Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 15, 2022
CASE NO(S).:
OLT-22-003800
PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights Act, R.S.O. 1990, c. P.13, as amended
Applicants:
Darren and Teresa Johnston
Instrument Holder:
David Elstone carrying on business as Haliburton Septic Pumping
Respondent:
Director, Ministry of the Environment, Conservation and Parks
Subject of leave to appeal:
Decision to issue an Environmental Compliance Approval under section 20.2 of Part II.1 of the Environmental Protection Act for a hauled sewage disposal site
Reference No.:
19-PET-72453
Property Address:
1197 Barry Line Road, Lot 4, Concession 6
Municipality:
Township of Dysart et. al.
Upper Tier:
Haliburton County
OLT Case No.:
OLT-22-003800
OLT Case Name:
Johnston v. Ontario (Environment, Conservation and Parks)
Heard:
In writing
APPEARANCES:
Parties
Counsel*/Representative
Darren and Teresa Johnston
Self-represented
Director, Ministry of the Environment, Conservation and Parks
Jon Bradbury*
David Elstone, carrying on Business as Haliburton Septic Pumping
David Elstone
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
1David Elstone, carrying on business as Haliburton Septic Pumping (“Approval Holder”), is the leaseholder of the lands located at 1167 Barry Line Road (“subject property”), in the Township of Dysart, Dudley, Harcourt, Guilford, Harburn, Bruton, Havelock, Eyre and Clyde, in the County of Haliburton.
2On November 21, 2019, the Approval Holder applied for an environmental compliance approval for the establishment, use, and operation of a hauled sewage disposal site on the subject property.
3On April 5, 2022, David Bradley, Director (“Director”), Ministry of Environment, Conservation, and Parks (“Ministry”), issued Environmental Compliance Approval No. 19-PET-72453 (“ECA”) permitting the Approval Holder’s proposed activities on the subject property.
4On May 2, 2022, Darren and Teresa Johnston (“Applicants”), who reside and operate a business on lands abutting the subject property, filed an application seeking leave to appeal the Director’s decision to issue the ECA under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”).
Materials before the Tribunal
5The materials that the Applicants filed with the Tribunal include their application for leave to appeal, dated May 2, 2022; a letter addressed to the Ministry’s counsel, dated May 24, 2022; and an undated letter addressed to Keith Jamieson, who was an Agricultural Environmental Officer with the Ministry with responsibility for the file.
6The Director responded with evidence and submissions, including affidavits affirmed by Jennifer Faria and David Bradley, both dated June 6, 2022. Ms. Faria is an Agricultural Environmental Officer employed with the Ministry. She is designated as a provincial officer under the EPA. Mr. Bradley is the District Manager of the Ministry’s Peterborough District Office. He is the Director who issued the ECA.
7The Approval Holder filed a submission by email in response to the application for leave to appeal. He did not file evidence.
1. Standing to Seek Leave to Appeal
8Section 38(1) of the EBR sets out the test that the Tribunal must apply to determine 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:
The person seeking leave to appeal has an interest in the decision.
Another person has a right under another Act to appeal from a decision whether or not to implement the proposal.
9Neither the Director nor the Approval Holder raised any issues regarding the Applicants’ standing. The Director acknowledges that the Applicants are residents of Ontario and that, as adjacent neighbours of the subject property, they have an interest in the decision. The Director also acknowledges that the ECA is a Class II instrument and the Approval Holder has a right under the Environmental Protection Act (“EPA”) to appeal the decision.
10Based on the Director’s submissions and the requirements in s. 38(1) of the EBR, the Tribunal finds that the Applicants have standing.
2. The Leave Tests
11When adjudicating an application for leave to appeal, the Tribunal must apply the tests set out in s. 41 of the EBR. Section 41 states:
- 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.
Each of these two tests must be satisfied for leave to appeal to be granted.
A. The Reasonableness Test
12The s. 41 reasonableness test requires that an applicant for leave to appeal establish a prima facie case that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision that the Director made. When applying the reasonableness test, the Tribunal must consider the manner in which the Director made the decision, what the Director considered, and the decision itself. It is important to note that 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. The test is whether there is 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.
Applicants’ Evidence and Submissions
13The Applicants submit that the activities permitted under the ECA will cause negative impacts on them. They live adjacent to the subject property and operate a business on their property. They submit that under the ECA, sewage will be deposited adjacent to their shop and will significantly impact them. They submit that the setbacks from the disposal area to their shop are inadequate and they were given no opportunities to consult with the Ministry on-site to discuss the likely impacts.
