions. He states that the thermal process at a cement plant uses a kiln operating at 1,550°C with a long retention time in order to produce clinker. The Director submits that the use of alternative low carbon fuels in a cement kiln are not introduced into the process until a minimum temperature is reached to promote complete combustion of the material and to minimize the production of incomplete products of combustion. He submits that the potential for upset conditions leading to incomplete combustion are much lower at a cement kiln than they are in a municipal thermal treatment facility. He states that different approval considerations apply to these facilities and different requirements are needed to ensure compliance with the MECP’s standards.

23The Approval Holder also submits that the Durham York Energy Center is a municipal waste thermal treatment facility and is subject to distinct regulatory requirements from those required for the Facility. The Approval Holder submits that the in-stack emission limits in the proposed ECA Amendment are essentially the same as those in the 2015 ECA and comply with the MECP’s Guideline A-7 for cement kilns. It submits that the proposed ECA Amendment requires continuous emissions monitoring in the kiln stack and sets out annual source testing requirements. It submits that the Applicants seek the imposition of the same emission limits as those required for the Durham York Energy Center despite the fact that it is a different type of facility, with different regulatory requirements, and different approvals.

Findings on the Standards to be Used

24The Municipality submits that the proposed ECA Amendment should have at least the emissions requirements that were in the 2015 ECA and equivalent requirements to those for the Durham York Energy Center. The Municipality retained Dillon to review the Approval Holder’s supporting materials. Dillon concurred with the Municipality’s concerns and recommendations, however, it also found that the approach and analysis of the Approval Holder’s studies appeared to be reasonable and aligned with provincial guidance and best practices. Dillon found that the Approval Holder’s conclusions on expected emissions were reasonable and that additional studies were not needed to characterize emissions or to characterize the cumulative impacts to air quality. Dillon confirmed that the increase in the use of low carbon emission fuels would lead to an insignificant increase in emissions and local airshed impacts.

25The Tribunal finds that based on the submissions and evidence before it, the Director considered different options regarding the standards to be applied and considered the applicable regulatory and policy requirements. Based on the Municipality’s own evidence, the Tribunal finds that the Approval Holder’s conclusions on expected emissions are reasonable, additional studies are not needed to characterize emissions or cumulative impacts to air quality, and the expanded use of low carbon emission fuels at the Facility will lead to an insignificant increase in emissions and local airshed impacts. Although the Municipality’s comments and recommendations could improve the proposed ECA Amendment, the Tribunal finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

2. Monitoring to address Cumulative Effects in the Local Airshed

26The Municipality submits that stronger requirements for continuous emissions monitoring and requirements for ambient air monitoring should be included in the proposed ECA Amendment. It submits that while the proposed ECA Amendment requires annual source testing, this only provides a small sample each year. The Municipality submits that based on the types and quantity of emissions expected from the Facility, a comprehensive monitoring regime should be required and cumulative loading in the local air shed should be monitored. It submits that the Director had the discretion to require ambient air monitoring, but did not. It submits that without ambient air monitoring, tracking performance will be challenging. It submits that better monitoring would ensure the identification of emissions of concern and ensure that potential harm to the community is identified and addressed. It submits that the local airshed is already burdened and the cumulative effects of the expanded use of alternative low carbon fuels at the Facility along with emissions from the Durham York Energy Center and other emitters is a concern.

27The Director submits that the monitoring requirements in the proposed ECA Amendment are based on Regulation 419/05 and Guideline A-7, the Approval Holder’s cumulative effects assessment study, and considerations related to cement kiln operating conditions. Mr. Agarwal states that ambient air monitoring requirements for the Durham York Energy Center were required as part of the environmental assessment approval for that project and that such an approval is not required in the present case under s. 9 of the EPA, Regulation 419/05, or Regulation 79/15. He states that data on the impacts of the Facility’s emissions on local air quality are within the standards in Regulation 419/05. He submits that the Approval Holder’s cumulative impacts study shows that there would not be significant changes in local air quality due to the proposed use of alternative low carbon fuels at the Facility.

28The Approval Holder submits that its cumulative effects assessment report shows that after considering ambient air quality from other emission sources within the local air shed, including the Durham York Energy Center and the nearby Highway 401, no significant cumulative local air quality impacts in the community are expected.

Findings on Monitoring to address Cumulative Effects on the Local Airshed

29The Municipality has expressed concerns regarding the cumulative impacts on the local airshed from having two thermal treatment facilities producing emissions in close proximity to one another. It submits that the emissions must be comprehensively monitored. The Approval Holder has produced a cumulative effects assessment report that finds the expanded use of alternative low carbon fuels at the Facility will not have significant cumulative effects on the local airshed. The Director submits that the monitoring requirements in the proposed ECA Amendment satisfy the requirements in Regulation 419/05 and Guideline A-7.

30The Tribunal finds that based on submissions and evidence before it, the Director considered the projected emissions, the cumulative effects of the proposed operations at the Facility, and the applicable regulatory and policy requirements. Included in the Director’s assessment was the Approval Holder’s cumulative effects assessment report, which finds that the expanded use of alternative low carbon fuels at the Facility will not have significant cumulative effects on the local airshed. Based on these considerations, the Director determined the monitoring requirements for the proposed ECA Amendment. The Tribunal finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

B. Bracken and Gasser’s Application for Leave

31Bracken and Gasser submit that the Director’s decision is unreasonable because the Director did not properly consider:

1. the MECP’s Statement of Environmental Values (“SEV”) as required under s. 7 and s. 11 of the EBR, including:

a. pollution prevention and minimizing the creation of pollutants;

b. adaptive management;

c. precautionary approach; and

d. cumulative effects and ecosystem approach;

2. public participation;

3. Ontario Regulation 419/05; and,

4. MECP Guidelines A-7 and A-12.

They submit that a jurisdictional review, more stringent stack emissions limits, and enhanced ambient monitoring, among other things, need to be included in the proposed ECA Amendment.

