Keep Napanee Great v. Ontario (Environment, Conservation and Parks), 2023 CanLII 106628

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 09, 2023 CASE NO(S).: OLT-23-000903

PROCEEDING COMMENCED UNDER section 41 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicant: Keep Napanee Great Instrument Holder: R.W. Tomlinson Limited Respondent: Ministry of Environment, Conservation and Parks Subject of appeal: Decision to issue an Environmental Compliance Approval with Limited Operational Flexibility (Air & Noise) under the Environmental Protection Act for a hot-mix asphalt plant and aggregate quarry Reference No.: 3078-CTHPUN Property Address: 8205 County Road 2 Municipality/UT: Greater Napanee/Lennox and Addington OLT Case No.: OLT-23-000903 OLT Lead Case No: OLT-23-000903 OLT Case Name: Keep Napanee Great v. Ontario (Environment, Conservation and Parks)

Heard: In writing

APPEARANCES:

Parties	Counsel
Keep Napanee Great	Richard D. Lindgren and Jacqueline Wilson
Director, Ministry of the Environment, Conservation and Parks	Isabelle O’Connor and Amanda Landre
R. W. Tomlinson Limited	Jessica Boily and Sarah Golan

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

BACKGROUND

1R.W. Tomlinson Limited (“Approval Holder”) owns and operates the Napanee Quarry (“existing quarry”) at 8205 County Road 2, in the Municipality of Greater Napanee. The existing quarry is licensed under the Aggregate Resources Act.

2In April 2022, the Approval Holder applied to the Director (“Director”), Ministry of Environment, Conservation and Parks (“MECP”), for an Environmental Compliance Approval, which regulates air and noise under section 9 of the Environmental Protection Act, to operate a hot-mix asphalt plant (“proposed facility”) in conjunction with the existing quarry. The proposed facility would be located on lands adjacent to the existing quarry (“subject lands”). The MECP regulates air emissions to prevent adverse effects to human health and the environment, and requires applicants to comply with the MECP’s Environmental Noise Guideline – Stationary and Transportation Sources-Approval and Planning (NPC-300) (“NPC-300 Noise Guideline”), which sets sound level limits and provides guidance on how to assess compliance with those limits.

3On September 1, 2023, the Director of the MECP, issued amended Environmental Compliance Approval Number No. 3078 CTHPUN (“proposed ECA”) to the Approval Holder, to operate a hot-mix asphalt plant in conjunction with the existing quarry. The proposed activities include extraction of aggregate material, crushing and screening, hot-mix asphalt production and storage, material handling and any ancillary and support processing and activities.

4Within the 15-day timeframe prescribed by the Environmental Bill of Rights, 1993, Keep Napanee Great (“Applicant”), filed an application seeking leave to appeal in its entirety, the Director’s decision to issue the proposed ECA.

5Previously, in August 2020, the Approval Holder had filed an application for an amendment to the Zoning By-law for the Municipality of Greater Napanee to permit the establishment of a permanent hot-mix asphalt plant and a permanent ready-mix concrete plant on a property adjacent to the existing quarry with the same municipal address. This matter has been appealed by Approval Holder to the Tribunal (OLT Case No. OLT-22-003833), as the Council voted in opposition. The Tribunal held a hearing on this matter from August 14 to 25, 2023, and the decision is currently pending before another panel of the Tribunal.

6The proposed ECA would permit a hot-mix asphalt plant that would operate at a maximum rate of 80,000 tonnes of hot mix asphalt per year, with operations occurring approximately 160 days a year, from April to the end of November. Asphalt production and shipping would generally occur during daytime hours at a maximum production rate of 180 tonnes per hour, with occasional projects requiring the plant to operate during nighttime hours. The Approval Holder’s application is solely for an ECA to a permanent hot mix asphalt plant. It would not include approval for a ready-mix concrete plant.

7The proposed ECA imposes specific conditions that requires the entire operation on the property to be designed, developed, built, operated, and maintained in accordance with the Approval Holder’s Emission Summary and Dispersion Modelling Report, Acoustic Assessment Report, and the supporting information used by the Director in the proposed ECA issuance. The proposed ECA offers limited operational flexibility for future construction, alternations, extensions, or replacements to the operation, if those changes are within the scope of the hot-mix asphalt plant and existing quarry operations, do not increase the overall production limit and result in compliance with the performance limits. The proposed ECA also establishes a “Facility Production Limit” of up to 80,000 tonnes of hot-mix asphalt produced at the hot-mix asphalt plant and 1,200,000 tonnes of aggregate per year at the existing quarry. There are a total of 14 terms and conditions in the proposed ECA.