14The Applicants submit that based on the topography of the area, untreated sewage will be deposited on the subject property and then flow down to the lands of adjacent property owners and water bodies. They submit that there are many neighbours in the area and the distance from the disposal area to these properties and their wells, as well as to local water bodies, is modest. The Applicants submit that they recently had a drinking water well drilled close to the property line with the subject property and that impacts on the well should be considered and appropriate setbacks must be required in the ECA. They submit that the Ministry’s guidelines fail to take into account the number of people who live and work in proximity of the subject property and the proposed setbacks are inadequate to eliminate impacts. They further argue that the potential environmental and ecological impacts of the proposed activities permitted under the ECA cannot be determined in advance. They submit that they will only be identified after the fact by groundwater monitoring and annual reporting to the Ministry. They submit that if problems arise, they will continue for a significant time before action is taken.
15The Applicants argue that the ECA also will cause adverse economic impacts, loss of enjoyment of normal use of property, and interference with the normal conduct of business. They submit that the operations permitted under the ECA will significantly affect their ability to make a living and to attract employees given the likely odours and impacts of the Approval Holder’s proposed activities. Stressing that the wind blows from the direction of the disposal area across their shop yard to their front porch, they submit that the proposed operations will harm the atmosphere of the area.
Director’s Evidence and Submissions
16In his affidavit, Mr. Bradley stated that the initially proposed area for sewage disposal on the subject property was 2.67 hectares. To ensure a proper setback from the Applicant’s new drinking water well, he said the Approval Holder amended his application in February 2021 to reduce the disposal area to 2.05 hectares so as to maintain a 90 metre (“m”) setback from the new well in accordance with the Ministry’s standards.
17Mr. Bradley described the process by which the Ministry addressed the Approval Holder’s application. He said he reviewed and considered, among other materials:
the Approval Holder’s hauled sewage disposal site assessment prepared by GHD Limited, dated November 18, 2019;
the hauled sewage (septage) inspection report, prepared by Ministry staff, dated November 17, 2020;
the technical memorandum prepared by Ministry hydrogeologist, Robert Holland, dated April 19, 2021;
the technical memorandum prepared by Ministry surface water specialist, Sarah Baxter, dated April 20, 2021;
a species at risk assessment prepared by GHD Limited, dated November 20, 2021; and,
comments made by Aide Zarkovich, a biologist with the Ministry’s Species at Risk Branch, regarding the Approval Holder’s species at risk assessment.
18Mr. Bradley stated that the proposed sewage disposal activities meet or exceed the Ministry’s standards and requirements, including those regarding slopes and separation distances from nearby wells. He said the ECA includes conditions on weekly and maximum annual volumes of sewage that can be spread and requires monitoring and reporting of groundwater samples from three groundwater monitoring wells. He said the Approval Holder must regularly collect samples and have them analyzed for certain parameters, the results of which must be provided to the Ministry for review. Mr. Bradley stated that the ECA requires the Approval Holder to maintain minimum separation distances standards even if circumstances change or new private wells are drilled close by. He said the ECA’s conditions aim to protect groundwater and drinking water resources by limiting where sewage can be spread, limiting the volume and rate at which it can be spread, and limiting the types of waste that may be spread.
19Mr. Bradley stated that Ms. Baxter, the Ministry’s surface water specialist, had no objections to the ECA. He said the proposed operations will be 350 m from the nearest river and 610 m from the nearest lake. He said this satisfies the Ministry’s required 120 m separation distance from surrounding surface water features. As a result, he said adverse impacts to local surface waters are not expected to result from the proposed operations and these requirements apply even if circumstances change, such as if river or other surface watercourse locations change. He stated that the ECA prohibits the application of sewage where it may result in surface runoff that could affect surrounding surface waters and sets seasonal and topographical limits on activities to avoid the risk of surface runoff. He stated that there is also a prohibition against the spreading of sewage on steeper slopes and the ECA places limits on the volume and rate at which sewage can be spread in order to further limit the risk of surface runoff.
20Regarding possible species at risk concerns, Mr. Bradley stated that the Approval Holder had a species at risk assessment and report completed, which found no species at risk or threatened or endangered species habitat on the subject property and found that there would be no negative effects on species at risk or habitat expected from proposed operations. He said the report was reviewed to the satisfaction of Ministry’s species at risk expert. He said the Approval Holder will need to monitor and report on species during development and use of the subject property and will be required to comply with the requirements in the Endangered Species Act.
21In regard to proximity to residential dwellings, Mr. Bradley stated that the ECA includes a minimum separation distances of 90 m from residential areas as required under the Ministry’s policies and standards. He said the closest dwelling is 100 m from the proposed sewage disposal area. He said the ECA requires that these requirements are to be maintained even if new dwellings are built close by. He said the ECA further requires the Approval Holder to manage the risk of adverse effects, including odour, dust, noise and vermin, that may result from the spread of sewage.