32The Tribunal will consider each of these below.

1. The SEVs

(a) Pollution prevention and minimizing the creation of pollutants

Bracken and Gasser’s Evidence and Submissions

33Bracken and Gasser submit that the proposed ECA Amendment does not seek to minimize or prevent the emission of pollutants and will result in challenges in the identification of the sources of future emission exceedances. They submit that the proposed ECA Amendment would roughly quadruple the use of solid waste-derived fuels at the Facility. They submit that the increased range of fuels include harmful substances and untested blends of such substances. They submit that source testing requirements for many contaminants under the 2015 ECA are not required under the proposed ECA Amendment.

34Bracken and Gasser submit that residential areas are located near the Facility and the Facility’s emission will have health impacts on residents. They submit that the Facility will emit respiratory irritants, fine particulate matter, and highly toxic pollutants that accumulate in the environment. They submit that pollutants that will be emitted include nitrogen oxides, sulphur dioxide and carbon monoxide, metals/metal oxides and organic compounds, as well as ammonia and hydrogen chloride. They submit that limits on total halogen content in materials to be burned were in the 2015 ECA, but have been removed. They submit that substances that are known to be particularly harmful, including polyvinyl chloride (PVC) and per- and polyfluoroalkyl substances (PFAS), should have been banned from use.

35Bracken and Gasser submit that the Approval Holder’s demonstration study was insufficient to determine the emission impacts of the use of the proposed alternative fuels permitted, did not adequately test the full scope of fuels or blends that would be permitted, and was limited in time. They submit that the proposed ECA Amendment will permit the burning of a wide range of fuels, in untested blends, and from various sources. They submit that the demonstration study found that the chemical composition varied significantly between the two alternative blends tested and between samples of the same fuel, raising concerns regarding the limited data relied upon. They submit that the fuels should be restricted to only the blends that were tested. They further submit that data collected from the Approval Holder’s demonstration study indicate that when alternative low carbon fuels were used, kiln stack emission rates increased for roughly 30% of chemicals of potential concern. They submit that emission rates for particulate matter (PM 10, PM 2.5), dioxins and furans, heavy metals, sulphur dioxide, and polyaromatic hydrocarbons (PAHs) and other contaminants increased when alternative low carbon fuels were burned during the demonstration study.

36Bracken and Gasser submit that the Director used outdated standards to evaluate air impacts and he failed to identify problems. They submit that had updated and forthcoming standards been applied (such as the updated relevant Canadian Ambient Air Quality Standards and the forthcoming Regulation 419/05 requirements for sulphur dioxide emissions), the demonstration study would have shown that emissions exceeded criteria for nitrogen oxides and sulphur dioxide. Mr. Grant states that the MECP’s Guideline A-7 also is outdated and less stringent than regulations in the United States. Bracken and Gasser submit that an appropriate health assessment of PM 2.5 should have been completed and continuous emissions monitoring for PM 2.5 should have been required. Noting that dioxins and furans are formed at lower temperatures downstream of the kiln, Bracken and Gasser raise concerns regarding the emission of these pollutants and the absence of requirements for ambient air monitoring and continuous sampling for them. Mr. Grant found that dioxin and furan measurements at local monitoring stations are significantly higher than median measurements examined in studies in the United States. Bracken and Gasser submit that new science on dioxin and furans and fluorinated by-products should have been considered. They submit that the emissions limits for these pollutants are inadequate and that the stack emissions limits for mercury, cadmium, and other pollutants are insufficient and less stringent than those required for the Durham York Energy Center and for facilities in the United States.

37Bracken and Gasser raise concerns that the proposed ECA Amendment and the Approval Holder’s supporting documents do not adequately address nanoparticles, fluorinated dioxins, furans and biphenyls, polyfluoroalkyl substances (PFAS) and other fluorinated products of incomplete combustion (PIC). Referring to Dr. Connett’s recommendations, they state that fuel materials burned at the Facility would include waste containing polyfluoroalkyl substances (PFAS) that never fully break down in the environment and result in formation of products of incomplete combustion (PIC). Dr. Connett states that the proposed ECA Amendment should include a comprehensive screening plan to prevent polyfluoroalkyl substances (PFAS) from entering the Facility. Bracken and Gasser submit that regulations and monitoring requirements for nanoparticles are needed and the unintentional formation and emission of persistent organic pollutants (POPs) from the Facility needs to be studied and potential risks assessed.

38Dr. Connett states that the proposed ECA Amendment allows the Facility to emit 5 to 10 times the amount of pollutants into the environment as the Durham York Energy Center when burning an equivalent amount of the same waste. He states that stack emission concentration limits for cement kilns should be considerably more stringent than those for incinerators given the larger volumes of pollutants that cement kilns emit.

39Bracken and Gasser submit that based on Mr. Grant’s analyses, the combustion of solid materials results in variable air emissions that require a careful process, monitoring, and best available air pollution control to minimize environmental and health impacts. Mr. Grant recommends that a jurisdictional review and technology benchmarking assessment be undertaken to ensure that the best available air pollution control is employed at the Facility.

40Bracken and Gasser submit that although the proposed range of materials to be burned has expanded, the proposed ECA Amendment does not require ambient air monitoring making the identification of problems difficult. Mr. Grant found the existing air monitoring network is limited and does not likely measure the maximum concentrations of contaminants from either the Facility or the Durham York Energy Center. Bracken and Gasser cite calls from the Region of Durham and the Municipality for better air testing and monitoring and access to and reporting of monitoring data. They note recommendations from the Municipality that real time ambient air quality monitoring should be required.

41Bracken and Gasser submit that given the uncertainties regarding waste composition and fuel blends, emissions, the lack of comprehensive monitoring, and limited public reporting required, the Director’s decision is not reasonable. They submit that a reasonable person would have required additional safeguards, imposed additional conditions, and required comprehensive monitoring.