8The proposed ECA’s conditions require, among other things:

• Condition 4 - compliance with Ontario Regulation 419/05 air emissions limits, the implementation of the measures set out in s. 7.0 of the Approval Holder’s Acoustic Assessment Report and compliance with NPC-300;
• Condition 5 – visible dust emissions from drop activities must be minimized and not go beyond the property boundary;
• Condition 6 – the implementation and ongoing update of a Dust Best Management Practices Plan;
• Condition 7 – the implementation and ongoing update of an Odour Management Plan;
• Condition 10 – the preparation and implementation of operating procedures and maintenance programs for all processes that emit non-negligible amounts of contaminants, including procedures that specifically ensure that the operating temperature of equipment is below the maximum set out in the Approval Holder’s Emission Summary and Dispersion Modelling Report;
• Condition 11 – a complaint protocol with requirements for recording, notice to the MECP, investigation, and reporting on complaints;
• Condition 14 – an acoustic audit be carried out and reported on within six months; and,
• Conditions 8, 9, and 12 – reporting and record keeping requirements to ensure the MECP and the public, in certain cases, can access and assess compliance information.

THE LEAVE APPLICATION AND STANDING TO SEEK LEAVE TO APPEAL

9The Applicant is an incorporated non-profit organization with a Board of Directors and members who own lands within a one-kilometre radius of the subject lands.

10Section 38(1) of the Environmental Bill of Rights, 1993 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.

11Neither the Director nor the Approval Holder dispute that the Applicant has standing to seek leave to appeal. The Tribunal finds that the Applicant is a legal person that is resident of Ontario and that it has demonstrated an interest in the Director’s decision. The Director’s decision addresses whether to implement a proposal for an Environmental Bill of Rights, 1993 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. The Tribunal finds that under s. 38 of the Environmental Bill of Rights, 1993, the Applicant has standing to seek leave to appeal the Director’s decision.

EVIDENCE AND SUBMISSIONS FILED REGARDING THE LEAVE APPLICATION

12The Applicant filed affidavit evidence in support of its application for leave to appeal from the following persons:

• Scott Manser – who is a civil engineer with expertise in air quality issues;
• John Emeljanow – who is a civil engineer with expertise in acoustics;
• Mark Lyon Dorfman – who is a land use planner;
• Lindsay Jayna Dixon – who is an articling student employed with the Canadian Environmental Law Association;
• Casey Wells – who is a property owner who resides in the vicinity of the subject lands;
• Catherine Hannah – who is a property owner who resides in the vicinity of the subject lands; and,
• Kesi Disha – who is a Legal Assistant and Information Coordinator at the Canadian Environmental Law Association.

13The Director responded with affidavit evidence from the following persons:

• Kathleen Spence – who is a Senior Review Engineer - Air with MECP;
• Enoch Tse – who is a Senior Review Engineer - Noise with MECP; and,
• Nancy Orpana – who is the Director at MECP who issued the proposed ECA.

14The Approval Holder responded to the leave application with affidavit evidence from the following persons:

• Emily Lau – who is an air quality engineer;
• Hugh Williamson – who is an acoustics consultant and professional engineer;
• Kelly Duquette – who is a lawyer for the Approval Holder; and,
• Craig Bellinger – who is the Environmental and Land Project Manager employed at the Approval Holder.

THE LEAVE TESTS

15Section 41 of the Environmental Bill of Rights, 1993 sets out the tests that the Tribunal must consider when adjudicating applications for leave to appeal. It requires each of the tests to be satisfied for an applicant to be granted leave to appeal. These tests consist of a reasonableness test and a significant harm test. It 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.

16These tests are each addressed below.

1. The Reasonableness Test

17The test focuses on the apparent reasonableness of the decision. An applicant must demonstrate that it appears that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision. In assessing this, the Tribunal must consider the manner in which the decision was reached, what was considered, and the decision itself. For the Tribunal to find that the reasonableness test is satisfied, it must find that it appears 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.

18The standard of proof in leave to appeal applications is the establishment of a prima facie case (see Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC), at para. 45).

19The Applicant submits that the Director’s decision is unreasonable because the Director did not properly consider:

1. the MECP’s Statement of Environmental Values as required under s. 7 and s. 11 of the Environmental Bill of Rights, 1993, including:
   • the ecosystem approach;
   • cumulative effects;
   • sustainable development; and,
   • the precautionary approach.
2. the common law rights of local residents;
3. the Environmental Protection Act and Ontario Regulation 419/05;
4. MECP’s Guidelines A-10 and A-11; and,
5. NPC-300 Noise Guideline.

The Applicant also submits that the Director failed to consider the Statement of Environmental Values’ commitment to ensuing adaptive management; however, it did not provide focused submissions on this point.

1. Statement of Environmental Values

(a) Ecosystem Approach

Applicant’s Evidence and Submissions

20The Applicant submits that the ecosystem approach requires the consideration of cumulative impacts and baseline conditions. It submits that, in the present case, local ambient air quality data were not collected. It submits that selective general data from distant monitoring stations were used that are not representative of local conditions. It submits that these data sets do not address contaminants, such as benzo(a)pyrene, that will be emitted from the proposed facility. It argues that further data on air quality and human health in the local community are needed.

