GFL Environmental Inc. v. Director, Ministry of the Environment, Conservation and Parks, 2025 CanLII 27430

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 24, 2025

CASE NO(S).: OLT-24-000579

PROCEEDING COMMENCED UNDER subsection 139(2)(e) of the Environmental Protection Act, R.S.O. 1990, c. E. 19, as amended

Appellant: GFL Environmental Inc.

Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of Appeal: New terms and conditions imposed on an Amended Environmental Compliance Approval for a 178.6 hectare landfilling site, a composting facility and a waste transfer and processing station within a total site area of 429 hectares

Reference No.: ECA No. A420018

Property Address/Description: 17125 Lafléche Road (Eastern Ontario Waste Handling Facility)

Municipality/Upper Tier: North Stormont Township/United Counties of Stormont, Dundas and Glengarry

OLT Case No.: OLT-24-000579

OLT Lead Case No.: OLT-24-000579

OLT Case Name: GFL Environmental Inc. v. Ontario (Environment, Conservation and Parks)

Heard: January 20 to January 29, 2025 by Video Hearing and by Written on February 26, 2025

APPEARANCES:

Parties	Counsel
GFL Environmental Inc.	Rosalind Cooper
Director, Ministry of the Environment, Conservation and Parks	Sarah Kromkamp Joanna Skrajny Rachel MacDougall (articling student)

DECISION OF THE TRIBUNAL DELIVERED BY T.F. NG

Link to Decision

Background

1GFL Environmental Inc. (“Appellant/GFL”) has filed an appeal against the Director, Ministry of the Environment, Conservation and Parks (“MECP”) pursuant to s. 139(2)(e) of the Environmental Protection Act.

2The MECP issued an amended Environmental Compliance Approval (“ECA”) to the Appellant for the Eastern Ontario Waste Handling Facility located at 17125 Lafléche Road, in the North Stormont Township (“Site”). The Amended ECA is for a 178.6 hectares landfilling site, a composting facility, and a waste transfer and processing station located within a total site area of 429 hectares.

3The Appellant is appealing Condition 36.6, which, for the first time imposes a more stringent leachate level.

The Eastern Ontario Waste Handling Facility

4The Eastern Ontario Waste Handling Facility (“EOWHF”) (also known as the Moose Creek Landfill) is currently owned and operated by GFL. It is located near the intersection of Highway 417 and Highway 138. The adjacent land use is predominantly agriculture.

5The EOWHF has been in operation since 1999. It is currently operating under MECP Amended ECA No. A420018, for acceptance of solid non-hazardous municipal, industrial, commercial, and institutional wastes generated within the Province of Ontario. The landfill is approved to receive 755,000 tonnes of waste per year and average 2,500 tonnes per day for disposal. The entire facility, including the landfill, the composting facility, and waste transfer station, can receive up to 4,000 tonnes of waste per day. ECA No. A420018 for the EOWHF was first issued on November 4, 1999, and has been amended a number of times. Prior to the May 15, 2024 amendment, it was last amended in January 2023.

6The Site also has an Industrial Sewage Works ECA 7899-CBQP6L, which was amended most recently on March 31, 2022 (“Sewage Works ECA”). The Sewage Works ECA approves the sewage works for the collection, transmission, treatment and disposal of landfill leachate, and stormwater for the Site. Leachate is the liquid generated from rainfall and the natural decomposition of waste that is filtered through the landfill to a leachate collection system at the base of the landfill. The leachate collected from the landfill cells is first pumped to the South Leachate Aeration Pond, and then the Southeast Leachate Aeration Pond, both equipped with unidirectional floating aerators. The Southeast Leachate Aeration Pond discharges to a below-grade force main, which directs evacuated pre-treated leachate to the on-site Leachate Treatment Facility (“LTF”), where it is treated by means of the Suspended Media BioReactor process followed by a dissolved air flotation process, and a membrane or microfiltration filtration system. After treatment, the effluent is transferred to one of two effluent holding ponds, and then discharged in batches to the Fraser Drain. In case the LTF is unavailable, pre-treated leachate is directed to the North Leachate Holding Pond as a contingency measure.

7The LTF was first constructed in 2006/2007 and upgraded in 2015. The Sewage Works ECA approves the LTF to have a treatment capacity of 833 cubic metres (“m³”) per day and a maximum of 200,000 m³ per year.

8Since 2019, MECP’s surface water specialists in the Technical Support Services section have had concerns with the effluent quality of the LTF. As a result, the 2019 amendment to ECA No. A420018 included Condition 36.4, requiring GFL to submit an application to amend the Sewage Works ECA to the Ministry by April 30, 2020, including a detailed design for upgrades to the LTF to address potential surface water impacts. Since that time, GFL has sought several ECA amendments extending this deadline. On October 30, 2024, GFL submitted an application for an amendment to the Sewage Works ECA for a major upgrade to the LTF, to increase the treatment capacity to 365,000 m³ per year and improve the effluent quality. The Sewage Works ECA amendment application will be reviewed by the Industrial Wastewater Team.

Environmental Assessment

9The EOWHF is subject to the requirements of Ontario’s Environmental Assessment Act (“EAA”). The existing EOWHF landfill (Stages 1 to 4) was approved under the EAA in 1999 and 2019. Stages 1 to 4 have a total capacity of 11.6 million m³. Starting in 2020, GFL began an Environmental Assessment (“EA”) to expand the landfill over four additional stages, which is Stages 5 to 8, providing an additional 15.1 million m³ of landfill disposal capacity.

10The EA was approved by the Minister of MECP on March 8, 2024, and the final Cabinet approval was received on April 30, 2024.

11The total capacity of the landfill will be approximately 26.7 million m³ when Stages 1 to 8 are fully developed. Phase 1 was approved in 1999 and included Stages 1 to 3A with a total landfill capacity of 7.4 million m³. Phase 2 was approved in 2019 and included Stages 3B and 4 with a total landfill capacity of 4.2 million m³. Currently, landfilling is being conducted in Stage 4 which is expected to be complete by April 2025.

ECA Amendment Application

12Landfills also require an ECA issued under s. 27 of the Environment Protection Act (“EPA”). On October 31, 2023, GFL applied for an amendment to their existing ECA, for the construction and operation of Stages 5 and 6 of the landfill. The ECA Amendment Application included the ECA Application Form, Design and Operations Report Stages 5 and 6 and appendices (“D & O Report”), and other supporting documents.

13At the time the ECA Amendment Application was submitted, the EA process for the future development in Stages 5 to 8 had not yet been completed.

14On May 15, 2024, following the approval of the EA for the Site, the Director issued Amended ECA No. A420018 to approve the development and operation of Stages 5 and 6 of the landfill. These additional stages are expected to provide an additional 7.2 million m³ of landfill disposal capacity and extend the operating life of the landfill by eight to ten years.

15Stages 7 and 8 of the landfill, approved through the EA process, were not included in the ECA Amendment Application and are therefore not approved under the current Amended ECA. A further ECA amendment will be required in the future for the development and operation of Stages 7 and 8, which would provide an additional approximately 7.9 million m³ of landfill disposal capacity.

16The Amended ECA No. A420018 alters the ECA based on the change relating to a new Condition 36.6 of the ECA. Condition 36.6 of the Amended ECA stated (emphasis added):

The Owner shall ensure that the collected leachate is promptly removed from each landfill cell as required by Reg 232. Under normal conditions (except during storm events and spring snow melt), the leachate level within each landfill cell in Stages 5 and 6 is kept at less than 0.5 metre over the landfill base clay surface.

17The Appellant found that the added condition has significant implications for its operations, and it filed a Notice of Appeal of the Amended ECA, of which condition 36.6 is the subject matter of this Decision.

18On January 20, 2025, the first day of the Hearing, the Tribunal heard objections to the qualification of Rick Li at which it allowed Mr. Li to be qualified as an expert waste engineer with expertise in landfill engineering matters. The reason being Mr. Li is a professional engineer with 16 years of waste management engineering experience and is engaged in daily review and determination of landfill engineering related matters. Despite Mr. Li being employed by MECP, he could assist the Tribunal in giving his opinion evidence on an independent expert witness basis.

