ISSUE DATE: June 17, 2024
CASE NO(S).: OLT-24-000447
PROCEEDING COMMENCED UNDER subsection 38(1) of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28
Applicant: Aman Virdy
Respondent: Director, Ministry of the Environment, Conservation and Parks
Subject: Decision to issue an Environmental Compliance Approval
Description: Decision to issue an Environmental Compliance Approval for a waste disposal site to be used for transferring of soil and waste
Reference Number: ERO No. 019-6203
Property Address: 2258 River Road
Municipality/UT: London/Middlesex
OLT Case No.: OLT-24-000447
OLT Lead Case No.: OLT-24-000447
OLT Case Name: Aman Virdy v. Ontario (Environment, Conservation and Parks)
Heard: In writing
Parties
Counsel/Representative*
Aman Virdy
self-represented*
Director, Ministry of the Environment, Conservation and
Sarah Kromkamp and Shane Sukerman
Parks
Titan Transfer Inc.
Matt Gardner and Ali Naraghi
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
Link to the Decision
BACKGROUND
1On March 19, 2024, the Director, Ministry of the Environment, Conservation and Parks (“Director”), issued Environmental Compliance Approval No. 7744-CZRPHK (“proposed ECA”) to Titan Transfer Inc. (“Approval Holder”) under s. 20.3 of the Environmental Protection Act.
2The proposed ECA is for the approval of a waste disposal site to be located at 2258 River Road (“subject property”), in the City of London, for the transfer of solid non-hazardous waste. Under the proposed ECA, the types of waste that may be accepted include soil, construction and demolition waste from municipal and industrial, commercial and institutional sources, and non-hazardous waste from those sources. Hazardous or putrescible waste is not permitted.
3On April 29, 2024, Aman Virdy (“Applicant”) applied for leave to appeal the proposed ECA under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”). He seeks leave to appeal the proposed ECA in its entirety.
1. Standing to Seek Leave to Appeal
4Section 38(1) of the EBR 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:
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.
5The Director and the Approval Holder do not dispute that the Applicant meets the requirements for standing to seek leave to appeal. The Applicant is a legal person who resides in Ontario, he made submissions during the Ministry’s public consultation process and thereby has an interest in the Director’s decision, the Director’s decision addresses whether to implement a proposal for a Class II Instrument, and the Approval Holder has a right to appeal the Director’s decision under s. 139 of the Environmental Protection Act. Based on this, the Tribunal finds that the Applicant satisfies the requirements for standing under s. 38(1) of the EBR.
2. The Leave Tests
6When adjudicating applications for leave to appeal under the EBR, the Tribunal must apply the tests set out in s. 41. There are two tests that must be applied: the reasonableness test; and the significant environmental harm test. Each must be satisfied for an applicant to be granted leave to appeal. 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.
7These tests are each applied below.
A. The Reasonableness Test
8To satisfy the reasonableness test in s. 41(a), an applicant must demonstrate that there is good reason to believe that no reasonable person, having regard to the relevant law and policies, could have made the decision to issue the proposed ECA. The Tribunal must consider the manner in which the decision was reached, what was considered, and the decision itself to determine whether the test is met. 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. There must be 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.
9To succeed, an applicant must establish a prima facie case. In other words, the applicant must show that “there is a real foundation, sufficient to give the [applicant] a right to pursue the matter through the appeal process” (see Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC) ("Lafarge"), at para. 45).
Evidence and Submissions
The Applicant’s Submissions
10The Applicant filed a four-page letter in support of his application for leave to appeal. He did not file any affidavit evidence or Reply submissions.
11In his submissions, the Applicant expresses concerns regarding the environmental impacts of the waste transfer facility (“proposed facility”), which would be permitted to operate under the proposed ECA. He submits that residents in the local area rely on drilled wells for their drinking water, which, due to the subject property’s location on a slope down to the Thames River, would be exposed to significant risk of contamination from runoff from the proposed facility. He submits that the Thames River has been historically contaminated, including with polychlorinated biphenyls (PCBs), which cause long-term harm to local ecosystems. He argues that the proposed ECA insufficiently addresses potential environmental and health impacts.
