Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 28, 2022

CASE NO(S).: OLT-22-003066

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

Applicant: Niagara Water Protection Alliance

Instrument Holder: 1712028 Ontario Inc.

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

Subject of leave to appeal: Decision to issue a Permit to Take Water under section 34.1 of the Ontario Water Resources Act for pit and quarry dewatering purposes

Reference No.: 0184-CB3RN8

Property Address/Description: 1937 Ramey Road

Municipality: Port Colborne

Upper Tier: Regional Municipality of Niagara

OLT Case No.: 22-003066

OLT Case Name: Niagara Water Protection Alliance v. Ontario (Environment, Conservation and Parks)

Heard: April 25, 2022 by written hearing

Parties

Counsel*/Representative

Niagara Water Protection Alliance

G. Gaverluk

Director, Ministry of the Environment, Conservation and Parks

D. Meuleman* S. Kromkamp*

Port Colborne Quarries Inc.

D. Germain*

1The Niagara Water Protection Alliance (“Requestor”) seeks leave to appeal a Permit To Take Water (“PTTW” or “Permit”) issued by the Director, Ministry of Environment, Conservation and Parks (“MECP” or “Ministry”) to Port Colborne Quarries Inc. (“PCQ” or “Quarry”).

2For the reasons set out below, the Tribunal will not grant leave to appeal, given the Requestor’s failure to satisfy the legislative tests for leave.

QUARRY OPERATION

3PCQ has operated a bedrock quarry at 1937 Ramey Road (“site”), Port Colborne, Ontario since the 1970s. The quarry now involves three similarly sized pits separated by municipal roads, and known as Pits 1, 2 and 3 totalling some 205 hectares.

4Bedrock is currently extracted from Pit 3 and transported through Pit 2 for processing in Pit 1 before its removal from the site. On-site extraction, transportation, and processing occurs below the water table of the area aquifer and thus relies on four pumping locations for dewatering: Sump 1 in Pit 1, Sump 2 in Pit 2, and Sumps 3 and 4 in Pit 3. Sump 1 discharges to a storm sewer leading to the Welland Canal to the west, while the other three Sumps discharge to the Wignell Drain to the south.

5The PTTW at issue allows a renewal for 10 years for the continued water-taking by the four Sumps, subject to the same terms and conditions as the 2011 PTTW that it replaces.

LEGISLATIVE CONTEXT

6The Ministry and PCQ set out the legislative context in their responding submissions, summarized as follows.

7The Ontario Water Resources Act (“OWRA”) requires a PTTW where dewatering exceeds 50,000 litres per day (“l/d”). The existing and proposed PTTW for this large quarry operation permit 8,640,000 l/d, with exceptions allowed for certain seasonal or weather conditions, and subject to monitoring and reporting.

8The opportunity to seek leave to appeal a PTTW arises from s. 38(1) of the Environmental Bill of Rights (“EBR”) provided that the person seeking leave has an interest in the decision. The EBR s. 38(3) confirms that a person who has commented on a proposal has an interest in the decision. Given the Requestor’s filing of comments on this PTTW during the consultation period, the Ministry and PCQ agree that the Requestor has standing to seek leave to appeal.

9The tests for leave to appeal are set out in s. 41 of the EBR:

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.

10The Divisional Court, in Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) [2008], CanLII 30290 O.J. No. 2460 (“Lafarge”), found s. 41 of the EBR to contain “a presumption against granting leave”:

40 The wording of this provision is unusual in a number of respects. Most notably, it begins with a negative, i.e. the express prohibition “leave to appeal a decision shall not be granted …” Thus, there is a presumption against granting leave. Moreover, the decision must be so egregiously in error that there is good reason to believe that “no reasonable person … could have made the decision.” Appeals by third parties are, therefore, intended to be an exceptional remedy. (emphasis added)

11The Lafarge Decision also noted in paragraph 45:

… At the leave to appeal stage, the appropriate standard of proof is an evidentiary one – i.e. leading sufficient evidence to establish a prima facie case …”

12The Tribunal found in Keep Napanee Great v. Ontario (Environment, Conservation and Parks), 2021 CarswellOnt 13444, at paragraph 67:

… When faced with opposing submissions, the Tribunal prefers specific submissions over general submissions, expert evidence/reports to individual assertions and sworn affidavit evidence to unsworn statements. …

13The Tribunal here captures the above legislative tests and rulings as being that, to grant leave to appeal, the PTTW must be found to likely be unreasonable and to likely result in environmental harm, as supported by evidence advanced by the Requestor.

POSITIONS and FINDINGS

14The Requestor posits that the continued pumping of large volumes of groundwater is unnecessary because the processing operations could be moved to Pit 3, thereby allowing Pits 1 and 2 to be decommissioned and fill with groundwater requiring little or no further pumping. It submits that less energy would be consumed when transporting materials within the site, greenhouse gas emissions would equally be reduced, potential pollutants from dewatering would decline, and potential further drawdown of this vulnerable aquifer would be reduced or eliminated.

15The Requestor argues that five years, rather than 10 years, represents a suitable end date for this PTTW, providing ample time for the relocation of operations and the consideration of an easterly extension of the Quarry currently under review. The Requestor asks that a cumulative impact assessment on groundwater be required, that Sumps 1, 2 and 3 not be renewed after five years, and that continued operation of Sump 4 be limited to a much lower volume into the Wignell Drain akin to water contributions from agricultural land.

16The Tribunal finds that the Requestor raises environmental issues and suggests methods to address those issues, but that the issues themselves either fail to represent reasonable and evidence-based matters pertaining to the PTTW, or relate to matters not before the Tribunal in this case. The Tribunal prefers the affidavit evidence of the Ministry’s Director (as supported by experienced Ministry staff) and PCQ’s hydrogeologist over the relatively unsubstantiated submissions of the Requestor, for each of the issues raised and summarized below.

Consultation

17While not an issue related to the legislative tests, the Tribunal does not accept the Requestor’s allegation of not being heard through the Ministry’s circulation of the application. The Ministry’s PTTW Notice of Decision on the Environmental Registry of Ontario included reference to the Requestor’s submissions.

10 Year Term

18The Ministry explains that PTTWs typically apply for 10 years, with the caveat that ongoing monitoring is required and a permit may be revoked if necessary. It contends that the Requestor’s suggestion to preclude any renewal after 5 years for certain Sumps would fetter the discretion of decision-makers at that time.

19The Tribunal accepts the Requestor’s inference that an expansion of the Quarry through the Aggregates Resources Act (“ARA”) process may result in changes to the operation and its resulting water-taking requirements. However, the Tribunal finds that such result cannot be predicted and need not be addressed by this PTTW. A PTTW may be altered as necessary throughout its time in effect, as may result from unanticipated events or changes in operation. This PTTW is identical to the permit in effect for the Quarry over the previous 10 years, with which the PCQ complied and its ongoing monitoring supports the expectation that negative groundwater effects are unlikely.

20To the Requestor’s questioning of the expiration of the Quarry’s previous PTTW prior to this PTTW being granted, the Tribunal accepts the Ministry’s clarification that under s. 34.1(6) of the OWRA, the previous PTTW remains in effect beyond its expiry date until the new PTTW application is decided.

Renewal Category

21The Requestor questions whether the magnitude of this Quarry and its necessary water taking exceed the level of risk appropriate for a Category 1 review under the Ministry’s PTTW Manual. The Tribunal accepts the Ministry’s position that this application satisfied the Category 1 criterion of being a low risk for negative environmental effects given the Quarry’s past compliance, no adverse impacts identified, and no change proposed to the quantity of water taking.