19On the fifth day of the Hearing when Dale Gable was called to testify, the Director objected to what Mr. Gable was to testify on. Mr. Gable’s opinion on the facts would be duplicative of other witnesses’ opinion already tendered before him. What was apparent was that Mr. Gable’s Witness Statement contained his view of what a MECP director should do, and the process of decision making as a director of the MECP. Mr. Gable was a past signing director of MECP who is familiar with the role of director, had made decisions as a director, had taken procedural steps, and looked at the legislations and guidelines in making decisions on ECAs. Mr. Gable intended to give a blow-by-blow guide to decision making on the ECA as he sees it and which in his view any director must follow.

20After hearing submissions, the Tribunal ruled that the major portions of the Gable’s Witness Statement contained matters that could be interpreted as a usurpation of the functions of the current director’s role and duty. Further those portions on what a director must do to effect a proper ECA (according to Mr. Gable) could be an arrogation of the role and function of the trier of facts in the instant case.

21The Tribunal directed the Appellant to work with the witness to scope out all director decision methodology matters from the statement, that the trier of facts will deal with. It directed that Mr. Gable may give factual evidence of any remaining paragraphs that are not duplicative of other witnesses before him. After adjourning for the day, and on commencement of the Hearing the following day, Appellant’s counsel informed the Tribunal that Mr. Gable will withdraw as witness since matters he will testify on could be duplicative.

Issues

22There were two listed issues to be addressed:

1. Should Condition 36.6 of Amended ECA No. A420018 be amended to remove the requirement to keep leachate levels within each landfill cell in Stages 5 and 6 at less than 0.5 metres over the landfill base clay surface and to replace it with a requirement to keep these leachate levels at less than 1.5 metres average head (above clay surface) or 2.0 metres at any given location? The answer is no.

2. If the response to Issue 1 is no, should Condition 36.6 of Amended ECA No. A420018 be amended:

(a) to reflect a different leachate level in Stages 5 and 6, and what is the appropriate level? Answer: Yes, and the level is less than 1.5m above the clay base.

(b) so that the leachate level takes effect at a later date, and if so, what date is appropriate? Answer: Effective date is date of issue of the amended ECA i.e. May 15, 2024.

Relevant Legislation

23The relevant legislation is the Environmental Protection Act:

Purpose of Act

3(1) The purpose of this Act is to provide for the protection and conservation of the natural environment.

Approval, waste management system or waste disposal site

27 (1) No person shall use, operate, establish, alter, enlarge or extend a waste management system or a waste disposal site except under and in accordance with an environmental compliance approval.

When Director refuses licence, permit or approval

139 (2) When the Director,

(d) alters the terms…

(e) imposes new terms and conditions in an environmental compliance approval, renewable energy approval or certificate of property use,

the Director shall serve notice together with written reasons therefor upon the applicant or the person to whom the licence, permit, approval, environmental compliance approval, renewable energy approval or certificate of property use is issued, as the case may be, and the applicant or person may, by written notice served upon the Director and the Tribunal within 15 days after the service of the notice, require a hearing by the Tribunal.

Powers of Tribunal

145.2 (1) Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

Issue : The main issue is: Whether the Tribunal should confirm, alter or revoke Condition 36.6, of the Amended ECA.

Evidence of the Director/MECP

Mohsen Keyvani

24Mr. Keyvani is the MECP Director who amended the ECA. He presented factual evidence.

25Mr. Keyvani provided an overview of the ECA decision-making process. He stated that for activities governed by s. 27 of the EPA “namely using, operating, establishing, altering, enlarging or extending a waste management system or a waste disposal site, applications may be made to the Director appointed for the purposes of Part 11.1 of the EPA for approval to do so”. That approval takes the form of an ECA.

26Mr. Keyvani stated that his review is guided by the Ministry’s legislation and policies, and the purpose of the EPA, by ensuring that the activity as proposed is regulated in such a way as to provide for the protection and conservation of the natural environment and public health.

27Senior Waste Engineer Rick Li was assigned to conduct a technical review of the ECA application.

28Mr. Li recommended that an Amended ECA be issued with Condition 36.6.

29The rationale was based in part on Regulation 232/98 - Landfilling Sites ("O. Reg. 232/98"), made under the EPA, which establishes standards for the construction and operation of landfills in Ontario. O. Reg. 232/98 requires that a primary leachate collection system be designed in accordance with Schedule 1 (Service Lives - Primary Leachate Collection Systems) of the regulation, which includes the requirement that leachate be removed from the collection system in order to avoid obstructions to leachate flows within the system (Schedule 1, section 1.s. 9). This is an essential requirement to the maintenance of the service life of the system for the protection of groundwater.

30Mr. Keyvani stated that this was also supported by Mr. Li’s review of other jurisdictions in Canada, the United States, and other landfills in Ontario. The leachate levels standard practice for leachate levels in landfill cells, Mr. Li concluded, was below 0.5 metres.

31Mr. Keyvani’s decision on Condition 36.6 was also based on his personal knowledge of odour issues complaints attributed to high leachate levels at GFL’s other landfill site at Stoney Creek and that the Ottawa District Office communicated to him that the office was unaware of any issue apart from financial concerns that may prevent GFL from trucking the excess leachate to an offsite wastewater treatment facility.

32Mr. Keyvani stated that Condition 36.6 is protective of the environment and the public and should not be amended.

33Under cross-examination, Mr. Keyvani acknowledged that he was not involved in Condition 36.6 until it was drafted for his attention. He was not aware that the Moose Creek landfill operates on a Hydraulic Trap system. Although the Moose Creek landfill system is backed by science in the D & O Report for a 1.5 metres leachate level, Mr. Keyvani wanted to go one level higher, i.e. to reduce the level to 0.5 metres, so that this will prevent the risk of contaminant migration to the groundwater. Although, Mr. Keyvani admitted that he was not aware of instances of contaminant migration at the Moose Creek landfill site.

Rick Li

34Mr. Li is the MECP senior waste engineer and waste approvals review engineer, who assessed the Appellant’s ECA application. The Tribunal qualified Mr. Li as an expert to provide opinion evidence relating to landfill engineering matters. He has provided both fact and opinion evidence.

35Mr. Li undertook a technical review of the application to ensure that what is being proposed meets all Ministry requirements, including those found in legislation, regulations, and Ministry guidelines. He also considers whether what is being proposed is adequately protective of the environment and human health and follows best practices for waste management engineering.

36At the conclusion of the review, Mr. Li prepared an engineering assessment report, which summarized the review of the application and made a recommendation to the Director. The engineering assessment report also contained a summary of any comments received, including from the Ministry’s local District Office, Ministry experts in the Technical Support Section and/or Standards Development Branch, as well as a review of any relevant zoning or municipal by-laws and calculation of Financial Assurance, where applicable.

37In this recommendation, Mr. Li prepared a draft ECA that included conditions that were site-specific and protective of the environment and human health for consideration by the Director.

38Mr. Li said his comments at the initial review, and those of Ministry technical review staff were provided to GFL for response. GFL also had the opportunity to review and comment on draft versions of the Amended ECA.

39Mr. Li explained that Leachate is the liquid generated from rainfall and the natural decomposition of waste that is filtered through the landfill to a leachate collection system at the base of the landfill. The leachate collection system functions to direct the leachate to collection sumps so it can be properly removed from the landfill. The containment system constructed at the base of the landfill prevents leachate migration into groundwater. Leachate is a contaminant source that has the potential to impair the natural environment if not properly contained and removed from a landfill. Leachate is also a major source of odour at landfills.

40The D & O Report submitted with the ECA Amendment Application indicates that the leachate collection system at the EOWHF consists of 0.5 metres thick clear stone drainage blanket, with perforated leachate collection pipes installed at the bottom that are connected to a leachate sump located at the low point of each cell. There is 0.15 metres thick clear stone protection layer that separates the drainage blanket and the waste. At the base of the landfill, under the separation geotextile, there is native silty clay that functions as a barrier and further contains the leachate.