12The Applicant submits that the site’s proximity to residential areas and water bodies poses a risk of environmental contamination from the proposed facility. He submits that the geographic and hydrologic context of the area increases the potential for widespread environmental impacts if any operational failures occur and if contaminants are released. He submits that a detailed environmental assessment should be conducted that focuses on mitigating potential risks to groundwater and the Thames River arising from the operation of the proposed facility.
13The Applicant submits that there was a lack of adequate public consultation in the ECA approval process, which contradicts the principles of environmental justice and public participation. He submits that public engagement is needed due to the environmental sensitivity of the area and the dependence of local residents on groundwater resources. He submits that enhanced community consultation is needed to ensure that local concerns are fully considered and addressed.
14In separate correspondence sent to the Director, the Applicant expressed concerns regarding truck traffic in the area and regarding noise, odour, and air pollution impacts caused by the transportation of waste to and from the subject property.
Director’s Evidence and Submissions
Evidence
15The Director responded to the Applicant’s request for leave to appeal with an affidavit affirmed by Mohsen Keyvani, dated May 17, 2024, and with written submissions. Mr. Keyvani is the Manager, Waste Approvals, in the Environmental Permissions Branch of the Ministry of the Environment, Conservation and Parks (“MECP”). He is the Director who issued the proposed ECA.
16Mr. Keyvani stated that the proposed facility would be composed of a 16,000 square foot building for the transfer of solid non-hazardous waste. This waste would be limited to construction and demolition waste, industrial, commercial, and institutional waste, and contaminated soils. He said the proposed facility would be approved to accept up to 2,000 tonnes of waste daily and to store up to 4,000 tonnes of waste. He said waste would be transferred and stored inside. It would then be sent off-site for final disposal. No outside storage would be permitted.
17Mr. Keyvani stated that the subject property was approved in the past for a hazardous waste transfer station. He said the previous ECA was revoked in 2014 after operations there ended.
18Mr. Keyvani stated that the amount of waste to be transferred from the proposed facility for final disposal is insufficient to require an assessment under the Environmental Assessment Act. He said that under the MECP’s “Guide to Applying for an Environmental Compliance Approval” (MECP, November 1, 2023), adjacent property owners that may be impacted by the issuance of an ECA must be notified where a waste disposal site proposal, such as this, is not subject to an environmental assessment. He said, in the present case, neighbours were notified in October 2022. He said three sets of public comments were received each focusing on the potential for increased truck traffic and emissions resulting from the proposed facility. Two of these sets of comments were from the Applicant.
19Mr. Keyvani stated that the MECP responded to the public comments that were received. In its responses to the comments, he said the MECP stated that the proposed ECA requires that there be no vehicle queuing or parking on roadways for entry to the subject property, vehicles may not drag debris from the subject property on to public roads, and vehicles transporting wastes must be covered to minimize fugitive dust and odour emissions.
20Mr. Keyvani stated that these issues also were addressed in the proposal for the ECA that was posted on the Environmental Registry of Ontario (“Environmental Registry”) . He said the proposal was posted on the Environmental Registry as a Class II instrument for 45 days from late October to December 2022.
21Mr. Keyvani stated that no public comments were received during the comment period for the proposal on the Environmental Registry.
22Regarding environmental impacts caused by the proposed facility, Mr. Keyvani stated that unloading, storage, loading and other handling of waste activities at the proposed facility would be conducted inside a building with an impermeable concrete floor. He said there would be no water, air, or odour discharges from inside the building to the outside.