22Regarding other social, economic and environmental impacts, Mr. Bradley stated that the subject property is located in a predominantly rural agricultural area and the proposed activities would not be visible from the road. He said the ECA limits the amount of truck traffic to the subject property by restricting operations to seasonal use and limiting the maximum annual volume of sewage to be spread. He said the ECA requires the Approval Holder to develop spill response and public complaint procedures and to train its staff to comply with those procedures. He said it limits agricultural uses of the area used for the spreading of sewage and requires record keeping of sewage brought to the subject property, any spills that may occur, and any complaints that are received.
23Mr. Bradley stated that the ECA is for a fixed term with an expiry date in late 2023. He said it requires the Approval Holder to submit a new ECA application if the Approval Holder seeks to continue operations after that date. Mr. Bradley said this will allow the Ministry to review and assess monitoring data and evaluate any changes to surrounding land uses when considering a request to renew the ECA. He said it also permits the updating of the ECA’s terms and conditions.
24Mr. Bradley stated that he considered the applicable legislation, policies, and guidelines when making his decision, including the EPA, the Endangered Species Act, 2007, the Ministry’s “Guide for Applying for Approval of a Hauled Sewage (Septage) or Processed Organic Waste (Biosolids) Waste Disposal Site”, the Ministry’s Guideline B-7 on “Incorporation of the Reasonable Use Concept into MOEE Groundwater Management Activities”, the Ministry’s setback standards regarding drinking water wells, surface water bodies and watercourses, residential areas and sensitive land uses, and the Ministry’s Statement of Environmental Values.
25In her affidavit, Ms. Faria described her review of the Approval Holder’s ECA application and supporting materials, the comments received from the Ministry’s hydrogeologist, surface water specialist, and species at risk expert, and the public comments received regarding the ECA. The ECA application was posted on the Environmental Registry of Ontario for 45 days and 125 public comments were received and considered by the Ministry. Ms. Faria also described her visit to the subject property. She stated that, based on her review, she determined that the subject property and proposed activities under the ECA satisfy the Ministry’s standards and requirements for hauled sewage disposal sites and she recommended that the ECA application should be approved.
Approval Holder’s Submissions
26The Approval Holder submits that the Applicants have failed to satisfy the tests under s. 41 of the EBR. He submits that the Applicants have not demonstrated that the Director did not apply the relevant law and policies when approving the ECA and he submits that the ECA meets and exceeds the applicable legislative, regulatory and policy requirements.
Analysis and Findings
27The s. 41 reasonableness test requires that an applicant for leave to appeal establish a prima facie case that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision that the Director made. The Tribunal must consider the manner in which the Director made the decision, what the Director considered, and the decision itself.
28Under Ontario Regulation 347 on Waste Management, hauled sewage is defined as a “waste” and an ECA for a waste disposal site is required for its disposal. An application for such an ECA must be supported by detailed site plans and technical studies and reports demonstrating that the proposed site and operations will comply with the applicable legislation, policies, and guidelines. The Tribunal finds that in the present case, these requirements have been satisfied. Based on the evidence and submissions before the Tribunal, it finds that the Director properly reviewed and considered these materials when making his decision. It finds that he had regard to the relevant law, regulations, and policies, including the EPA, the Endangered Species Act, 2007, the Ministry’s “Guide for Applying for Approval of a Hauled Sewage (Septage) or Processed Organic Waste (Biosolids) Waste Disposal Site”, the Ministry’s Guideline B-7 on “Incorporation of the Reasonable Use Concept into MOEE Groundwater Management Activities”, the Ministry’s setback standards regarding drinking water wells, surface water bodies and watercourses, residential areas and sensitive land uses, and the Ministry’s Statement of Environmental Values.
29The ECA contains comprehensive terms and conditions, which satisfy or exceed the Ministry’s standards. These include requirements for:
setbacks from receptors and environmental features;
limits on weekly rates and annual volumes of hauled sewage that may be applied;
a groundwater monitoring program requiring regular sampling, analysis, sharing of results with the Ministry, notification of exceedances of parameter limits, and annual reporting;
controlling adverse effects, including odour, dust, litter, noise and traffic;
reporting on events that may cause or result in discharge of a contaminant which may cause an adverse effect or impair the quality of any waters;
restrictions to prevent surface runoff from the subject property;
seasonal limits on sewage disposal based on slope and soil permeability conditions;
the prohibition of sewage disposal on steep slopes or in a manner that could cause a significant threat to drinking water;
limits on agricultural uses on the subject property;
spill prevention, cleanup, and reporting;
record keeping on where, when and how much hauled sewage is deposited on the subject property; and
responding to public complaints.