41Mr. Li noted that the Tetra Tech D & O Report (section 6.2.5) (Exhibit 6-Appellant’s Book of Documents - Tab 10) suggests an average leachate level of 1.5 m over the clay surface and 2.0 metres at any given location is the maximum allowable leachate level for the Site. Although this is consistent with the leachate level trigger set out in the D & O Reports for Stages 1 to 4, in his opinion, this is too high and typical large landfills usually have a maximum leachate head of 0.3 metres. He sent his review comments on this issue to GFL.

42Given the ongoing leachate management problems at this Site, and considering the requirements of O. Reg. 232/98, as well as similar design standards adopted in other jurisdictions as outlined below, Mr. Li came to the conclusion that it was necessary to impose a condition in the ECA to limit the leachate level in the landfill cells.

43Mr. Li opined that Regulation 232/98 – Landfilling Sites (“O. Reg. 232/98”), made under the EPA, establishes standards for the construction and operation of landfills in Ontario. Section 10 of O. Reg. 232/98 provides that any new landfill or increase in total waste disposal volume of an existing landfilling site must, among other things, meet the requirements of this section for ground water protection. This includes the inclusion of a primary leachate collection system that meets the conditions set out in Schedule 1 for a 100-year service life. The ECA Amendment Application confirms that the landfill is designed to meet this standard (D & O Report, section 4.6.3 and the Geology and Hydrogeology Effects Assessment Report, Page 13 -Exhibit 6, Tab 8 - Terrapex report). Section 9 of Schedule 1 of O. Reg. 232/98 provides that for a leachate collection system that is designed with a 100-year service life, “leachate must be removed from the collection system in order to avoid obstructions to leachate flows within the system.”

44Although O. Reg. 232/98 does not specify the limit for leachate levels in landfill cells, the thickness of leachate collection system at the EOWHF is 0.5 metres. Allowing a leachate mound of higher than 0.5 metres will result in leachate levels exceeding the height of the leachate collection system, excessive accumulation of leachate within the landfill cells and waste being submerged in leachate.

45Dr. Kerry Rowe, who is a renowned landfill expert in Ontario and who developed O. Reg. 232/98 and the Landfill Standards, wrote in one of his publications: “for modern MSW [municipal solid waste] landfills, the leachate head in LCSs [leachate collection system] is normally required to be less than 0.3 m” (Rowe, et al, 2010). This is the minimum thickness of LCS required by O. Reg. 232/98 Schedule 1, section 1. 1. Therefore, Mr. Li interpreted this to mean that for new and expanding landfills that are subject to O. Reg 232/98, and if the primary leachate collection system is designed with a service life of 100 years, by default the leachate level should not exceed the thickness of the leachate collection system. In the case of the EOWHF, this is 0.5 metres.

46Moreover, many large landfills in Ontario have a designed maximum leachate level of 0.3 – 0.5 metres. For example:

1. The Ridge Landfill, a very similar site to the EOWHF, utilizes a thick layer of silty clay as a barrier for leachate containment and the leachate collection system consists of a drainage blanket and leachate collection pipes. The designed maximum leachate level is 0.3 metres over the landfill base.

2. The Stoney Creek Landfill, also owned by GFL, is designed with a maximum leachate level of 0.5 metres. This site, Mr. Li said, has a significant odour issue, and it has been determined that the excess leachate level within the landfill that exceeded the designed level is the major source of odour.

47In Mr. Li’s experience, he had not seen any other landfill site in Ontario subject to O. Reg 232/98, and with a designed service life of 100-years for the leachate collection system, that is designed with a leachate level of higher than 0.5 metres.

48Mr. Li conducted literature research and a jurisdictional review, which concluded that many jurisdictions recommend keeping the leachate head below 0.5 metres:

eg: in British Columbia; Alberta; and USA.

49Mr. Li opined that the condition he recommended on the ECA of 0.5 metres above the clay surface should remain. To maintain the functionality of the leachate collection system and ensure it meets the service life as per O. Reg. 232/98, prevent contaminant migration to groundwater and minimize odour from elevated leachate, it is critical to remove the leachate from the collection system in a timely manner as required by O. Reg. 232/98 and maintain the leachate level under the top of the drainage blanket.

50In accordance with the requirements in O. Reg 232/98, and upon review of similar landfill designs in Ontario, as well as jurisdictional research, it is Mr. Li’s opinion that imposing a 0.5 metres limit for the leachate level in Condition 36.6 of the ECA is reasonable, necessary, and in line with the best management practices implemented at similar landfill sites. Limiting the leachate level to 0.5 metres is consistent with the regulation and is necessary to maintain the effectiveness of the leachate collection system and prevent migration of contaminants into groundwater.

51Under cross-examination, Mr. Li admitted that he had not visited the site and had relied on Erin Legue’s reports to him. He agreed that when the leachate is covered in water or by the waste, there will be no concerns with odours. The images from Ms. Legue that he viewed were from the Stage 4 Cell which had the first lift, where part of the cell was still exposed. Mr. Li conceded that a fully submerged leachate covered by waste in a month’s time will not have odours.

Erin Legue

52Ms. Legue is the Environmental Compliance Officer at the MECP. She gave fact evidence.

53On April 24, 2024, Ms. Legue attended the Site, unannounced, along with Environmental Compliance Officer (Acting) Peter Petrie and Junior Environmental Officer Dany Bourdeau. The purposes of her visit were to assess compliance of the Site with ECA No. A420018 and Industrial Sewage Works ECA No. 7899-CBQP6L on a normal business day and to make observations for Senior Waste Engineer Rick Li.

54Upon arrival at the Site, Ms. Legue met with Greg van Loenen of GFL and informed him that she was at the Site to make observations for herself and Senior Waste Engineer Mr. Li. She drove the Ministry fleet vehicle around the Site to make observations and Mr. Van Loenen led while driving in a GFL fleet vehicle.

55While driving to the active waste face, Ms. Legue observed a water tanker truck pumping water from a surface water body. She stopped at the truck and spoke with the GFL employee working there, who stated that they fill the truck with water and drive onto the active waste face to rinse the heavy machinery that is used to compact and move waste within the landfill. It was her understanding that this rinsewater was contributing to leachate levels within the active landfill face.

56Ms. Legue then continued to follow Greg van Loenen to the active waste face, formally referred to as Cells 4 and 6 within Stage 4 of the landfill. Both Ms. Legue and Mr. Van Loenen parked their trucks and walked onto the active waste face, which the active waste face had waste being deposited and placed into the landfill. The active waste face has an area for vehicles to enter from the Site's roadways and drive onto the waste mound to dump their waste. Equipment is then used to move the waste around for final placement. Within the active waste area, there was a large area of pooled leachate and stormwater. This pooled area was located north of the active waste placement area. She was standing on the north side of the pooled area, at which she detected odour coming from the pooled leachate.

57Based on Ms. Legue’s experience with this landfill and other landfills, the amount of leachate and surface water ponding she observed was not appropriate management of the landfill. She shared these concerns with Mr. Van Loenen, who stated that the amount of surface water and leachate observed was typical for the Site.

58When Ms. Legue asked Mr. Van Loenen how GFL managed the leachate pumping from active and completed cells, he responded that all of the cells are hydraulically connected. When leachate is pumped from the landfill, the leachate level is lowered throughout.

59Ms. Legue then drove through Stages 3 and 4 to observe the surface water perimeter drains for any potential leachate impacts.

60During Ms. Legue visit of the Site, she took photos that were made exhibits at the Hearing. Ms. Legue also took two videos (made exhibits-Exhibit 9) while standing in the active waste disposal area, facing south, in which she observed a large surface area of brown-coloured ponded leachate and stormwater. There was uncovered waste surrounding the entire ponded area.