23Mr. Keyvani stated that the MECP prepared an engineering assessment report based upon which he found that the proposed ECA and its conditions are consistent with MECP’s policies, the Environmental Protection Act, and Ontario Regulation 255/11 on applications for ECAs. He found that based on the assessment report, the proposed ECA and its conditions constitute good engineering practice. He reiterated that, under the proposed ECA, the types of waste that may be accepted are limited to excess soil, construction and demolition waste from municipal and industrial, commercial and institutional sources, and non-hazardous waste from industrial, commercial and institutional sources. He said the conditions in the proposed ECA comprehensively address environmental and health and safety concerns. He said Condition 12.2 does not permit hazardous and putrescible waste to be accepted at the proposed facility. Under Conditions 12.3 and 15.3 to the proposed ECA, waste must be loaded and unloaded in an enclosed area to prevent any nuisance or adverse effects. He said Conditions 13.1 and 13.2 limit the amount of waste daily received to 2,474 tonnes and the amount of waste present at any one time is limited to 3,200 tonnes. He said Condition 20.7 limits the storage of waste to seven days and Condition 2.1 requires the proposed facility to be designed, developed, built, operated, modified, and maintained in accordance with the proposed ECA application and supporting documents. He said the proposed ECA contains conditions relating to minimizing and ameliorating any adverse effects, financial assurance, inspections, information and record retention, signage and security, district manager notification, waste storage, and approved activities. He said the conditions include requirements regarding nuisance control, stormwater management and responding to complaints, among other things. Further, he said Conditions 22.1, 25.1, 26.1, and 27 respectively require the maintenance of an up-to-date Design and Operations Report, Contingency Plan, Emergency Response Plan, and Fire Safety Plan.
24Mr. Keyvani stated that, based on the conditions in the proposed ECA, wastes at the site would be managed in accordance with the requirements in Ontario Regulation 347 on waste management to protect health and safety and the environment, waste storage would be done in accordance with spill protection standards, and the proposed facility would be operated in a manner that does not result in a nuisance or a hazard to health and safety or the environment.
Submissions
25With respect to the first branch of the leave test, the Director submits that the Applicant has failed to demonstrate that there is good reason to believe that the Director’s decision to issue the proposed ECA is unreasonable, having regard to the relevant laws and policies. The Director submits that the proposed ECA was issued after a comprehensive review and consideration of applicable laws and policies and the Applicant has not identified any relevant laws or policies that the Director’s decision fails to consider. The Director submits that the Applicant has not identified errors in the Director’s decision or filed any evidence disputing the scientific or technical basis for the Director’s decision.
26The Director submits that the Applicant’s submissions constitute concerns regarding potential impacts on local groundwater and regarding noise, vibration, and air pollution impacts from traffic. The Director submits that these concerns are properly addressed by Mr. Keyvani’s evidence and by the proposed conditions to the ECA. The Director submits that he considered all relevant laws and policies, including the Environmental Protection Act, Ontario Regulation 347, and Ministry policy documents and found that the issuance of the proposed ECA is consistent with them.
Approval Holder’s Evidence and Submissions
27The Approval Holder responded to the leave application with an affidavit sworn by John Nicholson, dated May 21, 2024, and an affidavit sworn by Spiro Sempecos, dated May 21, 2024. It also provided written submissions. Mr. Nicholson is an environmental consultant and professional engineer retained by the Approval Holder. Mr. Sempecos is the corporate Director and Officer of the Approval Holder.
28Mr. Nicholson stated that the proposed use of the subject property is for the temporary storage and transfer of non-hazardous waste materials. He said waste would be stored in an existing building, there would be no outside storage of waste, and measures would be put in place to prevent nuisances such as odour and noise. He said that all public concerns that were received have been responded to. He said there would be no shredders, grinders, or compactors used on the subject property and all municipal noise and other nuisance bylaws would be complied with. He said the Director did a comprehensive review of the Applicant’s application for the proposed ECA to ensure that all legal, technical, and administrative issues were addressed.
29Based on the evidence of Mr. Nicholson, Mr. Sempecos stated that the Director issued the proposed ECA after undertaking a rigorous and meticulous process to ensure strict compliance with administrative, regulatory, and statutory requirements.
Analysis and Findings
30A waste transfer facility is a site to which waste is brought, put into containers or bundles, and transported off-site for final disposal. These facilities are defined as “waste disposal sites” under Part V of the Environmental Protection Act and require an ECA for their operation.