21Mr. Manser, the Applicant’s air quality engineer, raised concerns regarding the Approval Holder’s air quality reports and studies. He stated that there is missing information, evidentiary gaps, unsubstantiated assumptions in the Applicant's Emission Summary and Dispersion Modelling Report, Air Quality Impact Assessment, dust and odour Best Management Practices Plans, and Air Quality Impact Assessment Addendum. He found that:

• the Air Quality Impact Assessment and Air Quality Impact Assessment Addendum show exceedances of the air quality standards in Ontario Regulation 419/05 at off-property locations for total suspended particles and silica;
• all emission sources of total suspended particles and silica should have been included in the Emission Summary and Dispersion Modelling Report;
• the Air Quality Impact Assessment used the incorrect default silt content for unpaved and paved roads resulting in a significant underestimation of emissions;
• the Dust Best Management Practices Plan should have included quantifiable measures; and,
• the proposed ECA’s conditions should require the implementation of an air monitoring program.

Based on this, he concluded that it is premature to conclude that the proposed facility will comply with the applicable legislative and policy requirements. He stated that due to these deficiencies in the reports, it appears that there is a potential for exceedances of the Ontario Regulation 419/05 air quality criteria at off-property locations and sensitive receptors.

22With respect to the Approval Holder’s Acoustic Assessment Report, the Applicant submits that there are further data gaps regarding possible exceedances of the MECP’s NPC-300 Guideline Limits in residential areas in the vicinity of the subject lands. The Applicant submits that the Approval Holder’s report only models generic equipment and not the existing quarry operations or the equipment that will be used. It also submits that the predictable worst-case scenario likely was not assessed for each possible receptor.

23The Applicant’s acoustics engineer, Mr. Emeljanow, stated that he needed additional information and clarification before he could comment fully on the Approval Holder’s noise studies and, thereby, he could not support the reports’ findings that the proposed facility could operate in compliance with the NPC-300 Guideline Limits. He stated that the Approval Holder’s Acoustic Assessment Report should include an assessment of impulse noise sources and the background sound levels at the receptors need to be better calculated to ensure existing quarry traffic is removed and accurate sound levels are applied. He stated that there is the potential for exceedances of the NPC-300 Guideline Limits and that additional receptors should be studied.

24The Applicant further submits that the point of impingement regime used under Ontario Regulation 419/05 does not properly address cumulative impacts and baseline conditions, which are necessary when applying the ecosystem approach. It submits that compliance with the Regulation’s standards is necessary, but it is not sufficient.

Director’s Evidence and Submissions

25The Director submits that the data that were considered by the Director’s experts were substantial and sufficient to assess the Applicant’s application. She submits that there were no gaps or flaws in the data. The Director submits that the meteorological data set that was considered reasonably represents the surface characteristics in the vicinity of the subject lands. The Director submits that the use of these data tends to result in higher modelled concentrations and is more conservative than if local data were used. The Director submits that the use of site-specific meteorological data in the dispersion modelling would likely not have impacted the resultant findings of compliance with the applicable MECP’s limits. The Director submits that her experts determined that the Applicant’s Acoustic Assessment Report was appropriate and no applicable points of reception were excluded.

Approval Holder’s Evidence and Submissions

26The Approval Holder submits that the Applicant does not allege that the proposed ECA will result in environmental impacts. It submits that its focus is on impacts on neighbours, which is not an issue that is relevant in the application of the ecosystem approach.

Findings on the Ecosystem Approach

27The MECP’s Statement of Environmental Values 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.

28The main focus of the principle of the ecosystem approach is to ensure that decisions that may affect the environment are made in a manner that does not look at one environmental component in isolation but considers the effects of the decision on the ecological system as a whole. The decision maker must consider the processes, functions and the interactions among components of the environment that may be impacted by the decision or activity. The ecosystem approach focuses on the integrated management of air, land, water and living resources to promote conservation and sustainable use in an equitable way. It looks at the overall impacts of a decision or activity, not just the effects of single human actions isolated from the effects of other actions affecting the same ecosystem. When applying the principle, the decision maker must consider the unique and fundamental characteristics of the ecosystem in question and the need to prevent ecological harm caused by the total load of human activity from any and all sources. Thus, when applying the approach, both cumulative and other impacts must be addressed.

29The Applicant did not focus on how the proposed ECA will affect the interactions among air, land, water and living resources, but rather argued that there are gaps and flaws in the data that the Approval Holder used when assessing the air, noise, dust, and other impacts of the proposed facility. It also alleged that the Director failed to properly assess the cumulative effects of the proposed facility.

30In order to apply the ecosystem approach, comprehensive data is required in order to assess and consider the processes, functions and the interactions among components of the environment that may be impacted by the decision or activity in question. The Applicant does not contest that the Approval Holder completed air, noise, dust and other studies regarding the impacts of the proposed facility, but it argues that other data and methodologies should have been applied.