61Ms. Legue’s understanding is that Condition 36.6 would require the leachate to be managed more appropriately, than what was currently described in the D & O report and required under ECA No. A420018. From a compliance perspective, she believes that existing ECA conditions already in place at the Site, support adding Condition 36.6 into ECA No. A420018.

62GFL’s ECA No. 7899-CBQP6L permits the collection, transmission, treatment and disposal of landfill leachate and stormwater to service the site. GFL’s ECA No. A420018 permits the site to operate a waste disposal site. Both ECAs have requirements for appropriate leachate management at the Site and require contingency measures should the Site not be able to operate appropriately, such as a disruption or emergency.

63The Sewage Works ECA permits GFL to establish and operate LTF on Site and requires GFL to have an agreement in place to allow for offsite disposal of leachate.

64Ms. Legue views the ECA’s new Condition 36.6 is justified.

Evidence of the Appellant

Dave Richmond

65Mr. Richmond is the Vice-President and Regional Manager at the Appellant. He gave fact evidence. Counsel for the MECP objected to Mr. Richmond testifying stating that he was not a person copied on the GFL’s correspondence and that his evidence would be repetitive of others. The Tribunal allowed him to testify from his perspective as to his management of the overall operations of GFL and the Tribunal will give appropriate weight to his testimony, if any.

66Mr. Richmond stated his focus on the Moose Creek Landfill increased considerably in 2019, following an email dated June 27, 2019, from the MECP Officer responsible for the Landfill, enclosing a review memorandum dated June 24, 2019, from the MECP surface water specialist. The review memorandum stated that GFL’s treated effluent might have an impact in low flow season on Fraser Drain, which leads to Moose Creek. This was despite that GFL followed all requirements. The email from the MECP Officer stated that the Appellant can no longer release treated effluent in low flow season.

67This inability to discharge treated effluent resulted in the accumulation of leachate, making any reduction in leachate head very challenging to achieve. The introduction of the reduced leachate head level in the Amended ECA issued by the MECP in May 2024, further compounded this challenge.

68Mr. Richmond stated that the Moose Creek Landfill provides significant and critical landfill capacity for the province and assists with capacity issues and limitations at other landfills in Ontario.

69There have been significant investments made by GFL at the Moose Creek Landfill and in green energy projects. Funding should not be diverted away from projects with significant benefits to the community and the environment to truck away treated effluent from the Landfill to the nearest capable municipality (95 km round trip), when that effluent has no negative environmental impacts.

70There are significant economic costs and environmental impacts associated with maintaining lower leachate levels, of which there is a lack of off-site treatment plants that could accept raw leachate and treated effluent from the Moose Creek Landfill. The impact of greater GHG emissions, increased dust and noise, increased safety risks and other consequences is unwarranted given the lack of technical justification for a reduction in the leachate head level. Further, the level of treatment that those plants provide is less than that of the on-site LTF at Moose Creek. This means that GFL may need to truck raw leachate to plants that cannot achieve the same level of treatment as GFL’s on-site LTF, resulting in a lower quality effluent being discharged into the environment.

71In cross examination, Mr. Richmond admitted that he was not involved in the day-to-day operations at Moose Creek Landfill, in fact he mainly manages while in a car or in a plane, and has interactions with the ministry people and site people if a site is at risk.

Jean-Phillipe Laliberte

72Mr. Laliberte is the Vice-President, Landfill and Compost Operations, Eastern Canada, for GFL.

73Broadly, Mr. Laliberte began to be more involved in the operations, capital planning and special projects when he was appointed Vice-President. One of the major projects he worked on, alongside the expansion project was the conceptual design of the proposed upgrades to the on-site LTF, from an oversight position.

74On April 11, 2024, GFL received comments from the MECP on the ECA amendment for Stages 5-6 and, for the first time, a new compliance condition for leachate level was introduced. Prior to this, the MECP had never mentioned introducing a different leachate head level for any stages of the Landfill other than the ones currently applicable. Mr. Laliberte’s immediate concern was that GFL could not comply with this condition, certainly not without some reasonable transition period to permit upgrades to be completed to the on-site LTF. Also, for him, there was no information to suggest that the current leachate head levels applicable to Stages 1-4 were problematic, nor justifying a change for Stages 5-6.

75Upgrades to the on-site LTF are necessary to increase the processing capacity, which has a direct impact on GFL’s ability to lower the leachate levels. Those upgrades were planned and had been discussed with the MECP for the past few years. However, the upgrades need to be approved, constructed, commissioned and operated for some time before they can assist in lowering the leachate levels. These processes of approval, construction, commissioning and operation will take years.

76There is a risk that GFL will need to stop service if Stage 5 cannot be utilized since the permitted capacity at the Moose Creek Landfill and the capacity in Stage 4 will likely be reached in Q2 or Q3 of 2025. The amended sewage ECA is needed in the first half of 2025 to avoid a stop service, proceed with the LTF upgrades in a phased approach, and comply with other conditions of GFL’s ECA. The Landfill is significant for Eastern Ontario and all of Ontario.

77There is a lack of disposal capacity in Ontario. An Emergency ECA was issued in 2022 by the MECP to GFL to permit an increase to the annual limit on processing, and annual capacity was slightly exceeded in 2023.

78GFL recently made a request to the MECP to processing more leachate on-site, which would assist in reducing leachate levels.

79In cross examination, Mr. Laliberte admitted that the LTF will take about two years to upgrade assuming the sewage ECA is approved in spring of 2025. Balancing the leachate level will take time. He believed that Stages 1 to 4 exceeded the 1.5 metres trigger level. Mr. Laliberte stated that without the LTF upgrade, it is impossible to lower the leachate level lower that the 1.5 metres trigger limit.

Larry Fedec

80Larry Fedec was qualified to give expert opinion evidence in the environmental assessment process. He was the lead consultant in Stages 3B/4 and 5-8 environmental assessment processes for the Moose Creek Landfill, and has a comprehensive understanding of the EA and ECA processes and the needs of waste management facilities in the Province of Ontario

81Two separate Comprehensive EAs have been undertaken and approved for the Landfill since 2015.

82During the preparation of both EAs, the broad definition of the environment, consistent with the EAA, was considered when assessing the potential effects of the expansions. Specific issues raised by reviewers and the community during the EA processes were largely related to air quality (odour), groundwater quality, surface water quality and traffic.

83For each EA, a Conceptual Design Report (“CDR”) was prepared to outline and describe the facility characteristics and operations of the Landfill expansion alternatives being assessed. The CDR provided details to enable the environmental disciplines to assess the potential environmental effects of the alternatives to allow for a comparative evaluation. The CDR included details on the Moose Creek Landfill design and geometry, estimated leachate generation for the purpose of leachate management, landfill gas generation and management, and stormwater management, amongst other technical details.

84As part of preparing the EAs, the existing environment conditions were documented and the effects of the expansion on the environment were assessed, including groundwater (quality and quantity), surface water (quality and quantity), air (air quality, noise, odour), ecology (terrestrial and aquatic), socioeconomic, cultural heritage, archaeology, transportation, land use, and agriculture. The CDR provided the facility characteristics for each environmental discipline to consider relative to the existing environment and predict potential effects of the expansion. The design and approach to leachate management identified was consistent with the existing approved Moose Creek Landfill given that no substantial changes to operations were anticipated.

85In the EA, for Stages 5 – 8, the Geology and Hydrogeology Effects Assessment Report prepared by Terrapex considered potential effects of the expansion and considered the leachate generation estimates provided in the CDR prepared by HDR Corporation, and assumed a static height of leachate 1.5 metres above the base of the Moose Creek Landfill, consistent with the then current Landfill operation.

86The MECP undertook a review of the draft EA. The existing conditions reports, a draft EA report including effects assessment reports and CDR, and the Final EA were circulated broadly to agencies, Indigenous communities and the public for review and comments.

87The MECP provided detailed review comments on the draft EA including on the CDR and the Geology and Hydrogeology Effects Assessment by Terrapex. Comments provided by the MECP related to leachate generation estimates and management. No comments were provided by the MECP or other reviewers with respect to the height of leachate on the landfill liner.