Director’s Evidence and Submissions

42The Director submits that the potential variability of fuel blends was considered and conditions on testing and monitoring were included in the proposed ECA Amendment. He submits that the use of alternative low carbon fuels is restricted to specific types and fuel quality assurance is provided through vendor selection, fuel sampling, and testing to ensure quality and reduce variability. Mr. Agarwal states that the Approval Holder’s demonstration study considered representative alternative low carbon fuel materials that are permitted under the proposed ECA Amendment and the fuel blends consisted of the categories of alternative low carbon fuels that are approved in the proposed ECA Amendment.

43The Director submits that the required process characteristics at the Facility will lead to the destruction of organic matter and pollutants. These process characteristics include maintaining efficient combustion, restrictions on the use of alternative low carbon fuels during start-up and shut-down and malfunction conditions, and stoppage of the use of alternative low carbon fuels where operational criteria are not met or if there is malfunction of continuous process monitors. The Director also submits that the proposed ECA Amendment requires the rapid cooling of gases in the Facility’s pre-heaters and the conditioning towers to limit the formation of dioxins and furans in the Facility’s baghouses. The Director states that the proposed ECA Amendment’s air standards were set based on a science-based process, the decision to issue the proposed ECA Amendment was made based on science, and the Director’s review of the Approval Holder’s supporting materials was based on science. Mr. Agarwal states that the province’s air standards are based on the best scientific information available and set at levels that safeguard human health and the natural environment.

44Mr. Agarwal states that the proposed operations will comply with Regulation 419/05 and the MECP’s Guideline A-7 and that no air pollution reduction measures or action plans are required. He states that the Approval Holder’s demonstration study found no significant change in kiln stack emissions of contaminants. He also states that air dispersion modelling shows maximum ground level concentrations that meet the Regulation 419/05 standards and comply with the MECP’s Guideline A-7 stack emission limits.

45The Director also submits that continuous monitoring and recording of kiln process conditions and monitoring of other parameters will ensure continuous tracking of the kiln process parameters required for destruction of alternative low carbon fuels in the kiln. He submits that annual source testing of the cement kiln for a range of contaminants will assist in verifying compliance with the MECP’s requirements and air pollution control equipment at the Facility will treat combustion by-products. The Director submits that monitoring requirements in the proposed ECA Amendment are based on the requirements and guidelines in Regulation 419/05, the MECP’s Guideline A-7, and the Approval Holder’s cumulative effects assessment study. Mr. Agarwal states that the Approval Holder demonstrated that there will neither be significant impacts on local air quality nor significant cumulative impacts. As a result, Mr. Agarwal opines that ambient air monitoring is not needed.

Approval Holder’s Evidence and Submissions

46The Approval Holder submits that the proposed ECA Amendment does not permit the use of alternative low carbon fuels that are not authorized under Regulation 79/15. Ms. Mills opines that it is not necessary to test all possible blends of alternative low carbon fuels that could be used in the kiln. She states that it is appropriate to only test the different types of alternative low carbon fuels. The Approval Holder submits that the source of the alternative low carbon fuels is neither relevant nor within the Tribunal’s authority to address.

47Mr. Capstick states that cement manufacturing requires the cement kiln to be heated to approximately 1,550°C, which promotes complete combustion of the alternative low carbon fuels and produces no ash or by-products as non-combustible trace elements are incorporated into the cement product. He states that the types of alternative low carbon fuels permitted under the proposed ECA Amendment are specifically defined in the proposed ECA Amendment, are restricted to the fuels listed in Schedule 1 of Regulation 79/15, and would be subject to testing with respect to specific constituents and limits.

48Mr. Capstick states that although the maximum amount of alternative low carbon fuels permitted for use at the Facility has increased, the emission limits remain generally the same as those in the 2015 ECA. He states that the 2015 ECA required continuous emissions monitoring for opacity, which is replaced in the proposed ECA Amendment with continuous particulate emission monitoring to directly measure particulate matter. He states due to the installation of a wet scrubber, opacity measurements are not useful. He states that the proposed ECA Amendment requires ongoing carbon intensity measurements for the alternative low carbon fuels and ongoing data collection and record-keeping to document emissions and control alternative low carbon fuel use.

49Ms. Mills opined that there is no material change in air emissions from cement plants regardless of whether conventional fuels or a blend of conventional fuels and alternative low carbon fuels is being used. She states that the Approval Holder’s demonstration study found that emissions of 70% of the contaminants of potential concern decreased marginally or did not change when alternative low carbon fuels were used and that the increase in emissions related to 30% of the contaminants of potential concern was marginal. She disagrees with the submissions of Bracken and Gasser that emissions from the trials in the demonstration study varied widely.

50Ms. Mills states that the purpose of the Approval Holder’s demonstration study tested compliance with Regulation 419/05 at the maximum point-of-impingement, assessed significant changes in emissions from the cement kiln stack and point of impingement concentrations of the test contaminants, and assessed significant changes in ambient air concentrations resulting from the use of the proposed alternative low carbon fuels relative to baseline conditions. She opines that the study provided a reasonable, scientific basis upon which to assess the expanded use of alternative low carbon fuels. Along with annual source testing data on alternative low carbon fuel use at the Facility since 2015, testing at the Approval Holder’s cement plant in St. Marys, Ontario, and relevant data from similar facilities in other jurisdictions using alternative low carbon fuels, she opined that there are sufficient site-specific data to assess the proposed expanded use of alternative low carbon fuels at the Facility.

51Ms. Mills states that the maximum emission rates identified in the Approval Holder’s emissions summary and dispersion modelling report are higher than actual emission rates. She states that they are estimated based on the maximum equipment capacity and/or maximum activity at the Facility. She states that kiln stack emissions were scaled up to the maximum alternative low carbon fuels consumption rate of 400 tonne per day using the maximum emission values from the source tests, except for particulate, nitrogen oxides, sulphur dioxide, ammonia and carbon monoxide, which are not a function of the use of alternative low carbon fuels.