31The test that the Tribunal is required to apply is whether it appears 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 and what was considered, and it must consider 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. It must appear 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.

32In the present case, there was no evidence produced demonstrating that processes, functions and the interactions among components of the environment may be impacted by the Director’s decision to issue the proposed ECA. The Applicant has demonstrated that the decision could have been made in a different manner and that there is evidence in support of a different decision, but it has failed to demonstrate any good reason to believe that no reasonable person, having regard to the ecosystem approach, could have made the decision to issue the proposed ECA.

(b) Cumulative Effects

Applicant’s Evidence and Submissions

33The Applicant submits that the Director relied on a general policy decision relating to cumulative effects assessments for air approvals and did not consider site- or area-specific data on cumulative effects when making the decision to issue the proposed ECA. The Applicant submits that this general policy decision does not apply to the Napanee area and is limited to solely two parameters (benzene and benzo(a)pyrene) rather than to all the contaminants that would be emitted from the proposed facility. It submits that the Director did not likely consider or collect data on baseline conditions and the Approval Holder failed to undertake a proper cumulative effects study of the impacts of both the proposed hot-mix asphalt facility and the continuing quarry operations. It further submits that the Approval Holder’s Air Quality Impact Assessment contains data gaps, methodological problems, and other deficiencies. Further, it submits that the cumulative noise and air quality impacts of a mobile concrete batching plant that has been operated by the Approval Holder on the subject lands were not assessed or considered by the Director.

Director’s Evidence and Submissions

34The Director submits that the Applicant’s concerns are with respect to the content of Ontario Regulation 419 and of the MECP’s Cumulative Effects Assessment in Air Approvals Policy, which establish air standards and set out how cumulative effects are to be considered in air assessments. The Director submits that the standards used in Ontario Regulation 419 are the same as those used in the Province’s Ambient Air Quality Criteria, which are applied to assess local ambient air quality. The Director submits that if each facility in a community demonstrates compliance with these standards at a point of impingement, then the community as a whole will be below the Ambient Air Quality Criteria. The Director submits that the Applicant is asking the Tribunal to question the adequacy of relevant law and policy, which, she submits, is beyond the authority of the Tribunal to do. The Director submits that the Statement of Environmental Values does not direct the manner in which a cumulative effects analysis must be completed, but the Cumulative Effects Assessment in Air Approvals Policy does. The Director submits that the policy identifies communities that have stressed airsheds due to the presence of industrial emitters or historical exceedances. Based on this, the Director can require emitters in those communities to undertake additional assessments. The Director submits that Napanee is not one of them. Also, the Director further submits that the Approval Holder has not applied for approval of a permanent concrete batch plant and there is no such plant in the area from which to assess cumulative effects. She also submits that the Approval Holder’s existing mobile ready-mix operations were not included as they will be discontinued at the subject lands.

Approval Holder’s Evidence and Submissions

35The Approval Holder supports the Director in arguing that the Applicant is seeking changes to the MECP’s cumulative effects policies, guidelines, and practices on air emissions and noise, which are changes that are beyond the Tribunal’s authority to order.

Findings on Cumulative Effects

36The MECP’s Statement of Environmental Values states:

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.

The evidence before the Tribunal is that the Director reviewed the application of Ontario Regulation 419 and of the MECP’s Cumulative Effects Assessment in Air Approvals Policy and based on these, she considered the cumulative effects of the proposed facility. The Applicant provided a compelling critique of the Director’s use of Regulation 419 and of the MECP’s Cumulative Effects Assessment in Air Approvals Policy, but it failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to cumulative effects, could have made the decision to issue the proposed ECA. The Tribunal finds that there are no emissions sources in the area that were unreasonably omitted from consideration that would otherwise have reasonably required the Director to take a different approach in her assessment of cumulative effects in this case. The Tribunal is not making a finding that Regulation 419 or the MECP’s Cumulative Effects Assessment in Air Approvals Policy are the best means for assessing cumulative effects in every case, but the Applicant has failed to demonstrate flaws in how the Director made her decision or what she considered in making her decision that satisfy the reasonableness test. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to cumulative effects, could have made the decision to issue the proposed ECA.

(c) Sustainable Development

Applicant’s Evidence and Submissions

37The Applicant submits that the subject lands are zoned “Urban Settlement Area” and is surrounded by a mix of low- and medium-density residential dwellings as well as industrial and commercial uses. It submits that a new residential development providing housing for roughly 2,000 people will be located within one kilometre of the subject lands. The Applicant submits that the Director failed to consider the air quality, noise, dust, and odour effects of the proposed facility along with the existing quarry on current and future residents.