88Further comments were provided by the MECP during the review of the Final EA. No comments were provided related to landfill design or leachate management.

89The assessment of potential effects on the environment assumed a 1.5 metres reference height of leachate on the base of the Moose Creek Landfill, consistent with current operations. No resulting detrimental effects on the environment were identified.

90In Mr. Fedec’s opinion, decreasing the reference height would result in a fundamental change to the current approach to leachate management and is inconsistent with the approved EA.

91Further, the on-site LTF and management approach are in the process of being adjusted and upgraded to address processing capacity and to improve effluent quality. In Mr. Fedec’s opinion, the ability of GFL to treat additional volumes of leachate is not available until the LTF has been upgraded.

92Based on the limited availability of additional leachate treatment capacity on-site, decreasing the leachate head will unnecessarily require leachate volumes to be treated off-site. This would involve additional trucking and traffic volumes, which were not considered as part of the transportation assessment during the EA. Comments and concerns were raised by the community about traffic safety at Lafleche Road and Highway 138 during the EA and additional traffic volumes have the potential to heighten these concerns.

93The Moose Creek Landfill serves as a regional facility, serving an extensive number of communities and businesses across Eastern Ontario. The Landfill receives 755,000 tonnes of waste annually and other options within the region are limited. Private landfills typically operate at their annual capacity.

94Municipal disposal capacity continues to decrease across Ontario and larger regional landfills are responsible for the majority of disposal capacity in the Province of Ontario.

95Over three million tonnes of waste move across the border from Ontario into the US annually. The majority of this waste is disposed in Michigan with access to capacity in New York more limited. Moving waste from Eastern Ontario to Michigan poses significant cost and risk to waste generators.

96Mr. Fedec’s view is that the 0.5 metres restriction is unjustified.

97Under cross examination, Mr. Fedec did not know how much leachate will be generated in Stages 5 and 6. He agreed that the LTF upgrade will require two years and the commissioning of upgraded operations, may take another two years.

Greg Van Loenen

98Mr. Van Loenen gave factual evidence as the Environmental Compliance Officer in the Appellant.

99Mr. Van Loenen testified that the MECP has been inconsistent with respect to its consideration of the leachate level.

100In June 2019, prior to the issuance of the above ECA, the MECP sent an email to GFL that stated the discharge of treated effluent during the low flow season (May 15 – Oct 31) must be discontinued immediately, until specific parameters of concern adhere to the aquatic protection values stipulated in PWQO/CWQG/CCME.

101The MECP imposed this requirement despite the facility operating within compliance of the governing ECAs, having acute toxicity analysis demonstrating 10% mortality, and having biennial biological assessment reports since 2006 for Moose Creek, demonstrating no adverse effect from treated effluent discharge from the facility. The effect of this decree from the MECP was that the facility had to hold raw leachate within the Moose Creek Landfill instead of treating and safely discharging effluent, and treated effluent nitrate values were expected to be lowered to 3 mg/L from values greater than 200 mg/L.

102Low flow season discharge requirements continue to be imposed on-site, and the net effect was more raw leachate storage within the Moose Creek Landfill than otherwise would have been the case. Acute and chronic toxicity results, as well as subsequent biological monitoring studies, continued to demonstrate no adverse effect to Moose Creek.

103In June 2019, work began on the preparation of the EA Landfill expansion project for Stages 5-8. The external project management consultant was Larry Fedec and, through him, numerous subconsultants were retained. Mr. Van Loenen served as the GFL lead on the project and was heavily involved. The EA stated that an average leachate head of 1.5 metres was assumed for hydrogeological modelling, and no off-site adverse effects were expected. The Stage 5-8 EA was approved in March 2024.

104The MECP did not raise any concerns with the 1.5 metres average leachate head proposed in the EA.

105The ECA amendment application for landfill expansion into Stages 5 and 6 was submitted in October 2023, and included a D & O Report that stated compliance trigger values for leachate elevation would be 1.5 metres average across the drainage blanket and 2.0 metres maximum at any given location. This was consistent with every preceding D & O Report for the site for the past 24 years, since 1999.

Dr. Frank Barone

106Dr. Barone is the Waste System Design Landfill and Environmental Assessment Expert called by the Appellant. The Tribunal qualified him in his area of specialization to give expert opinion in waste engineering design including waste containment design, performance assessment monitoring and modelling, contaminant transport modelling, landfill liner and leachate collection design.

107Dr. Barone stated that he was part of the team at Golder Associates that undertook engineering design work for Stages 1 to 3A of the Moose Creek Landfill, including preparation of the Design and Operations Plan and contaminant transport modelling. As such, Dr. Barone was very familiar with the hydrogeological conditions at the site at which the Landfill is located.

108Dr. Barone emphasized that the Landfill base is situated on a thick, low permeability clay deposit. The clay deposit is underlain by a sandy gravel till layer followed by fractured limestone bedrock, which together represent the underlying aquifer unit for which long-term groundwater quality impacts from the Landfill need to comply with the Reasonable Use Guideline B-7, which addresses groundwater quality at the property boundary.

109Based on his extensive involvement in the original engineering design work for the Landfill, it is his opinion that the hydrogeological conditions at the Site are such that the naturally high groundwater pressures in the aquifer unit, combined with the low permeability of the clay deposit, minimize the rate of downward contaminant migration during the operational period of the leachate collection system. These unique hydrogeological conditions are consistent throughout the Site, including around the proposed lateral expansion Stages 5 and 6.

110Dr. Barone said he was provided with, reviewed, and considered the contaminant transport modelling for Stages 3B/4 presented in the Geology and Hydrogeology Assessment Report prepared by Tetra Tech dated May 25, 2018 (Exhibit 6 - Appellant’s Book of Documents -Tab 7). The modelling considered a 1.5 metres average leachate head relative to the average landfill base elevation. The predicted concentrations in the underlying aquifer comply with the Reasonable Use Guideline B-7.

111Dr. Barone was provided with and reviewed, as well as considered the contaminant transport modelling for Stages 5-8 presented in the Geology and Hydrogeology Assessment Report prepared by Terrapex dated October 7, 2022 (Exhibit 6 - Appellant’s Book of Documents Tab 8). The modelling in the Terrapex Report considered an average elevation of 64.0 metres above sea level (“masl”) for the landfill base (i.e., top of the clay aquitard), and an average leachate level elevation at 65.5 masl (i.e. 1.5 m average leachate head relative to the average landfill base elevation of 64.0 masl) during the operating period of the leachate collection system. The average piezometric level in the aquifer was taken as 65.5 masl based on groundwater level monitoring data. The results of the modelling support the conclusion that Stages 5-8 will comply with Reasonable Use Guideline B-7. Dr. Barone carefully reviewed and considered the Terrapex Report, and he concurs with the approach and findings of the contaminant transport modelling.

112The leachate level monitoring locations for Stages 5 and 6 are at the terminus (i.e., low point) of the perforated lateral leachate collection pipes (i.e., at the margin of the waste fill area) where the landfill base elevation is at 63 masl, in accordance with the supporting design in the Design and Operations Report prepared by Tetra Tech, June 13, 2024 (Exhibit 6 -Appellant’s Book of Documents- Tab 10). The proposed leachate head trigger levels are 1.5 metres average amongst the monitoring locations and 2.0 metres maximum at any given monitoring location. These trigger levels correspond to average and maximum leachate level elevations throughout the basal leachate drainage layer of 64.5 masl and 65.0 masl, respectively, which are lower than the average piezometric level of 65.5 masl in the underlying aquifer. The proposed trigger levels will therefore ensure negligible downward hydraulic gradients and hence negligible leachate flow towards the aquifer unit during operation of the leachate collection system.

113Based on the foregoing, it is Dr. Barone’s opinion that the leachate head trigger levels of 1.5 metres average and 2.0 metres maximum at the leachate level monitoring locations are entirely appropriate for Stages 5 and 6 given the site-specific hydrogeological conditions. There is no technical justification for imposing a more stringent leachate head trigger requirement as the MECP has done in ECA No. A420018.