52Ms. Mills states that there is no provincial regulatory requirement to meet the Canadian Ambient Air Quality Standards. She states that Regulation 419/05 prescribes a point of impingement regulatory standard for nitrogen oxide and the emissions at the Facility are below those standards. She states that the Facility’s emissions of ammonia, hydrogen chloride, and hydrogen fluoride are well below the point of impingement standards and continuous emission monitoring would not be required for hydrogen chloride and hydrogen fluoride with the Facility’s installation of the wet scrubber reducing acid gas emissions. She states that there has never been a sulphur dioxide exceedance at the Facility.

53The Approval Holder submits that the Facility complies with the applicable particulate matter standards and that there are no applicable nanoparticle air quality standards. It submits that it assessed PM 2.5 in its cumulative effects assessment report, which showed that the maximum PM 2.5 concentrations in the area are low and there will be no significant changes as a result of using alternative low carbon fuels. She states that the emissions of particulate matter, lead and nickel, were within the range of emissions when conventional fuels and the approved alternative low carbon fuels were used under their 2015 ECA. Ms. Mills states that she is not aware of any basis for requiring continuous emissions monitoring for PM 2.5 at the Facility under the proposed ECA Amendment.

54The Approval Holder submits that dioxin and furan emissions from the Facility are well within the regulatory limit in Regulation 419/05. It submits that there is no evidence of a past exceedance of Ontario ambient air quality criteria for dioxins and furans as the result of emissions from the Facility. Ms. Mills states that the demonstration study showed that dioxin and furan emissions when using either convention fuels of alternative low carbon fuels were very low. Regarding monitoring requirements, the Approval Holder submits that the MECP’s Guideline A-7 does not require continuous emission monitoring for dioxins and furans and, given the low levels of dioxin and furan emissions from the Facility, such monitoring is not necessary.

55The Approval Holder submits that there are no applicable provincial air quality standards for polyfluoroalkyl substances (PFAS) and other fluorinated products of incomplete combustion (PIC). Ms. Mills opined that significant emissions of these types are not expected.

56The Approval Holder submits that the conditions in the proposed ECA Amendment prevent and minimize the release of contaminants associated with the expanded use of alternative low carbon fuels, while providing reductions in critical greenhouse gas emissions. It submits that the proposed ECA Amendment provides for stringent, robust, and protective conditions imposing layers of environmental protection. It submits that the Director proactively assessed the impacts of the decision in order to prevent the risk of environmental harm. It submits that its demonstration study assessed air emissions, the cumulative effects assessment report found that there would be no significant impacts to the local air shed, its emissions summary and dispersion modelling report confirmed compliance with applicable provincial air standards, and its carbon dioxide emissions intensity report found that there would be significant reductions in greenhouse gas emissions associated with the proposed use of alternative low carbon fuels.

Findings on Pollution Prevention and Minimizing the Creation of Pollutants

57The EBR places significant importance on pollution prevention and the minimization of the creation of pollutants. This is highlighted in the purposes of the EBR, which are elaborated in s. 2(2). They include:

The prevention, reduction and elimination of the use, generation and release of pollutants that are an unreasonable threat to the integrity of the environment.

58In applying the purposes of the EBR, the MECP’s SEV states that:

The Ministry’s environmental protection strategy will place priority on preventing pollution and minimizing the creation of pollutants that can adversely affect the environment.

59The preamble and purposes of the EBR state that the people of Ontario have a right to a healthful environment. To apply the public’s right to a healthful environment, prioritization of the prevention of pollution and minimization of the creation of pollutants are important tools. To be effective, these strategies require action at an early stage to prevent harm.

60In the present case, based on the evidence before it, the Tribunal finds that the Director reviewed the Approval Holder’s application and supporting materials and prioritized the prevention of pollution and the minimization of the creation of pollutants when making his decision. The Director reviewed and assessed a comprehensive set of studies prepared by the Approval Holder, including:

a. a carbon dioxide emissions intensity report indicating that the carbon dioxide emission intensity of the proposed use of alternative low carbon fuels is less than the carbon dioxide intensity if conventional fuels were used;

b. an emission summary dispersion modelling report demonstrating that the Facility’s emissions would meet the applicable provincial air standards;

c. an air quality and cumulative effects assessment report demonstrating that the proposed ECA Amendment would not result in significant cumulative air quality impacts;

d. reports on the outcomes of the Approval Holder’s alternative fuel demonstration study; and

e. a public consultation report setting out public comments and discussions regarding the proposed ECA Amendment.

61The Approval Holder conducted a demonstration study to determine in-stack emission measurements associated with the proposed expanded use of alternative low carbon fuels, which showed that the proposed fuels that will be almost completely combusted in the kiln. The Approval Holder produced evidence that the overall chemical composition of the proposed alternative low carbon fuels is the same as the alternative low carbon fuels that were tested and that testing is not needed for fuels from every alternative low carbon fuel provider or for each possible combination or blend of alternative low carbon fuels used. The Facility is subject to the same emission limits as it was under the 2015 ECA, except regarding opacity monitoring, which is replaced with continuous particulate matter monitoring requirements. The proposed ECA Amendment also requires continuous monitoring in the exhaust gas stream from the cement kiln stack for nitrogen oxides, sulphur dioxide, and total particulate matter.

62To be effective, preventive actions must be based on the use of the best available science available. This is emphasized in s. 4 of the MECP’s SEV, which states:

In making decisions, the Ministry will use the best science available. It will support scientific research, the development and application of technologies, processes and services.