The Tribunal finds that these conditions will help ensure that spills and public complaints are addressed appropriately, prevent environmental and human health impacts, prevent the risk of surface runoff from the sewage disposal area, protect water resources, and prevent off-site impacts.
30Although the Applicants have raised concerns regarding the proposed operations under the ECA, they have not demonstrated that there is 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. They have not demonstrated that the Director failed to consider or apply any specific applicable legislation, regulations, policies or guidelines or shown that the manner in which the Director made the decision, what the Director considered, and the decision itself are unreasonable. As noted above, the test that the Tribunal must apply 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, but whether there is 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.
31The Tribunal finds that, based on the evidence and submissions before it, 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 ECA.
B. Significant Environmental Harm Test
32Section 41 of the EBR requires that an applicant must satisfy both the reasonableness and the significant environmental harm tests for leave to appeal to be granted. In the present case, the Applicants have failed to satisfy the reasonableness test and the application for leave fails on that ground. However, the Parties also made submissions on the significant environmental harm test, which the Tribunal will address below.
Evidence and Submissions
The Applicants’ Evidence and Submissions
33The Applicants argue that it will not be possible to identify the environmental impacts of the ECA until after operations have begun and they become apparent through groundwater monitoring and reporting. They submit that the proposed setbacks from the area on which sewage will be spread to neighbouring water bodies are insufficient and the ECA will result in contamination of local surface waters and groundwaters. They also submit that it will result in environmental harm in terms of odour and other impacts.
The Director’s Evidence and Submissions
34Mr. Bradley stated that Mr. Holland, the Ministry’s hydrogeologist who reviewed the Approval Holder’s groundwater studies and reports, found that based on the setbacks required in the ECA, groundwater travelling through the area on which sewage will be deposited will not have active pathogens by the time it reaches the boundaries of the subject property. Mr. Bradley said that Mr. Holland recommended a spreading limit of up to 15 litres per square metre per week and recommended a maximum annual spreading limit of 4,000 cubic metres. He said these recommendations are incorporated as conditions in the ECA. He said Mr. Holland also recommended the undertaking of a groundwater monitoring program, which is included in the ECA. Mr. Bradley stated that the Ministry’s setback requirements are met or exceeded through the ECA and there is a low risk of harm to groundwater resources from the proposed activities under the ECA on the subject property.
35Regarding possible harm to surface waters, Mr. Bradley stated that the nearest surface water features are 350 m from the proposed sewage disposal area, which exceeds the 120 m minimum setback required under the Ministry’s policies based on the slope and soil permeability of the area. He said that Ms. Baxter found that the Ministry’s setback requirements are met and exceeded in the ECA and that impacts to local surface water features are not expected. In addition, Mr. Bradley stated that the ECA prohibits sewage disposal in circumstances that increase the risk of runoff and limits the risk of surface runoff by restricting the maximum volume and rate at which sewage can be spread.
36With regard to species at risk, Mr. Bradley stated that the Approval Holder’s species at risk assessment and report found that there are no species at risk or threatened or endangered species habitat on the subject property and that there would be no negative effects on species at risk or habitat expected from the proposed activities. These findings were reviewed to the satisfaction of Ms. Zarkovich, a biologist with the Ministry’s Species at Risk Branch.
37In regard to the risk of other environmental harm, Mr. Bradley stated that the ECA requires that the Approval Holder ensure that there are no unreasonable off-site effects, including odour, dust, litter, or noise and that the Approval Holder is subject to other applicable legislation, including s. 14 of the EPA prohibiting the discharge of contaminants to the natural environment.
Analysis and Findings
38The Tribunal finds that the Applicants have failed to establish a prima facie case that the decision to issue the ECA could result in significant harm to the environment. They raised concerns regarding impacts on surface water and ground water, separation distances, odours and other impacts; however, they did not produce any substantive evidence that the Director’s decision could result in such impacts or that they could result in significant harm to the environment. The Director’s decision was based on reports and studies prepared by hydrogeologists, surface water specialists, and species at risk experts retained by the Approval Holder and reviewed by the Ministry’s staff. These reports and studies, and their review, found that the ECA would not result in significant harm to the environment.
39Based on the evidence and submissions before it, it does not appear to the Tribunal that the Director’s decision could result in significant harm to the environment.
CONCLUSIONS
40Based on the evidence and submissions before the Tribunal, it does not appear that 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 this kind, could have made the decision to issue the ECA and it does not appear to the Tribunal that the decision to issue the ECA could result in significant harm to the environment.
DECISION
41The Tribunal orders that the Applicants’ application for leave to appeal is 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.