Director’s Evidence and Submissions

38The Director submits that she reviewed the Approval Holder’s application based on whether the proposed facility would have unacceptable impacts on current and future residents. The Director submits that the Applicant’s Emission Summary and Dispersion Modelling Report demonstrates compliance with MECP’s regulations at all neighbouring receptor locations, including those of current and future residents. The Director submits that the proposed ECA’s conditions require the Approval Holder to annually update the Emission Summary and Dispersion Modelling and Acoustic Assessment Reports to account for changes, such as those that may impact the to surrounding land uses (that are not related to modifications to the proposed facility) and to make the updates publicly available.

Approval Holder’s Evidence and Submissions

39The Approval Holder submits that the Applicant’s concerns, in relation to the principle of sustainable development, are planning-related issues. It submits that the Director is not required to consider land use compatibility when issuing an ECA. It submits that this is an issue relevant to Planning Act matters, not an appeal under the Environmental Bill of Rights, 1993.

Findings on Sustainable Development

40The MECP’s Statement of Environmental Values states that the Ministry will apply sustainable development principles when making environmentally significant decisions. It states:

The Ministry considers the effects of its decisions on current and future generations, consistent with sustainable development principles.

41The principle of sustainable development refers to the need to meet the needs of the present generation without compromising the ability of future generations to meet their own needs. The application of this principle involves the balancing of economic development, social development and environmental protection while considering the needs of current and future generations. The Applicant submits that the Director failed to consider the air quality, noise, dust, and odour effects of the proposed facility and the quarry on current and future residents. The Tribunal finds that, in making her decision, the Director considered the Applicant’s Emission Summary and Dispersion Modelling Report, which demonstrates compliance with MECP’s regulations at neighbouring receptor locations, including future receptor locations. It also notes that Condition 8 of the proposed ECA requires the Approval Holder to annually update its Emission Summary and Dispersion Modelling and Acoustic Assessment Reports. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the principles of sustainable development, could have made the decision to issue the proposed ECA.

(d) Precautionary Principle

Applicant’s Evidence and Submissions

42The Applicant submits that the Director has failed to explain how she considered the precautionary principle in making her decision. It submits that the precautionary principle presumes the existence of environmental risk in the absence of proof to the contrary so that in situations where scientific uncertainty exists as to whether an activity could have an adverse effect, the effect should be considered to be as hazardous as it could possibly be. The Applicant submits that there is no persuasive evidence that the Director considered the discharge of chemicals, metals, particulate matter, noise, and other contaminants from the proposed facility and the quarry activities to be as hazardous as they could possibly be to the local environment and the people residing in its vicinity.

Director’s Evidence and Submissions

43The Director submits that a science-based approach was taken that considered the Approval Holder’s Emission Summary and Dispersion Modelling and Acoustic Assessment Reports. The Director submits that there is a high level of certainty that there will not be adverse impacts as result of the issuance of the proposed ECA. As a result, she submits that the precautionary principle does not apply. The Director submits that the impacts from the proposed facility and from the existing quarry are well studied, documented, and understood.

Approval Holder’s Evidence and Submissions

44The Approval Holder submits that the precautionary principle applies where there is scientific uncertainty over whether an activity could result in environmental harm if it were approved. It submits that there is no scientific uncertainty regarding the impacts of the proposed facility. The Approval Holder submits that the air and noise emissions from the proposed facility have been conservatively modelled to demonstrate compliance with Ontario Regulation 419/05 and NPC-300 under worst-case conditions and the proposed ECA’s conditions requiring mitigation through a Dust Best Management Practices Plan and acoustic berms and audits ensure that there will be no adverse effects. In relation to dust and noise emissions, the Approval Holder submits that its Emission Summary and Dispersion Modelling and Acoustic Assessment Reports demonstrate that there would be no issues in these regards.

Findings on the Precautionary Principle

45The precautionary principle states 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. The MECP’s Statement of Environmental Values states that:

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

46Based on the evidence before it, the Tribunal finds that the Director considered and applied the precautionary principle and used a science-based approach when making her decision to issue the proposed ECA. The Director considered the air, noise, dust and other modelling and studies completed by the Approval Holder and found that the proposed ECA will have no adverse environmental effects. The Tribunal finds that the Director reviewed the Approval Holder’s studies and reports and assessed the adequacy of the proposed mitigation measures set out in the conditions to the proposed ECA. She found that they meet the requirements set out in the applicable MECP’s policies and Ontario Regulation 419/05. The Tribunal finds that there is no diametrically opposed expert evidence on these issues. The Applicant has raised concerns regarding assumptions, data gaps, emission underpredictions, and deficiencies in the Applicant’s Emission Summary and Dispersion Modelling and Acoustic Assessment Report and the nature, implementation, and effectiveness of the mitigation measures regarding noise, air quality, odour, and dust in the proposed ECA. It argues that these studies fail to prove that the proposed facility will not cause adverse effects. However, this is not the test to be used when applying the precautionary principle.

47The precautionary principle states 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. That is not the situation in the present case. The Director is not relying on a lack of full scientific certainty as a reason not to require stricter mitigation measures. The Applicant did not demonstrate that there are threats of serious or irreversible damage or that scientific uncertainty is being used as a reason for not taking measures to prevent environmental degradation. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the precautionary principle, could have made the decision to issue the proposed ECA.