The Applicants have raised important concerns regarding the presence of dioxins and furans and other contaminants in the area, the need for comprehensive monitoring, and the evolving science related to various pollutants that will be emitted from the Facility; however, they failed to demonstrate that the Director did not consider these issues and consider and use the best available science. Based on the evidence before it, the Tribunal finds that the Director considered the baseline conditions, the types of expected emissions, and the available science for addressing those emissions. The Tribunal finds that the Director considered the processes used at the Facility and ensured that the proposed ECA Amendment prioritizes the prevention of pollution and minimization of the creation of pollutants based on regulatory standards using the best available science.

63In some cases, preventive action may require steps or standards that go beyond regulatory requirements. If the Director’s reliance on regulatory standards results in the failure to consider or apply relevant laws or policies, such as the SEVs, then the reasonableness of the decision may be put in question. The Applicants did not demonstrate such circumstances in the present case. The Tribunal finds that the Director’s decision addresses the prioritization of pollution prevention and minimization of the creation of pollutants. It finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

(b) Adaptive Management

64Bracken and Gasser submit that adaptive management requires addressing future environmental impacts by using flexible management strategies that can be adjusted as new information emerges and appropriate mitigation measures can be taken. They submit that adaptive management requires a robust monitoring programme so that adjustments to the proposed ECA Amendment’s conditions can be made when needed in response to changes in environmental conditions or impacts. Mr. Grant states that the combustion of waste is complex and can result in toxic and bio-accumulative air emissions, which can best be controlled through process monitoring and active air pollution control systems. Bracken and Gasser submit that given the variable air emissions that would be permitted under the proposed ECA Amendment, careful process and environmental monitoring and best available air pollution controls are needed. They submit that ambient air monitoring requirements would inform adaptive management practices and that in their absence, there is a risk that exceedances will be left undetected for prolonged periods. They submit that the proposed ECA Amendment only requires a relatively few number of parameters and contaminants to be monitored continuously. All other pollutants, including dioxins and furans, mercury, lead, cadmium, and arsenic, would only be monitored annually through annual stack tests providing only an incomplete snapshot of emissions.

65The Director submits that the conditions in the proposed ECA Amendment on testing and monitoring focus on adaptive management so that potential impacts are addressed. Mr. Agarwal states that specification and continuous monitoring and recording of kiln process conditions under the proposed ECA Amendment ensure continuous tracking of the kiln process parameters. He states that annual source testing for a range of contaminants will assist in verifying compliance with regulatory requirements. Regarding the Applicants’ concerns the proposed monitoring plan for addressing variability of alternative low carbon fuels material and uncertain impacts, Mr. Agarwal states that the process characteristics of the Facility’s kiln will result in the destruction of organic matter and pollutants and the monitoring requirements in the proposed ECA Amendment are based on the requirements in Regulation 419/05 and the MECP’s Guideline A-7. He states that the potential variability of the alternative low carbon fuel blends used was considered and conditions were inserted in the proposed ECA Amendment to reduce the potential for variability and to monitor the potential impacts of fuel blends.

66The Approval Holder submits that the proposed ECA Amendment requires ongoing assessment and monitoring to verify on an ongoing basis that there is no risk of environmental harm caused by the burning alternative low carbon fuels at the Facility. It submits that continuous emission monitoring, source testing, testing of received fuels, carbon dioxide emission intensity testing, maintenance of an up-to-date emissions summary and dispersion modelling report, notification to the MECP of problems, and consideration of public inputs will enable it and the MECP to continually evaluate and confirm compliance and to make changes, when needed.

Findings on Adaptive Management

67The MECP’s SEV states that:

Planning and management for environmental protection should strive for continuous improvement and effectiveness through adaptive management

Based on the evidence before it, the Tribunal finds that this requirement was considered and applied by the Director in making his decision. The proposed ECA Amendment requires continuous monitoring and recording of kiln process conditions to ensure continuous tracking of the kiln process parameters and it requires annual source testing for a range of contaminants. The proposed ECA Amendment includes monitoring, assessment, and reporting requirements that facilitate adaptive management. Based on the evidence before it, the Tribunal finds that the proposed ECA Amendment includes appropriate monitoring and control mechanisms to identify and report issues and make appropriate adjustments during the course of the Facility’s operations. The Tribunal finds that the Director took into consideration and applied the need to ensure the continuous improvement and effectiveness of the proposed ECA Amendment. The Tribunal finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

(c) Precautionary Principle

68Bracken and Gasser submit that the Director failed to properly take into account the precautionary principle when making his decision. They submit that Condition 7 of the proposed ECA Amendment permits the burning of a range of materials that were not assessed in the Approval Holder’s demonstration study and could result in untested fuel blends with unknown impacts. They submit that given these uncertainties, the types of permitted wastes and blends should be restricted. They submit that PVC and products that emit toxic pollutants when heated should be banned. They also submit that the Approval Holder did not provide the Director with sufficient information regarding the local airshed quality or baseline conditions and it was unreasonable for the Director to issue the proposed ECA Amendment given these information gaps. Moreover, they submit that for many of the contaminants that will be emitted, including PM 2.5 and nanoparticles, there are no applicable provincial regulations. They submit that even minute quantities of some persistent and bio-accumulative contaminants can result in harm. Dr. Connett states that analytical methods and polyfluoroalkyl substances (PFAS) standards are minimal with more needed and measurements focusing on principal organic hazardous constituent (POHC) destruction may miss the formation of products of incomplete combustion (PIC). He states that the project amounts to an “experiment”. He states that the methods of extracting polyfluoroalkyl substances (PFAS) from waste before incineration will “be a highly complicated learning experience with the health of the local community held hostage to the experiments involved”. Bracken and Gasser submit that the absence of regulations and air standards should not viewed as permission to burn alternative low carbon fuels, waive the need for comprehensive monitoring, or ignore the potential for environmental harm.

