Clean Harbors Canada Inc. v. Ontario (Environment, Conservation and Parks)
ISSUE DATE: December 31, 2024
CASE NO(S).: OLT-24-000986
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended
Appellant: Clean Harbors Canada, Inc.
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject of appeal: Order regarding the disposal of leachate at the site, and the submission of a written abatement plan
Reference No.: 1-643278916
Property Address/Description: 4090 Telfer Road
Municipality: Township of St. Clair
Upper Tier: County of Lambton
OLT Case No.: OLT-24-000986
OLT Lead Case No.: OLT-24-000986
OLT Case Name: Clean Harbors Canada Inc. v. Ontario (Environment, Conservation and Parks)
Heard: December 10, 2024 by Video Hearing
Parties and Counsel
Clean Harbors Canada Inc. Alexander Steele Hannah Mirsky
Director, Ministry of the Environment, Conservation and Parks Nadine Harris Sarah Kromkamp
DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1This Decision arises from a Settlement Hearing ("Hearing") relating to an appeal brought pursuant to s. 140(1) of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended ("Act") against the Director's Order No. 1-643278916 ("DO") issued by the Director, Ministry of the Environment, Conservation, and Parks ("MECP") prescribing certain actions to dispose, manage, and reduce leachate from the property municipally known as 4090 Telfer Road, in the Township of St. Clair ("Site").
2The Site is the only government-licensed hazardous waste management facility in Ontario and has been in operation for over 60 years. The Site collects leachate from its active landfill areas. The leachate is stored in covered leachate storage ponds, treated by the dissolved air floatation unit ("DAF") to remove suspended impurities, and disposed of through on-site incineration or by using it as quench for the incinerator.
STATUS REQUESTS
3The Tribunal did not receive any requests for Party or Participant status prior to or during the Hearing.
SETTLEMENT
4The Parties submitted several documents in support of the settlement agreement. The Joint Submissions was marked as Exhibit 1. The Minutes of Settlement was marked as Exhibit 2. Director's Order No. 1-643278916 was marked as Exhibit 3. Waste Environmental Compliance Approval ("ECA") No. A031813 weas marked as Exhibit 4. The 2015 Design and Operations Report ("D&O") was marked as Exhibit 5. Provincial Officer's Order No. 2681-BCPKUJ-1 was marked at Exhibit 6.
5Since 2016, the Site has produced more leachate than it can dispose of in the incinerator, in accordance with the Waste ECA. As a result, the volume of leachate stored at the Site significantly exceeded the leachate storage capacity approved in the Waste ECA.
6Clean Harbors Canada Inc. ("Appellant") has been working with the MECP since 2020 to develop additional on-site disposal and storage options, including installing a DAF unit, reducing the size of leachate catchment areas, and constructing additional storage ponds. The Appellant has increased its disposal capacity by over 100% since 2019 and is currently disposing three-million litres per month.
7On August 29, 2024, MECP Officer Jessica Brown issued Provincial Officer's Order No. 1-278639222 pursuant to s. 157. and s. 157.1 of the Act. On September 12, 2024, the Director issued the DO.
8On September 27, 2024, the Appellant appealed Item Nos. 1 and 5 of the DO. The appeal of Item No. 5 was resolved by the Tribunal on November 19, 2024. This Hearing is to deal with the remaining issues under appeal with respect to Item No. 1.
9Work Order Item No. 1 from the DO is as follows:
Item No. 1 Compliance Due Date: September 01, 2024
Commencing September 1, 2024, dispose of at least 3 million litres of leachate at the Site each month, subject to the following:
a. The amount of leachate required to be disposed in a given month may be reduced by 100,000 litres for each day that the incinerator and DAF unit are not operational due to maintenance.
10The Parties have requested the Tribunal order an amendment to Item No. 1 as follows:
Item No. 1 Compliance Due Date: September 01, 2024
Commencing September 1, 2024, dispose of at least the following amount(s) of leachate at the Site each month:
a. 3 million litres during any calendar month in which the estimated volume of leachate at the Site is equal to or greater than 20.8 million litres;
b. 2 million litres during any calendar month in which the estimated volume of leachate at the Site is less than 20.8 million litres but equal to or greater than 10.4 million litres; or
c. 1.3 million litres during any calendar month in which the estimated volume of leachate at the Site is less than 10.4 million litres;
subject to the following:
i. The amount of leachate required to be disposed in a given month may be reduced by 100,000 litres for each day that the incinerator is not operational due to maintenance.
11The Parties have agreed that this amendment will resolve the remaining issues in the appeal with respect to Item No. 1, by ensuring a reduction in the amount of leachate stored at the Site while providing the Appellant with some operational flexibility.
12The Parties have also requested the Tribunal amend the DO by ordering the addition of a sixth item as follows:
Item No. 6 Compliance Due Date: March 31, 2025
By March 31, 2025, include the monthly leachate disposal requirements in Work Ordered Item Nos. 1, 2, 3, and 4 in the updated Design & Operations Plan required by Condition 2.7 of the Waste ECA.
13The Parties submitted that if the Tribunal approves the settlement agreement and orders the Director to amend the DO, then the Director has agreed to revoke the DO in its entirety upon being satisfied that the following has occurred:
a. the Design and Operations Plan has been updated and approved to include the information required by the new Item No. 6; and,
b. the Appellant has substantially complied with the requirements in Item Nos. 1 to 5.
14The Appellant has agreed as part of the settlement agreement to not appeal the amended DO or the revocation of the DO.
FINDINGS
15The amendment of Item No. 1 ensures disposal of a minimum of three million litres of leachate per month when the Site exceeds its approved leachate storage capacity ("ALSC"). If the Site is between 50-100% of its ALSC, it will be required to dispose of two-million litres of leachate per month, and if the Site is below 50% of its ALSC, it will be required to dispose of 1.3 million litres of leachate per month. This amendment is appropriate to mitigate the leachate surplus and provide the Appellants with clear direction to adjust operations.
16The inclusion of Item No. 6 will ensure that the leachate management requirements become integral to the long term operation of the Site via incorporation of the requirements into an updated D&O Report for the Site.
17The revocation of the DO by the Director, once the Order has been substantially complied with, will avoid duplication of requirements in multiple instruments.
18The settlement is protective of the environment and in the public interest.
Order
19The Tribunal orders THAT the Minutes of Settlement are approved including the commitment of the Director to revoke the Director's Order once the Order's requirements have been duplicated in an updated and approved Design and Operations Report and provided that the Appellant has substantially complied with the requirements.
20The Tribunal orders THAT the settlement is approved and directs the Director:
a. to amend Item No. 1 as stated above, and,
b. to add Item No. 6 as stated above to Director's Order No. 1-643278916.
"A. Snowdon"
A. SNOWDON
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.