114During cross examination, Dr. Barone stated that he was only involved in the 1998 design and not the Stage 5 design. He has not visited the site recently, but opined that operating on 1.5 metres of waste will not affect the leachate once the full cells are covered with membranes. Dr. Barone stated that the focus should be on the upgrade and not the leachate level. His view was that for the landfill site, the trigger level is 1.5 metres for the long term. Further, Dr. Barone conceded that there is no benefit in leaving the leachate in the landfill cells.

115Dr. Barone in cross examination, stated that the modelling looks at 1.5 metres, not 2.0 metres which is the outlier. He confirmed that the modelling does not use a quadrant of the site (e.g. the very low location), but the whole footprint of the site, therefore, the average value of the site, in this case, the groundwater level over the whole site is 65.5 masl.

116Dr. Barone agreed that it is reasonable to have trigger levels in the ECA if relying on hydraulic traps. He explained that a landfill design based on hydraulic traps has the leachate level lower than or at the groundwater level. The Moose Creek Landfill design has the foundational design principle that the liner (the clay base) is the natural liner. The hydraulic trap is maintained at the groundwater level or below it.

117Dr. Barone opined that Schedule 1 (Service Lives - Primary Leachate Collection Systems), section 1.s. 9 does not have a time frame to remove leachate. Dr. Barone noted that removal is to avoid stagnation and maintain flow though he concedes that leachate must be removed.

Submissions of the Director

118The Director submits that the appropriate maximum leachate level for Stages 5 and 6 is 1.5 metres as measured at the cleanouts or under 64.5 masl, whichever is lower. This will maintain the hydraulic trap, which is the foundational premise upon which the site-specific design of the landfill was approved and maintain a maximum leachate head of approximately 0.5 metres above the average base clay surface.

119The Director submits that the Tribunal should amend Condition 36.6 as follows to reflect the fact that GFL measures leachate levels at the cleanouts and to make the condition clearer and more enforceable:

The owner shall ensure that the collected leachate is promptly removed from each landfill cell as required by Reg 232. Under normal conditions (excluding storm events and spring snow melt), the leachate level within each landfill cell in Stages 5 and 6 shall be kept at less than 1.5 metres over the landfill base clay surface as measured at any cleanout or under 64.5 masl, whichever is lower.

120In addition, a definition of “cleanout” should be added to the Waste ECA for clarity: “cleanout” means the 200 millimeter diameter HDPE pipe riser that connects to each leachate collection pipe and extends above ground surface, for inspection and cleaning access to the leachate collection pipe (“cleanout”).

121With respect to timing, the Director stated that Condition 36.6 came into effect immediately upon issuance of the Waste ECA and there is no supportable rationale for delaying the effective date of this condition. While GFL may be currently facing operational constraints with respect to the volume of effluent that can be discharged from its onsite LTF, it is also required to have contingency plans in place for offsite disposal of leachate and effluent. It is appropriate for GFL to make use of its contingency measures until upgrades to the LTF are complete.

122Rather than deploy contingency plans in the last several years to respond to limits on effluent discharge, GFL has instead chosen to store excess leachate and effluent onsite. As a result, leachate levels have consistently exceeded the Site’s “trigger levels” over the past several years without consequence or resulting action by GFL. These exceedances underscore the need to impose a leachate level limit in the Waste ECA for the protection of the natural environment.

123The MECP stated that the evidence of the two landfill engineering experts was not fundamentally different with respect to the appropriate maximum leachate levels for Stages 5 and 6. Both Mr. Li and Dr. Barone agreed that the design of this landfill is premised on the maintenance of a hydraulic trap. This means that leachate levels must be kept at or below groundwater levels to maintain hydraulic containment, and reduce contaminant migration into groundwater. To maintain the hydraulic trap, leachate must be removed from the landfill cells via the leachate collection system.

124MECP maintained that while the modelling examined the leachate level over the landfill base, maximum leachate levels apply to the cleanouts. Mr. Li confirmed in his oral testimony that, if measured from the cleanouts, a maximum leachate head of 1.5 metres is appropriate and would maintain hydraulic containment in Stages 5 and 6. This is because the cleanouts are located at approximately 63 masl or approximately 1 m below the average clay base surface of 64 masl for Stages 5 and 6. This would ensure that leachate levels remain at or under 64.5 masl. The groundwater level in Stage 5 and the northern portion of Stage 6 is around 64.7 masl.

125To maintain hydraulic containment, leachate levels should therefore be kept at or below 64.5 masl. Mr. Li was asked in cross-examination about Figures 5-E, 6-4 and 6-B. In closing submissions, GFL’s counsel suggested these were not cleanout elevations. However, Figures 5-E and 6-B, specifically show cleanouts, and the elevations Mr. Li referenced were those at the bottom of the cleanouts. A maximum level of 1.5 metres at the cleanouts is also consistent with Mr. Li’s recommendation that leachate levels remain under 0.5 metres across the landfill base.

126The Director submits a maximum leachate head of 2 metres is not protective of the environment nor consistent with a precautionary approach for the following reasons:

• The focus of Dr. Barone’s evidence was on a 1.5 metres leachate head and he confirmed in cross-examination that there was no science behind the 2 metres and it was only intended to capture outliers.

• If leachate levels reach 2 metres at the cleanouts in the northern portion of the Site, this would exceed groundwater levels and defeat the hydraulic trap.

• These trigger levels were developed for Stages 1-3A, where the base elevation is similar to Stages 5 and 6 but groundwater levels are higher.

127Dr. Barone testified that in the event leachate levels exceed 1.5 metres, impacts to the environment will be very slow. The Director submits that it is inconsistent for Dr. Barone to suggest that the maintenance of the hydraulic trap is fundamental to the design of the landfill and recommend a maximum leachate level that would be contrary to this principle. In any event, even if the effects are slow, a precautionary science-based approach calls for maintaining the leachate levels under the groundwater levels to maintain hydraulic containment. For this reason, Mr. Li’s evidence on this point should be preferred.

128A conservative maximum leachate level is also consistent with Ontario Regulation 232/98: Landfilling Sites (“O. Reg. 232/98”).

129GFL's modelling assumed the leachate collection system would have a 100-year service life in accordance with Schedule 1 (Service Lives - Primary Leachate Collection Systems). Therefore, the requirements of this schedule must be followed. Section 1, s. 9 requires that leachate be “removed from the collection system in order to avoid obstructions to leachate flows within the system.”

130The experts disagreed on how this provision should be interpreted. Mr. Li interpreted section 1, s. 9 as requiring leachate removal so that levels are kept at or below the thickness of the collection blanket (in this case 0.5 metres) to ensure a 100-year service life and to avoid clogging.

131Dr. Barone did not agree that section 1, s. 9 required leachate removal, as leachate levels were not a factor in the service life calculations that went into the development of the regulation. Instead, he opined the provision was concerned with maintaining leachate flow so that it does not stagnate.

132GFL suggested that Condition 36.6 should be removed from the ECA, and that the “trigger levels” in the D & O Report are adequate. The Director submits that the maximum leachate levels should remain in the ECA.

133It has become clear that more is needed to maintain appropriate leachate levels on Site. The 2023 Annual Monitoring Report (“AMR”) (Exhibit 14- table 22(b)) landfill leachate data (2019-2023) demonstrate GFL has been regularly exceeding a 1.5 metres leachate level in Stages 1-4 for the last several years, contrary to the trigger levels set out within the D & O Reports for the Site.

134GFL does not see these trigger levels as enforceable limits. A maximum leachate limit in the ECA will provide both the proponent and the Ministry with needed clarity on what the expectations are with respect to leachate levels. In addition, GFL’s current monitoring and reporting practices confirm the need to ensure that the maximum leachate level applies to all cleanouts within each Stage.