69The Director submits that he applied the precautionary principle when making his decision to issue the proposed ECA Amendment. He states that he considered the Approval Holder’s technical reports that showed that no adverse impacts are anticipated. He submits that the proposed ECA Amendment requires monitoring to ensure regulatory compliance. Mr. Agarwal states that the Approval Holder’s demonstration studies show that there would be no significant change in emissions by burning alternative low carbon fuels and the maximum ground level concentrations are well below the standards set out in Regulation 419/05 and the MECP’s Guideline A-7. He submits that the risk of environmental harm is very low.

70The Approval Holder submits that the demonstration study was completed in accordance with established engineering practices and represents a scientifically sound and conservative assessment of the Facility’s proposed air emissions. It submits that there is a high degree of control and certainty regarding the emissions that will be produced through the use of alternative low carbon fuels at the Facility. Regarding the emission of polyfluoroalkyl substances (PFAS) and products of incomplete combustion (PIC), it submits that the science is developing and there is no provincial regulatory standard or guidance on them. It submits that there is no risk of serious or irreversible harm.

Findings on the Precautionary Principle

71The aim of the precautionary principle is to anticipate and prevent environmental degradation. It requires that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation.

72The MECP’s SEV states that:

The Ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment.

73Bracken and Gasser argue that there is scientific uncertainty regarding burning of a range of alternative low carbon fuels, the impacts of fuel blending, the quality of the local airshed, and the impacts of emissions of a range of pollutants. The Director and the Approval Holder provided evidence that the combustion of alternative low carbon fuels will result in no significant changes in emissions and there is neither scientific uncertainty nor a risk of serious or irreversible harm.

74Although Bracken and Gasser have raised issues regarding scientific certainty in terms of emissions, means to reduce their impacts, and gaps in baseline information, the Tribunal finds that the Director considered and applied the precautionary principle and used a science-based approach when making his decision. The evidence before the Tribunal indicates that the Director considered extensive comprehensive scientific technical data and analyses and found that the proposed ECA Amendment will have no adverse environmental effects. Although questions regarding the state of the science and the adequacy or existence of provincial standards were raised, these were considered by the Director. The evidence before the Tribunal is that there is a high degree of control and certainty regarding the emissions that will be produced at the Facility and there is no risk of serious or irreversible harm. The Tribunal finds the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

(d) Cumulative Effects and the Ecosystem Approach

75Bracken and Gasser submit that the Director failed to consider cumulative impacts and apply the ecosystem approach when he made his decision to issue the proposed ECA Amendment. They submit that the proposed ECA Amendment permits the burning of a range of waste materials that were not analyzed or tested and that many of them could cause harmful emissions. They submit that the Approval Holder also did not assess how contaminants in the cement end-product can impact the environment as end-product degrades or is repurposed. They further submit that there is uncertainty regarding whether point source and fugitive emissions from the Facility may act in a synergistic manner with airborne contaminants from other local sources. Bracken and Gasser also argue that a human health risk assessment should have been prepared, but was not.

76Bracken and Gasser submit that the local airshed already has high levels of chemicals of potential concern. They submit that the Facility is located close to the Durham York Energy Centre, the Courtice Water Pollution Control Plant, the Darlington Nuclear Generating Station, and Highway 401. They submit that these air pollution sources are not adequately monitored or differentiated. Bracken and Gasser state that information on the air pollution impacts of the planned widening of Highway 401 and the extension of Highway 407 have not been studied. They state that the monitoring at the Durham York Energy Center demonstrates high existing levels of ozone, PM 2.5, nitrogen dioxide, benzo(a)pyrene (BaP), and dioxins and furans. They submit that given the proximity of the Facility to the Durham York Energy Center, there may be significant local cumulative impacts. Moreover, they state that the Durham York Energy Center plans to expand its operations. They submit that emissions from the Facility may act in an additive or synergistic manner with airborne contaminants from other local sources. They submit that the local medical community has expressed concerns regarding air emissions from the Durham York Energy Center.

77Bracken and Gasser submit that the Approval Holder’s cumulative effects assessment report is not adequate. They submit the monitoring that was undertaken was limited in scope and identified exceedances were not adequately addressed. Mr. Grant states that the existing ambient air monitoring network in the area has measured elevated levels of dioxins and furans and the cumulative nature of multiple local sources of these emissions could result in adverse effects. Dr. Connett states that the proposed air emissions standards do not adequately address the total load of pollutants that will be emitted or how they will contribute to the total load impacting the local area.

78The Director submits that the Approval Holder’s cumulative effects assessment report found that there would be no significant cumulative air quality impacts or significant changes in local air quality due to the proposed use of alternative low carbon fuels. Mr. Agarwal states that the study considered emissions at the rate of 400 tonnes of waste per day along with the proposed expansion of Durham York energy Center’s capacity from 140,000 to 160,000 tonnes per year. The Director states that the ecosystem approach was achieved by the Approval Holder’s demonstration of compliance with the air discharge requirements in Regulation 419/05, which protects communities from adverse effects from local sources of air emissions. Mr. Agarwal states that the province’s air standards are based on the best scientific information available and set at levels that safeguard human health and the natural environment. He states that he considered health, odour, vegetation, soiling, visibility and corrosion effects. He states that a human health risk assessment is not required under s. 9 of the EPA or Regulation 79/15.

79The Approval Holder submits that there will be no significant change in local air quality resulting from the expanded use of alternative low carbon fuels at the Facility. It submits that its cumulative effects assessment report shows that the local air quality would be below the MECP’s ambient air quality criteria at all sensitive receptors except for benzene (annual) and benzo[a]pyrene (BaP) (24 hour and annual). It submits that for these two contaminants, the background levels locally are well above their respective ambient air quality criteria and the Facility’s contribution to them is well below those criteria. Regarding PM 2.5, the Approval Holder submits that there would be no significant change in concentrations in the local ambient air when alternative low carbon fuels are used. Ms. Mills states that the Approval Holder’s cumulative effects assessment report assesses the proposed expansion in the use of alternative low carbon fuels with respect to PM 2.5, fugitive dust sources, and cumulative impacts from other sources in the area. She states that the report assessed over 120 potential air contaminants of concern including all PM 2.5, dioxins and furans, sulphur dioxide and nitrogen oxides. She states that the report found that there will be no significant change in local air quality.