2. Common Law Rights of Local Residents

Applicant’s Evidence and Submissions

48The Applicant submits that regulatory approvals may negate common law rights through the defence of statutory authority. It submits that when a Director considers proposed activities that might constitute a tort to nearby residents or to their use and enjoyment of their property, the Director should refuse to issue the approval, reduce the scale of the approved facilities or activities, or impose terms to mitigate impacts. It submits that the Director did not do this.

49The Applicant submits that odours, dust, and noise from the proposed facility may cause off-site nuisances and that residents in the area are presently experiencing impacts from the existing quarry and the temporary asphalt plant’s operations. It submits that these impacts were not addressed in the Applicant’s Emission Summary and Dispersion Modelling Report or considered by the Director when making her decision to issue the proposed ECA. The Applicant submits that because these activities are authorized under the proposed ECA, this may impact the ability of affected neighbours to bring claims in nuisance or other torts. It submits that it is unclear whether the Director considered these issues and whether the Director should have imposed stronger conditions in the proposed ECA to address these issues.

Director’s Evidence and Submissions

50The Director submits that its experts took into account issues raised by neighbours regarding odour, noise, and dust that were posted on the Environmental Registry and were considered when the proposed ECA’s conditions were drafted. The Director submits that, until now, the quarry has not operated under an ECA and is not subject to MECP’s requirements regarding dust mitigation or other environmental control measures. The Director submits that the proposed ECA’s conditions limit fugitive dust, require implementation of a Dust Best Management Practices Plan and an Odour Management Plan, and require the implementation of noise control measures in compliance with the MECP’s noise guidelines. The Director submits that the proposed ECA further requires the Applicant to perform an acoustic audit within six months of commencement of operations.

Approval Holder’s Evidence and Submissions

51The Approval Holder submits that the Director considered the concerns of neighbours, but it notes that these concerns relate to the existing quarry, which does not have the same conditions and requirements as those imposed under the proposed ECA. It submits that the proposed ECA includes a condition requiring that local complaints regarding impacts of the proposed facility must be investigated and addressed through mitigation measures, if warranted.

Findings on Common Law Rights of Local Residents

52The evidence before the Tribunal is that, in making her decision, the Director considered the Approval Holder’s air quality, noise, odour, and dust studies and was satisfied that the issuance of the proposed ECA would not result in adverse impacts to neighbouring residents or property owners. The evidence also indicates that, when drafting the conditions for the proposed ECA, the Director considered the odour, noise, and dust issues raised by neighbours that were posted on the Environmental Registry. The Tribunal finds that, given the studies that were before the Director and given the Director’s consideration of the neighbours’ issues that were posted on the Environmental Registry, the Director considered the common law rights of local residents. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the common law rights of local residents, could have made the decision to issue the proposed ECA.

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

Applicant’s Evidence and Submissions

53The Applicant submits that the Director is required to apply the Environmental Protection Act, including its environmental protection objectives and its general prohibition against discharging contaminants that may cause adverse effects. The Applicant submits that under the Environmental Protection Act, a contaminant includes any solid, gas, odour, sound, or vibration that causes or may cause material discomfort to any person or loss of enjoyment of normal use of property. It submits that Ontario Regulation 419/05 has prohibitions relating to air contaminants and has health-based standards for specific substances, including those that would be discharged from the proposed facility. The Applicant submits that contaminant discharges from existing activities and facilities on the subject lands have already caused adverse effects to neighbours.

54Mr. Manser stated that there is potential for exceedances of the Ontario Regulation 419/05 on air quality criteria to occur at both off-property locations and at sensitive receptors. He stated that high quality site-specific data should have been used for modelling purposes in the Air Quality Impact Assessment and Emission Summary and Dispersion Modelling Report. He stated that his assessment indicated exceedances of the health-based point of impingement standard for silica in contravention of the Environmental Protection Act and Ontario Regulation 419/05.

Director’s Evidence and Submissions

55The Director submits that quarrying activities on the subject lands are not the subject of the proposed ECA and the mobile ready-mix facility that was operated there in the past, was subject to distinct conditions from those in the proposed ECA. The Director submits that impacts from the mobile ready-mix asphalt facility that has operated on the subject lands in the past are irrelevant due to the specific conditions in the proposed ECA that address these types of possible impacts. She submits that, based on the Approval Holder’s studies, the proposed facility would operate in compliance with the MECP’s regulations, guidelines, and policies.

Approval Holder’s Evidence and Submissions

56The Approval Holder submits that Ontario Regulation 419/05 sets out the standards for specific contaminants and sets requirements for compliance. The Approval Holder submits that it has complied with the requirements set out in the Environmental Protection Act and Ontario Regulation 419/05. It submits that its Emission Summary and Dispersion Modelling and Acoustic Assessment Reports demonstrate that contaminant discharges would be minimized and the proposed facility would meet applicable standards.