135Condition 36.6 came into effect when the amended Waste ECA was issued on May 15, 2024, and has not been stayed. The Director submits that Condition 36.6 should remain in effect (subject to the Director’s proposed amendments) and apply to Stages 5 and 6 as soon as landfilling begins in these stages. The evidence establishes the need for a leachate limit in the Waste ECA. There is no supportable rationale for delaying the effective date of Condition 36.6.

Submissions of the Appellant

136The Appellant submits that after over 20 years of operation and without any concern, event or problem prompting it, the Director inserted a new Condition 36.6 in the ECA.

137Previously, there was a “trigger leachate level” in the D & O Report, which provided for a 1.5 metres average and 2.0 metres maximum leachate level across the surface of the clay base. These trigger levels have been in place for Stages 1-4 since the Moose Creek Landfill began operations. The three-fold reduction from a trigger value in the D & O Report to a compliance limit in the ECA has significant consequences to GFL and its operations, and the essential services it provides in Eastern Ontario and the entire Province.

138During closing submissions, the Director, without notice, proposed to amend the Condition 36.6 that he had inserted in the ECA and replace it with an even more stringent condition.

139It is submitted that the Tribunal ought to reject the Director’s last-minute version of the Condition for two reasons. First, like the Condition that is the subject of this appeal, it is not grounded in science and exceeds the Director’s jurisdiction and second, the principles of procedural fairness require the Director to advance any alternative positions during the Hearing through its own witnesses, giving GFL the opportunity to cross-examine and present its own evidence, and the Tribunal an opportunity to hear evidence on the revised wording for the Condition.

140It is GFL’s submission that the Director, without scientific justification or basis, has exceeded his jurisdiction in imposing the Condition.

141The Director explained that the basis for the Condition was to take it “one level higher”. The Director cannot impose arbitrary conditions in this manner. His actions must be consistent with the legislation, policies, and guidelines of the Ministry and its Statement of Environmental Values.

142It is GFL’s position that: (i) there is no need for any condition in the ECA with respect to leachate levels and the Condition should therefore be removed, and the provision that was in the D & O Report (prior to the Condition being imposed), be reinstated; or (ii) in the alternative, the provision in the D & O Report which was established for the Moose Creek Landfill based on detailed work conducted by design engineers and approved by the Ministry (and which sets a trigger average leachate level of 1.5 metres measured from the clay base, should be the condition in the ECA).

143The O. Reg. 232/98 contains the requirements for landfills in Ontario and permits landfills to be designed based on (i) a generic approach or (ii) a site-specific approach that considers the particular site setting including the local hydrogeology. Moose Creek Landfill is based on a site-specific design approach. That means that extensive and comprehensive studies, analysis, and modelling were conducted by professional and independent landfill design engineers and other experts to determine how the landfill should be designed and operated.

144Contaminant transport modelling was conducted that considered the fact that the landfill base is situated in a favourable thick low permeability clay deposit. Hydrogeological conditions are such that, combined with the naturally high groundwater pressures in the aquifer unit, the rate of downward contaminant migration is minimized during the operational period and beyond the 100-year service life of the leachate collection system, which these unique Hydrogeological conditions are consistent throughout the Moose Creek Landfill including in the areas of Stages 5 and 6.

145All the studies, modelling, and subsequent designs were subjected to detailed and intensive scrutiny and review. First, creation and/or expansion of a landfill requires an EA approval whereby numerous agencies have an opportunity to comment on detailed studies conducted on various facets of the landfill’s existing and/or proposed operations, including hydrogeological studies and modelling. This process requires that the proponent address all agencies’ comments to their satisfaction before the EA approval is granted. Moose Creek Landfill received EA approval for Stages 1-3A in 1999, Stages 3B/4 in 2019, and Stages 5-8 in March of 2024.

146Once the EA is approved, the process requires a further rigorous review in connection with the various permits required for the landfill. Specifically, a Waste ECA is required, as well as other permits for discharge or treatment facilities. The issuance of the Waste ECA and any amendments are subject to rigorous review and comment from various branches of the Ministry that look at all facets of design and operations. Moose Creek Landfill has a Waste ECA, which has been in place for 25 years and that has been amended periodically to address changes and expansions.

147The Moose Creek Landfill has been operating for some 25 years and relying on a site-specific design for leachate containment that will be effective for hundreds of years and was accepted by the Director as being protective of the environment. That suddenly changed during the 2024 ECA review process for further expansion of the landfill (Stages 5 and 6).

148The trigger leachate levels, established by expert landfill design engineers, one of whom was Dr. Barone, are intended to maintain what is called a hydraulic trap design. Put simply, the design is based on leachate levels within the cells being lower than the surrounding groundwater to promote the inward flow of groundwater, thereby minimizing downward and outward migration of landfill leachate during the operational period of the leachate collection system.

149The trigger leachate levels were conservatively established as being 1.5 metres on average above the clay surface with a maximum value of 2.0 metres at any given location. These trigger levels have been in place since the landfill was first opened, maintain the hydraulic trap, and are compliant with Reasonable Use Guideline B-7 (published by the Ministry to ensure protection of groundwater). Indeed, there has been no impact to groundwater or the environment, nor evidence of any concerns or threats to groundwater, as demonstrated by regular and robust compliance monitoring at the Moose Creek Landfill.

150It is GFL’s submission that there is no scientific rationale that would support the inclusion of the Condition 36.6 in the ECA (or any other version of the condition), other than one that is consistent with the longstanding trigger levels found in the D & O Report (2024, and earlier versions dated 2019, 2009 and 1999) and that have been applied to Moose Creek Landfill for the past 25 years.

Analysis and Findings

151The Appeal is a new hearing pursuant to s. 145.2(1) of the EPA. The Tribunal considers the purpose of the EPA to decide whether it should confirm, alter, or revoke Condition 36.6 of the Amended ECA.

152Condition 36.6 of the ECA addresses the important matter of the leachate level at the Moose Creek landfill governed by an ECA.

153The Moose Creek landfill collection system is assumed to have a 100-year service life if it fulfills several conditions of the EPA Schedule 1., one of which, section 1 s.9, was reviewed at the hearing. It reads:

“Leachate must be removed from the collection system in order to avoid obstructions to leachate flows within the system.”

154The contention of the MECP being that the accumulation of leachate in the collection system must be removed from the collection system to avoid obstruction, so that the functionality and service life of the collection system is maintained. Obstruction within the system will increase the risk of contaminant migration to groundwater.

155Hence the introduction of the 0.5 metres leachate level limit above the clay surface of the leachate collection system by MECP.

156It is noted that this came about through the recommendation of Mr. Li, the MECP waste engineer accepted by the Director after his review.

157Mr. Li came to his conclusion by making comparisons of provincial jurisdictions, British Columbia (“BC”) and Alberta; United States (“US”); some other waste collection facilities in Ontario, and a published paper by Rowe et.al.

158From this limited research, he deduced the 0.5 metres leachate level as the appropriate leachate level at the Moose Creek facility. Mr. Li’s observations may have been skewed by not differentiating generic from site specific modelling and by the fact that the US waste facilities modelling at 0.3 metres level is generic (not site specific); while the other GFL’s facility at Stoney Creek, is a site specific facility where the 0.5 metres level was supported by the modelling at that site. Alberta’s and BC’s and the published paper’s 0.3-0.5 metres level may be regarded informationally, but ultimately the leachate level for a particular site and facility is based on the modelling that supports the site specific characteristics where the collection system is to be designed constructed and operated.

159The landfill at Moose Creek is a major facility servicing Eastern Ontario. The Moose Creek landfill has operated since 1999. Stage 4 nears completion, which leaves stages 5 to 8 as future expansion.

160The LTF has obtained prior Sewage Works ECA and the landfill, this amended waste ECA (which Condition 36.6 is the subject of appeal). The waste ECA applies to Stage 5 and 6.