Findings on Cumulative Effects and the Ecosystem Approach

80The MECP’s SEV states that:

The Ministry adopts an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them.

81The principle of the ecosystem approach involves the integrated management of air, land, water and living resources to promote conservation and sustainable use in an equitable way. It involves the consideration of the processes, functions and interactions among components of the environment. It considers the unique and fundamental characteristics of ecosystems and the need to prevent ecological harm caused by the total load of human activity from any and all sources. Decisions are made by determining the effects on the system as a whole including each of its constituent parts, rather than focusing on the constituent parts in isolation from one another. Under the ecosystem approach, cumulative and other impacts must be addressed. In Lafarge, at para. 60, the Divisional Court stated:

Under an ecosystem approach, decisions are made by measuring effects on the system rather than on their constituent parts in isolation from each other. An ecosystem approach is inherently effects-based: what matters under an ecosystem approach is the overall consequence of human activity, rather than an assessment of particular human actions isolated from the effects of other actions affecting the same ecosystem. As the MOE SEV stipulates, one of the key features of an ecosystem approach is measurement of cumulative effects.

82None of the Parties produced evidence or submissions that addressed how the proposed ECA Amendment would affect the interactions among air, land, water and living resources. They focused on cumulative effects, which, as noted above, is a component of the ecosystem approach.

83In this regard, the MECP’s SEV elaborates that:

The Ministry considers the cumulative effects on the environment; the interdependence of air, land, water and living organisms; and the relationships among the environment, the economy and society.

Although the Applicants raised concerns, they provided no compelling evidence to contest the findings in the Approval Holder’s cumulative effects assessment report that there would be no significant impacts on local air quality caused by the emissions permitted under the proposed ECA Amendment. Bracken and Gasser submit that many of the proposed fuel materials could produce emissions and cause impacts that were not assessed and the emissions may act in an additive or synergistic manner with airborne contaminants from other local sources. They also express concerns regarding the impacts of air emissions on the community and human health and they provided comments during the public consultation period regarding the types and number of emissions from facilities in the area. The evidence before the Tribunal is that the Director considered these emissions, their sources, and their cumulative effects when making his decision. The Tribunal finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

2. Public Participation

84Bracken and Gasser submit that the Director failed to require the Approval Holder to provide its website details and supporting documentation on the Environmental Registry. They submit that the absence of this information likely deterred the public from submitting comments. They submit the 45-day period for providing comments should have been extended, the Director should have fully responded to all public comments, and more public consultation meetings should have been held. They submit that revisions to the Approval Holder’s emissions summary and dispersion modelling report were not made readily available to the public. They also submit that the MECP’s requirement that the public make requests under the Freedom of Information and Privacy Protection Act in order to obtain information is not in the spirit of public participation envisioned in the EBR.

85The Director submits that the Approval Holder’s application was posted on the Environmental Registry for public commenting for 45 days and that all public comments were considered. He submits that two public meetings were held and Indigenous consultations were conducted by the Approval Holder.

86The Approval Holder submits that it held public consultations and that all public comments were considered. It submits the fact that the Director did not agree with all of the public comments does not mean that they were not considered.

Findings on Public Participation

87Section 3(a) of the EBR states that in order to fulfil the purposes of the Act, the Act provides:

The means by which Ontarians may participate in the making of environmentally significant decisions by the Government of Ontario;

88The MECP’s SEV states that:

The Ministry will encourage increased transparency, timely reporting and enhanced ongoing engagement with the public as part of environmental decision making.

89Section 6 of the MECP’s SEV states, in part:

The Ministry … believes that public consultation is vital to sound environmental decision-making. The Ministry will provide opportunities for an open and consultative process when making decisions that might significantly affect the environment.

90Bracken and Gasser raise important concerns regarding access to documentation and engagement in the decision-making process. However, with the posting of information on the Environmental Registry, the holding of public meetings, and the consideration of public comments in the decision-making process, the Tribunal finds that the Director facilitated public participation and ongoing engagement with the public and provided opportunities for an open and consultative process. The Tribunal finds that the Director considered and applied the public participation requirements in the EBR and the MECP’s SEV. It finds that the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

3. [Ontario Regulation 419/05](https://www.canlii.org/en/on/laws/regu/o-reg-419-05/latest/o-reg-419-05.html)

91Bracken and Gasser submit that an important criterion which the Director was required to consider when making his decision to issue the proposed ECA Amendment was compliance with Regulation 419/05. Air standards in the Regulation are based on the maximum point of impingement concentration of a contaminant. If compliance is achieved at the location of maximum concentration, it is assumed that it also will be achieved at all other locations. Where there are exceedances, potential receptors and the magnitude and the frequency of the exceedance must be identified. Bracken and Gasser submit that exceedances in locations where the public may be exposed must be assessed and addressed. They submit that the Director focused his assessment on atmospheric dispersion modelling and did not assess and require implementation of best available air pollution controls as required by Regulation 419/05 where exceedances or adverse effects may occur based on atmospheric dispersion modelling or measurements. Mr. Grant states that Regulation 419/05 includes requirements for the assessment and implementation of best available air pollution controls when exceedances of a standard may occur. He states that in the present case, there is evidence of a local ambient air exceedance of dioxin and furan emissions from the Durham York Energy Center and as there is the potential for cumulative impacts and given the bio-accumulative nature of these contaminants, a reasonable application of the Regulation should have triggered a jurisdictional review to ensure best available air pollution control.

