Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2022
CASE NO(S).: OLT-21-001880 (Formerly 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
OLT Case No.: OLT-21-001880
Legacy Case No.: 20-033
OLT Case Name: Darling International Canada Inc. v. Ontario (Environment, Conservation and Parks)
Heard: April 4, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Darling International Canada Inc. | Marc McAree, Anand Srivastava, and Lauren Wortsman |
| Director, Ministry of the Environment, Conservation and Parks | Nadine Harris and Ashley Qian (student-at-law) |
Memorandum of oral decision DELIVERED BY HUGH S. WILKINS AND J. CAMPBELL ON APRIL 4, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision arises from a settlement hearing for an appeal brought by Darling International Canada Inc. (“Appellant”) of specific conditions in Amended Environmental Compliance Approval No. 5238-BSVRHU (“Amended ECA”) issued by the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”) on October 2, 2020. The Amended ECA relates to the Appellant’s Rothsay Moorefield Plant (“Plant”), in the Township of Mapleton, which is an animal by-product collection, processing and feed ingredient manufacturing plant.
2In February 2021, the Parties reached a settlement on four of the six conditions under appeal. The Tribunal held a settlement hearing on February 19, 2021 and approved proposed changes to the Amended ECA regarding those conditions. The two remaining conditions under appeal are:
- Condition 1.1 - requiring the Appellant to meet an Odour Performance Limit of 1 odour unit by a set date; and
- Condition 5.8.e - requiring the Appellant to report in the Appellant’s annual source testing reports the quantification of the odour removal efficiencies of the inorganic and organic media in the Plant’s biological oxidation system (“biofilter”).
3On March 14, 2022, the Parties informed the Tribunal that they had reached a proposed settlement of the two remaining conditions under appeal. The Tribunal held a further settlement hearing on April 4, 2022 to address the proposed settlement.
ISSUES
4The issues to be addressed are whether, based on the proposed settlement, all statutory requirements and the public interest are satisfied, as required under Rule 12.1 of the Tribunal’s Rules of Practice and Practice Directions (“Rules”), and whether the Tribunal should direct the Director to amend the Amended ECA and dismiss the proceeding.
EVIDENCE AND SUBMISSIONS
5In support of the proposed settlement, the Director filed an affidavit affirmed by Rudolph Wan, dated March 30, 2022. Mr. Wan is the Director who issued the Amended ECA. He also attended the settlement hearing and provided evidence. The Appellant filed an affidavit sworn by Duff Moore, dated April 1, 2022. Mr. Moore is employed by the Appellant as its Director of Optimization and Shared Services.
6In his affidavit, Mr. Wan stated that the proposed amendments involve replacing the Odour Performance Limit in the Amended ECA with an Odour Objective. The Odour Objective would be 1 odour unit. This change from a “limit” to a non-mandatory “objective” through the proposed settlement require the Appellant to revise its Odour Management Plan to provide for:
- the broadening of the range of operations and conditions that are subject to the Odour Management Plan’s requirements, including transient operations and upsets;
- an Odour Technology Benchmarking analysis to be conducted to identify options for continuous improvement in odour performance and determine the minimum difference between predicted odours at sensitive receptors and the Odour Objective under the Amended ECA;
- analyses of odour complaints to identify new sources of odour or currently identified sources of odour that may require improved control and the updating of the Odour Management Plan;
- the modelling of fugitive odour emissions associated with animal by-product trucks temporarily stored outside the Plant to determine a threshold for the maximum number of trucks that can be stored there without causing significant odour impacts at sensitive receptors; and,
- the development and implementation of contingency actions if the above-noted threshold is exceeded as well as requirements for the indoor storage of trucks and the tarping of trucks to reduce odours.
7In his affidavit, Mr. Wan stated that the proposed changes also remove the requirement for the Appellant to quantify and report in its source testing reports the odour removal efficiencies of inorganic and organic media in the Plant’s biofilter. He stated that biofilter performance instead would be assessed by examining odour emissions from the biofilter stack, which would continue to be reported in the Appellant’s annual source test reports.
8Mr. Wan stated in his affidavit that the proposed changes reflect updated information on odour performance at the Plant from source testing, a review by the MECP of reported odour complaints, and the establishment of a Public Liaison Committee (comprised of local members of the public, the Appellant and the MECP). He said the odour objective would be used as a target and as a benchmark against which the Plant’s odour management would be tracked. He stated that the proposed changes would provide a more fulsome assessment of odour performance with a broader range of operating conditions and sources, better information on the causes of odour complaints, and continuous improvement in the Plant’s odour performance towards the 1 odour unit objective.
9At the settlement hearing, Mr. Wan stated that possible adverse effects of odour emissions from the Plant had been taken into account. He noted that the Odour Management Plan is a “living document” and said the proposed changes provide for monitoring and improvements through the ongoing updating and implementation of the Odour Management Plan. Further, any enforcement actions, including those associated with the Odour Objective, would be based upon non-compliance with the Odour Management Plan. The Director submitted that the objective of the Amended ECA is to minimize the adverse effects of odour emitted from the Plant on the surrounding community and the proposed amendment would facilitate the achievement of that objective. The Director submitted that the Amended ECA with the proposed changes is consistent with the purpose of the Environmental Protection Act (“EPA”) as it provides up-to-date information regarding the Plant, requires a comprehensive Odour Management Plan, and allows for continuous improvements. The Director submitted that it is consistent with the requirements in the EPA, including those in s. 14 (on the prohibition of discharges of contaminants) and s. 20.7 (on the powers and duties of the Director).
10The Appellant supported the Director’s submissions.
ANALYSIS AND FINDINGS
11Rule 12.1 of the Tribunal’s Rules sets out the procedure to be followed where there is a proposed settlement before a hearing event. Rule 12.1 states:
12.1 The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.
12Under this Rule, if all statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving a proposed settlement, with any necessary amendments. On considering the relevant statutory provisions and the public interest, the Tribunal has the discretion to confirm, alter or revoke the Director’s Order under s. 145.2(1) of the EPA and the discretion to either continue with or dismiss the proceedings.
13Section 3 of the EPA sets out the Act’s purpose, which is to provide for the protection and conservation of the natural environment, and s. 14 prohibits the discharge of contaminants, including odour. The Tribunal finds that, based on the evidence before it, the Amended ECA with the proposed agreed upon changes satisfies the statutory requirements in the EPA and is in the public interest. The proposed changes provide for an up-to-date and comprehensive instrument that will ensure monitoring of odour emissions and continual improvement of odour mitigation efforts at the Plant while, through the Community Liaison Committee and reporting to the MECP, oversight is provided. The Tribunal finds that these measures will ensure environmental protection and consistency with the EPA’s purpose and provisions.
OTHER ISSUES
14The Tribunal notes that on March 7, 2022, it heard a motion brought by the Appellant for disclosure. Given the settlement of the appeal, the disclosure issue is moot and the motion is dismissed.
ORDER
15The Tribunal orders that the appeal is allowed, in part, and directs the Director to amend the Amended ECA as set out in Attachment 1 to this Order and Decision. It orders that the proceeding is dismissed.
16The Tribunal orders that the motion brought by the Appellant for disclosure on March 7, 2022 is dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS MEMBER
“J. Campbell”
J. CAMPBELL 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
OLT-21-001880 – Attachment 1