Aquifer

22The Requestor correctly notes that the Quarry involves a “Highly Vulnerable Aquifer” as identified by the Niagara Peninsula Source Protection Plan under the Clean Water Act and thus warrants complete and careful attention through this PTTW.

23The Ministry responds that vulnerability relates to potential undesirable inputs to the aquifer such as chemicals, nutrients or pathogens, whereas a PTTW involves the output of the aquifer. Here, the well monitoring identifies a relatively stable groundwater elevation around the Quarry and does not indicate an outward expansion of the drawdown area of the aquifer. This apparent long-term balance will continue to be monitored and may be addressed if substantial changes warrant. The Ministry reiterates that any potential expansion of the Quarry and its effect on the aquifer is a matter for the ARA application, not a PTTW.

24The Tribunal applauds the Requestor’s concern for aquifer protection, but finds that the suggested remedies lie outside this PTTW. The Requestor has failed to provide evidence that past or current water takings from this Quarry will harm the environment. The substantial operational changes recommended by the Requestor may well be environmentally beneficial but are matters beyond the purview of a PTTW that accords with a current ARA license.

25An aquifer, as a key component in the water cycle, has inputs and outputs. Importantly, this PTTW is an output, warranting its requirements for continued monitoring of the aquifer.

Water Discharge

26Also related to outputs, the Requestor raises issues with the potential contamination of receiving waters, being the Welland Canal and the Wignell Drain. Again, the Tribunal must emphasize that a PTTW is a narrowly focussed approval process: one that focusses on the “taking” of water from the aquifer, not one that reviews the “giving” of water to downstream recipients. Discharge requirements invoke the Drainage Act for such matters as water quality and financial assessments for maintenance or improvements. The Quarry is responsible for such matters under the relevant processes and permits, but such are not the subject of this PTTW.

Quarry Operations

27The Requestor’s recommended operational improvements for the Quarry, as reviewed earlier, are matters for a license under the ARA and any associated legal agreements the Quarry may have with relevant Parties, such as the municipality.

Environmental Values

28The Requestor asserts that the PTTW fails to consider the Ministry’s Statement of Environmental Values due to the effects on aquifer drawdown and downstream water quality.

29The Quarry responds to the main items cited. For cumulative impacts, the maximum daily water taking volume noted by the Requestor is corrected. It is not the sum of the individual Sumps’ maximums, but a lower daily total by approximately 50%. Without providing hydrogeological evidence, the Requestor suggests the Quarry will cause the aquifer drawdown area to grow for many years, while the monitoring records indicate the drawdown has remained stable over time. The Quarry submits that the Requestor mis-applies the concept of cumulative impacts by focussing only on the Quarry and not considering all human activities within the watershed.

30The Quarry provides similar responses to the issue of sustainable development, and reiterates that the Quarry’s potential expansion by application under the ARA is not a relevant consideration for a PTTW for the existing operation.

31To the issue of downstream water quality in relation to an ecosystem approach, the Quarry clarifies that effluent quality is governed by an ECA, not the PTTW; the effluent concern for fish habitat is not relevant in this proceeding. Nevertheless, the Quarry notes that its reports demonstrate a benefit to fish habitat resulting from the improved water quantity and quality in the Wignell Drain as compared to upstream.

32The Tribunal finds that matters of environmental values raised by the Requestor do not result in a conclusion that the PTTW is unreasonable or likely to cause significant environmental harm.

Summary

33The Tribunal finds in favour of the Ministry and the Quarry: the Requestor has failed to demonstrate that the PTTW is likely unreasonable and likely to result in significant harm to the environment. Arising from the Lafarge Decision, the “exceptional remedy” of an appeal by a third party has not been justified by the Requestor, in part for failing to satisfy the evidentiary standard of proof. While the Requestor raises potential environmental matters and plausible solutions to address them, they either fail to apply to a PTTW or are not supported by factual evidence.

ORDER

34The Tribunal Orders that leave to appeal is denied.

“S. Tousaw”

S. tousaw

MEMBER