92The Director submits that Regulation 419/05 is intended to protect communities against adverse effects from local sources of air emissions. He submits that compliance can be achieved through: (a) compliance with the Regulation’s air standards and guidelines; (b) compliance with site-specific standards; or (c) registration under a technical standard. He states that if a facility demonstrates compliance with the Regulation’s air standards, no further action is required. Mr. Agarwal states that pollution reduction considerations become important under the site-specific standards approach where a polluter is unable to comply with the standards in the Regulation. He states that under this approach, jurisdictional reviews and action plans for reduction in air impacts may be required. He states that the operations at the Facility under the proposed ECA Amendment comply with the Regulation’s air standards and guidelines, and technology benchmarking and a jurisdictional review is not needed. He states that the proposed ECA Amendment’s conditions on alternative low carbon fuel management, performance limits and monitoring, and record keeping and reporting to the public will ensure ongoing compliance with the MECP’s legislation, regulations and policies. The Director submits that there has not been an ambient air quality exceedance caused by the Facility and that the proposed expanded use of alternative low carbon fuels at the Facility would meet the Regulation’s air quality standards and guidelines.

93The Approval Holder submits that the requirements applicable to establishing a site-specific standard, including a jurisdictional review, do not apply to the proposed operations at the Facility. It also submits that the ambient air quality exceedance identified by Bracken and Gasser was not caused by the Facility.

Findings on Ontario Regulation 419/05

94Bracken and Gasser submit that there has been an ambient air exceedance of dioxin and furan emissions in the community and, given the potential for cumulative impacts and the bio-accumulative nature of dioxins and furans, a jurisdictional review to ensure best available air pollution controls is needed. The Director and the Approval Holder submit that the ambient air quality exceedance was not caused by the Facility and that the proposed expanded use of alternative low carbon fuels at the Facility would meet the Regulation’s air quality standards and guidelines and does not require site-specific standards. As such, they submit that a jurisdictional review is not necessary.

95The Tribunal finds that given the evidence before it, the proposed expanded use of alternative low carbon fuels at the Facility will meet the Regulation’s air quality standards and that a jurisdictional review is not required under the Regulation. Based on the evidence before it, the Tribunal finds that the Director considered the possibility of exceedances and that his decision was not unreasonable in this regard. In this regard, the Tribunal finds that the Director’s decision is consistent with the purpose of the EPA to conserve and protect the natural environment. The Tribunal finds the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

4. MECP Guidelines A-7 and A-12

96Bracken and Gasser submit that MECP Guideline A-7 sets out guidance on pollution control systems and maximum allowable in-stack contaminant emission levels from municipal waste thermal treatment facilities and sets out recommendations for design and operating parameters for them. They submit that Guideline A-7 sets out limits developed using maximum achievable control technology for dioxin and furan, cadmium, lead, mercury, particulate matter, and acid gas emissions and that compliance is assessed based on emissions sampling at the stack under maximum operating feed rates. They submit that based on the proposed use of alternative low carbon fuels and the range of materials to be burned, the proposed ECA Amendment should have required the installation of a continuous emission monitoring system for all relevant parameters where the technology exists. They also submit that although the proposed ECA Amendment allows for a wide variability in the fuel blends that can be burned, it only requires an annual source test of one blend. They submit that more comprehensive monitoring is needed. Bracken and Gasser submit that the Director also failed to consider the MECP’s Guideline A-12 on the implementation of air standards. They submit that Guideline A-12 requires the MECP regulate air contaminants in order to protect people who live close to air pollution sources and ensure environmental monitoring of facilities where municipal waste is used as an alternative fuel.

97The Director submits that the Approval Holder has demonstrated compliance with the Guideline A-7 and A-12 requirements. He submits that the proposed ECA Amendment includes conditions to ensure compliance, including limits for dioxins and furans, cadmium, mercury and hydrogen chloride emissions.

98The Approval Holder submits that the proposed ECA Amendment includes the in-stack emission limits required under Guideline A-7 for cement kilns. It submits that Guideline A-7 sets out specific parameters that the Director must consider for continuous monitoring and other parameters that the Director may consider for continuous or long-term monitoring. It submits that the final selection of required parameters is determined by the Director on a case-by-case basis. It states that, in the present case, the Director required the Approval Holder to continuously monitor emissions for specific parameters as mandated in the Guideline.

99The Approval Holder submits that Guideline A-12 describes the province’s framework for managing risks under Regulation 419/05, including updates to air standards and air dispersion models and processes to deal with exceedances of air standards by facilities. It submits that the Facility complies with all prescribed air standards under Regulation 419/05 using the prescribed air dispersion model as required under Guideline A-12.

Findings on MECP Guidelines A-7 and A-12

100The MECP’s Guideline A-7 provides guidance on the installation of air pollution control systems, describes air emission limits for certain substances, and provides guidance with respect to emissions control, monitoring and performance testing. Guideline A-12 sets out updates to air standards and air dispersion models and processes to deal with exceedances of air standards by facilities.

101Based on the evidence before it, the Tribunal finds that the Director considered and incorporated the requirements in Guidelines A-7 and A-12 in the proposed ECA Amendment. The Tribunal finds the Applicants have failed to make a prima facie case that, having regard to the applicable law and policies, there is good reason to believe that the Director’s decision-making process, considerations, or the final decision appear to be unreasonable in this regard.

Conclusion

102Based on the evidence and submissions before it, the Tribunal finds the Applicants have failed to demonstrate on a prima facie basis that it appears there is good reason to believe that no reasonable person, having regard to the applicable law and policies, could have made the decision to approve the proposed ECA Amendment.

B. Significant Environmental Harm Test

103Under s. 41 of the EBR, an applicant must satisfy both the reasonableness and the significant harm tests for leave to appeal to be granted. Given the Tribunal’s findings on the reasonableness test, the Tribunal finds that it is not necessary to apply the significant harm test under s. 41(b) of the EBR.

DECISION

104The Tribunal orders that the applications for leave to appeal are dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Ontario Land Tribunal

Website: www.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.