Findings on Environmental Protection Act and Ontario Regulation 419/05

57Having regard to the application of the Environmental Protection Act and Ontario Regulation 419/05, the Tribunal finds that the Director took into account the requirements in the Act and the Regulation, had MECP experts review and opine on the Approval Holder’s air, noise, odour and dust studies and reports, and made her decision based on their findings and advice. The Applicant has demonstrated that different methodologies could have been used resulting in different modelling, but the Applicant failed to demonstrate why these should be preferred over Approval Holder’s studies and reports, which were used in accordance with the MECP’s practice and policies. These practices and policies require the assessment of compliance with Ontario Regulation 419/05 through the submission of an emissions summary study for contaminants and use of dispersion modelling to predict how the emitted material is diluted. The results are then compared to the prescribed standards under the Regulation. There must be an appearance 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. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the Environmental Protection Act and Ontario Regulation 419/05, could have made the decision to issue the proposed ECA.

4. MECP Guidelines A-10 and A-11

Applicant’s Evidence and Submissions

58The Applicant submits that s. 7.4.1 of Guideline A-10 states that fugitive particulate emissions must be included in an Emission Summary and Dispersion Modelling Report if the particulate contains significant quantities of contaminants, such as silica, that contribute to an MECP health-based point of impingement limit. It submits that the Director relied on the Approval Holder’s Emission Summary and Dispersion Modelling Report, which does not include modelling of fugitive dust emissions from unpaved roads on the subject lands, which include silica.

59The Applicant submits that the Director’s decision also is inconsistent with the MECP’s guidance on air dispersion modelling set out in Guideline A-11, s. 4.5.3. It submits that the Guideline states that AERMOD’s OPENPIT modelling can be used for pits and quarries, but that the Director relied instead on the Applicant’s Emission Summary and Dispersion Modelling Report, which did not use OPENPIT. Mr. Manser stated that the modelling should have used OPENPIT, which would have generated higher modeling concentrations compared to the at-grade volume sources, which were used. He stated that unpaved haul roads within the existing quarry, beside the proposed facility and their fugitive dust emissions, along with wind erosion, were not properly accounted for in the Emission Summary and Dispersion Modelling Report. He stated that concentrations of silica and suspended particulate matter will exceed the regulatory standard at /or beyond the subject property based on the air dispersion contour plots in Appendix B of the Air Quality Impact Assessment, after removing the background concentrations, when unpaved, paved and wind erosion sources are included in the review.

Director’s Evidence and Submissions

60The Director submits that the existing quarry does not operate below grade and an OPENPIT source is not an appropriate way to represent the quarry sources in AERMOD dispersion modelling. The Director submits that Guideline A-10 does not require that fugitive particulate silica emissions be included in an Emission Summary and Dispersion Modelling report. In any event, she submits that silica emissions from material handling, crushing and screening were considered. The Director submits that the maximum silica point of impingement concentration was found to comply with the Air Contaminants Benchmark list and it was determined that silica modelling in road dust and wind erosion from storage piles was not needed.

Approval Holder’s Evidence and Submissions

61The Approval Holder submits that that Guidelines A-10 and A-11 were followed in the preparation of the Emissions Summary and Dispersion Modelling. It submits that the use of OPENPIT is not required or appropriate as the proposed facility is located at grade and not in the quarry. It also submits that the size of the quarry does not meet the specifications set out in the industry guidance for the use of OPENPIT. It submits that Guideline A-11 does not generally encourage the modelling of fugitive dust emissions from unpaved roads and that MECP’s practice is to encourage the submission of a dust Best Management Practices Plan. The Approval Holder submits that its Air Quality Impact Assessment and Addendum that were submitted as part of its zoning by-law amendment application modelled fugitive dust emissions from roads and that the methodologies used are distinct from those used in the Emission Summary and Dispersion Modelling Report. It submits that this results in distinct findings that should not be directly compared. It submits that the Emission Summary and Dispersion Modelling is the required methodology for modelling air emissions under Ontario Regulation 419/05 for ECA applications.

Findings on MECP Guidelines A-10 and A-11

62MECP’s Guideline A-10 and Guideline A-11 provide guidance for assessing compliance with Ontario Regulation 419/05. Guideline A-10 provides guidance on preparing an Emission Summary Dispersion Modelling Report and Guideline A-11 provides guidance on completing dispersion modelling.