31The Applicant argues that the Director’s decision to issue the proposed ECA did not properly address the possible impacts of the proposed operations on local groundwater and surface water considering the proximity of the subject property to residential uses and the Thames River. However, based on the uncontradicted evidence of Mr. Keyvani, the proposed operations on the subject property do not pose a risk of potentially harming ground or surface water resources as the proposed unloading, storage, loading and other handling of waste would be conducted inside a building with an impermeable concrete floor. On this basis, there would be no waste or contaminants interacting with storm or surface water and there are no anticipated water resource impacts. Without any outside storage of waste permitted under the proposed ECA, stormwater management and drainage reports are not required. Moreover, the Tribunal notes that the proposed facility would only process non-hazardous waste. Condition 21.1 of the proposed ECA requires the Approval Holder to ensure that stormwater generated on the subject property is managed in accordance with both provincial and municipal requirements. Conditions 12.5 to 12.7 require that any unapproved waste that is received at the facility must be removed immediately and Conditions 17.1 to 17.9 require that soil be tested and characterized before delivery to the facility. To further address health, safety, and environmental concerns, Conditions 5.1 to 5.3 require the minimization of environmental impacts and Conditions 25 to 28 address spills, emergency response, and fire safety concerns.
32The Applicant did not identify any applicable laws or policies that prohibit the proposed facility on the subject property and has failed to demonstrate that the Director failed to consider any applicable laws and policies when making the decision to issue the proposed ECA. Based on the uncontradicted evidence of Mr. Keyvani, the Tribunal finds that the Director considered all applicable statutory, regulatory, and policy requirements prior to issuing the proposed ECA. The Tribunal has taken into account the requirements in the MECP’s Statement of Environmental Values and finds that, based on Mr. Keyvani’s evidence, these were considered by the Director.
33Specifically regarding noise, vibration, and air pollution impacts from traffic, the Applicant has failed to provide any evidence that the proposed facility would cause such impacts and has failed to identify any applicable laws or policies that would prohibit the proposed facility for these reasons. Mr. Keyvani’s evidence is that the MECP does not have any regulatory or policy requirements for separation distances from waste transfer facilities to residential uses. The Director submits that traffic and road issues are also beyond the scope of an ECA. The Director submits that these are municipal matters. The Tribunal notes that the proposed ECA does not replace other applicable statutory, regulatory, or municipal requirements, including those set out in municipal zoning and noise by-laws. It further notes that Conditions 20.1 to 20.9 include measures to reduce any nuisances caused by the proposed facility including those arising from the queuing of vehicles and fugitive dust and odour emissions from the transportation of waste. Further, given that the proposed operations will be conducted indoors, the Tribunal finds that other noise and odour emissions should not be significant.
34Regarding public consultation concerns, the Applicant submits that better notice and opportunities for engagement should have been provided. Based on Mr. Keyvani’s uncontradicted evidence in this regard, the Tribunal finds that the public consultations were completed in accordance with the requirements in the EBR, including notice to neighbouring property owners and the proper posting of the proposed ECA on the Environmental Registry. The proposal was posted on the Environmental Registry for 45 days. It is also undisputed that the Director responded to all public concerns that were received and addressed those concerns. The Tribunal notes that an environmental assessment is not required for the proposed facility under the Environmental Assessment Act.
35Based on the evidence and submissions before it, the Tribunal finds that 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 Environmental Harm Test
36An applicant must satisfy both the reasonableness and the significant harm tests under s. 41 of the EBR for leave to appeal to be granted. Given the Tribunal’s findings on the reasonableness test, the Tribunal finds that it is unnecessary to apply the significant harm test under s. 41(b) of the EBR. In any event, based on Mr. Keyvani’s evidence, the Tribunal finds that given that unloading, storage, loading and other handling of waste activities at the proposed facility would be conducted inside a building with an impermeable concrete floor and there would be no discharges or emissions from inside to the outside of the building, the proposed ECA would facilitate operations that do not pose a risk to groundwater or surface water resources or the environment and will not likely cause odour, noise, or air pollution emissions.
DECISION
37The Tribunal orders that the application for leave to appeal is dismissed.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
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.