63Section 7.4.1 of Guideline A-10 states that fugitive particulate emissions from on-site roadways, storage piles, and other fugitive sources must be included in an Emission Summary Dispersion Modelling report when the particulate contains significant quantities of contaminants that may cause a health effect. However, it then states that these emissions do not need to be included in certain circumstances where the facility in question develops and implements a Best Management Practices Plan, retains a copy of it and appropriate implementation records onsite for inspection, and demonstrates that each contaminant that has a health-based ministry point of impingement limit (or that may cause health effects) has been adequately assessed in the Emission Summary Dispersion Modelling report. The proposed ECA requires the preparation and implementation of a Dust Best Management Practices Plan. The Tribunal also notes that the Director found that the maximum silica point of impingement concentration would comply with the Air Contaminants Benchmark list and silica modelling in road dust and wind erosion from storage piles was not needed. Based on this, the Tribunal finds that the Director had reasonable grounds to not require these emissions to be included in the Approval Holder’s Emission Summary Dispersion Modelling report.

64Section 4.5.3 of Guideline A-11 contains provisions regarding the modelling of emissions from source configurations or source types that may require special attention, including those from roadways, pits and quarries. Based on the evidence before the Tribunal, the Director considered the need for additional emissions modelling and determined that OPENPIT is not required or appropriate due to the location of the proposed facility and size of the quarry. On review of Guideline A-11, the Tribunal agrees with the Approval Holder that the Guideline does not generally encourage the modelling of fugitive dust emissions from unpaved roads and that the submission of a Dust Best Management Practices Plan is an appropriate method to address these issues in the present case.

65Based on these findings, the Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the MECP’s Guidelines A-10 and A-11, could have made the decision to issue the proposed ECA.

5. MECP’s NPC-300 Noise Guideline

Applicant’s Evidence and Submissions

66The Applicant submits that the Director’s application of the NPC-300 Guideline appears unreasonable due to deficiencies in the Acoustic Assessment Report in terms of the absence of any assessment of predicted sound impacts on all points of reception and the Approval Holder’s failure to model the predictable worst-case scenario for each receptor. As noted above, Mr. Emeljanow stated that he needed additional information and clarification before he could comment fully on the Approval Holder’s noise studies and thereby could not support the reports’ findings that the proposed facility could operate in compliance with the NPC-300 Guideline Limits. He stated that there is the potential for exceedances of the NPC-300 Guideline Limits and that additional receptors should be studied.

Director’s Evidence and Submissions

67The Director submits that Dr. Tse reviewed the Applicant’s Acoustic Assessment Report and determined that the assessment methodology that was used is accurate, and the Report is not deficient or flawed. The Director submits that compliance is determined by completing an Acoustic Assessment Report, which predicts impacts to noise sensitive land uses such as residential dwellings. She submits that the most significant noise emissions from a facility are determined based on the predictable worst-case scenarios of that facility’s operations, which is defined as the planned and predictable mode of operation during the hour when noise emissions from the stationary source(s) have the greatest impact at a point of reception. The Director submits that Dr. Tse reviewed the Approval Holder’s Acoustic Assessment Report and assessed the modelling used, input details, calculation protocols and output diagrams, and determined that the assessment methodology that was used was accurate. To address noise impacts, the Director submits that the ECA includes conditions requiring noise control measures such as noise barriers and berms, exhaust silencers, dust silo silencer, and administrative controls of trucks, loaders, and other equipment, including speed limits, frequencies, simultaneous operations, times of day and locations. The Director submits that, with these measures in place, noise from the proposed facility will be at or below the limits permitted by the NPC-300 Noise Guideline.

Approval Holder’s Evidence and Submissions

68The Approval Holder submits that its modelling of worst-case modes of operation demonstrated compliance with NPC-300 at 19 sensitive receptors. It submits that the Applicant produced no evidence to contradict this.

Findings on MECP’s NPC-300 Noise Guideline

69The Approval Holder had noise levels at 19 receptors in the area studied and found that the proposed facility would be in compliance with the requirements in the MECP’s NPC-300 Noise Guideline. The Applicant submits that it is possible that there are other areas in the vicinity of the subject lands where there could be noise levels that exceed those standards; however, in making her decision, the Tribunal finds that the Director considered the requirements in the NPC-300 Noise Guideline and, based on the Applicant’s Acoustic Assessment Report, she found that appropriate receptors were considered and the proposed facility would be in compliance with the Guideline when operated in accordance with the proposed ECA and its conditions. She also included conditions in the proposed ECA, which require an audit of noise emissions six months after commencement of operations and the further assessment of noise levels in the area with additional mitigation measures, if they are found to be excessive. Dr. Tse found that the methodology used by the Approval Holder in its Acoustic Assessment Report is accurate. The Tribunal finds that the Applicant has failed to demonstrate that there is any good reason to believe that no reasonable person, having regard to the application of the MECP’s NPC-300 Noise Guideline, could have made the decision to issue the proposed ECA.

Conclusion regarding the Reasonableness Test

70Based on the evidence and submissions before it, the Tribunal finds the Applicant has 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.

B. Significant Harm Test

71An 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 Environmental Bill of Rights, 1993.

DECISION

72The Tribunal orders that the application for leave to appeal is dismissed.

“Hugh S. Wilkins”

Hugh S. Wilkins VICE-CHAIR

“J. Innis”

J. Innis 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.