161The Director insists that the new 0.5 metres level requirement is necessary and prudent “to go one level higher” (Mr. Keyvani stated in testimony) despite having reviewed the supporting studies provided with the Stage 5/6 Waste ECA application. This is to maintain the functionality of the leachate collection system and ensure it meets the service life as per O. Reg. 232/98, prevent contaminant migration to groundwater and minimize odour from elevated leachate. The Tribunal finds the rationale being, if the leachate was allowed to accumulate to a high level, there is a potential risk that the collection system will be obstructed which will then lead to collection system functionality dysfunction. The Tribunal will use the shorthand “dysfunction”.

162Counsel for the MECP did extract in cross examination of Mr. Van Loenen, that in the GFL’s operation of Stages 1 to 4, there were occasions where the leachate levels recorded exceedances of 2 metres to 4 metres. The 2023 Annual Monitoring Report shows GFL regularly exceeding a 1.5 metres leachate level in Stages 1-4 for the several years contrary to the trigger levels set out within the D & O Report.

163The Tribunal notes that, despite these incidences of exceedances, there is no evidence presented that the Appellant took steps to address the exceedances above the leachate level that breached the D & O Report levels described within the report of average 1.5 metres above clay surface and 2.0 metres maximum at any location.

164The Director did allude to the number of bad odour complaints received of the Moose Creek landfill site and of GFL’s other landfill site at Stoney Creek had factored into his decision to limit the height of leachate head to be permitted at the Moose Creek landfill site.

165Counsel for the Appellant in cross examination obtained admissions from Ms. Legue that the odour complaints from the public were no more than once a year in 2023 and 2024. Further, the Tribunal finds that Ms. Legue’s anecdotal evidence of pictures and videos taken on her visits to the site was clarified as a normal consequence of the first lift for the waste being deposited in a landfill cell. Mr. Van Loenen, GFL’s ECA compliance officer explained that at the first lift in the Stage 4 cell, the cell surface was not completely covered thus leachate was visible. The tanker trucks will rinse out equipment at the cell and contribute to water ponding at the cell. Once the Stage 4 cell was filled in, odour will be minimized. The Tribunal notes that no evidence was presented to the Tribunal on odour complaints by way of witnesses or complaints reports.

166Mr. Fedec stated that the waste landfill at Moose Creek is a significant facility. The Moose Creek Landfill serves as a regional facility, serving an extensive number of communities and businesses across Eastern Ontario. The Tribunal finds that the province can ill afford to have this waste and sewage facility stopping service. Mr. Laliberte opined that the risk of stopping service is imminent with the imposition of 0.5 metres leachate level at this facility. There is a risk that GFL will need to stop service if Stage 5 cannot be utilized since the permitted capacity at the Landfill and the capacity in Stage 4 will likely be reached in Q2 or Q3 of 2025.

167Stoppage at the Moose Creek facility will lead to increased environmental pollution with the need to truck waste from the facility to be treated at another municipal facility with a round trip of 95 km, GFL’s Mr. Richmond stated. Mr. Fedec added that the province lacks sufficient waste disposal capacity in that some Ontario wastes are trucked, and treated down south in Michigan in the US. Any reduction of waste treatment facility will compound the problem of waste disposal and lead to environmental and public concerns.

Leachate Level

168Dr. Barone for the Appellant testified that modelling for Stages 5 to 8 by Terrapex (October 7, 2022) considered an average elevation of 64 masl for the landfill base (top of the clay aquitard) and an average leachate level elevation at 65.5 masl (64 metres + 1.5 metres average leachate level).

169The average piezometric level in the aquifer was taken as 65.5 masl based on groundwater monitoring data. Dr. Barone opined that the result of modelling supports the conclusion that Stages 5 to 8 will comply with the Reasonable Use Guidelines B-7 issued by the Ministry.

170Dr. Barone notes that leachate level monitoring locations for Stages 5 and 6 are at the low points of the leachate collection pipes where the landfill base elevation is at 63 masl (Design and Operation Report -Tetra Tech June 2024). The proposed leachate head trigger levels are 1.5 metres among the monitoring locations and 2.0 metres maximum at any given monitoring station. These trigger levels correspond to average and maximum leachate level elevations throughout the basal leachate drainage layer of 64.5 masl (63m + 1.5m) and 65masl (63m + 2m) respectively, which are lower than the average piezometric level of 65.5 masl in the underlying aquifer.

171The Tribunal acknowledges that the design and modelling for the collection system is based on the Hydraulic Trap system, where the system is maintained by the modelling when the leachate head elevation is lower than or at the piezometric level of the groundwater level of the aquifer, in this case, 65.5 masl.

172Mr. Li, MECP’s waste engineer concurs with the trigger levels as taken at the cleanout locations at 63 masl where he opined that 1.5 metres leachate elevation above that or 64.5 masl leachate elevation is acceptable to the MECP.

173The Tribunal is persuaded by Dr. Barone’s opinion evidence that the site specific characteristics and the modelling studies done support a site specific leachate head at this site. With an appropriate leachate level, the Hydraulic Trap system is maintained.

174The Tribunal is persuaded by and agrees with Dr. Barone that the leachate level is measured from the silt clay base of the cells and not at the cleanout monitoring locations. The foundational principle is based on the natural clay liner and the measured value is taken based on the footprint of the whole site and not just at a quadrant of the site. The modelling for Stages 5 to 8 considered an elevation of 64.0 masl for the landfill base and an elevation above the clay aquitard at 65.5 masl. Further, the average piezometric level in the aquifer was taken as 65.5 masl based on the groundwater monitoring data. The result of modelling suggests that Stages 5 to 8 will comply with the reasonable use guidelines B-7. The reasonable use guidelines quantify potential impacts on groundwater by leachate and guidelines B-7 addresses the levels of offsite leachate impact on groundwater considered acceptable by the Ministry, and defines the level of impact on groundwater beyond, which some form of mitigation measures would be justified.

175The Tribunal, however, disagrees that the leachate level should be allowed to float at the average 1.5 metres and 2.0 metres, as set out in the D & O Report. The evidence proffered shows that Stages 1 to 4 based on the D & O Report’s trigger levels led to exceedances that were not addressed by the Appellant. (see: Exhibit 14 -GFL 2023 Annual Monitoring report).

176The Tribunal acknowledges that the science and the modelling support a higher leachate level than 0.5 metres, at the Moose Creek Landfill. This comes in the form of the studies and modelling and D & O Report in support of Stages 5 and 6.

177Nevertheless, the Director has reviewed these supporting documents and, in his review, reasonably concluded that there should be a leachate level limit, for Stages 5 and 6. The determination of 0.5 metres was made at the time. The Tribunal having the benefit of the evidence presented is of the opinion that fixing a limit of leachate level will allow the Appellant to undertake more stringent operations in compliance with the EPA purpose, and the MECP to be able to assess GFL’s compliance with the ECA conditions.

178The Tribunal notes that GFL’s 2023 AMR (Exhibit 14 - Annual Monitoring report) reported that the average 1.5 metres head above the clay base, and maximum leachate head level of 2.0 metres at any location as set out in the D & O Report were exceeded in Stages 1, 2 and 3 during 2023 (levels of 2 metres to 3.5 metres) monitoring events and in Stage 4 (level at 4.13 metres), during the July monitoring event. This is demonstrated in Exhibit 14-Table 22(b)- Landfill leachate level data (2019 – 2023) where exceedances of leachate head above the clay base are described.

179The Tribunal finds that these exceedances breach the average and maximum levels provided in the D & O Report. Further, this is not in compliance with O. Reg 232/98, which requires removal of leachate to avoid obstruction and maintain functionality and service life of the collection system.

180With high leachate levels, the risk of clogging by sediments and other biological and chemical materials increases, according to Mr. Li. Once clogging occurs, it will be hard to fix since localized obstruction in the collection system will not be easily pinpointed. Hence the importance of taking measures to alleviate leachate mounding at the cells.

Application of s.3 and s.145(2) of the EPA

181The Tribunal finds that the purpose of EPA is to provide for the protection and conservation of the natural environment. R.S.O. 1990, c. E.19, s. 3.

182The Tribunal considers the purpose to protect and conserve the natural environment. This will include the potential risk of exceedances being left in the collection cells leading to obstruction and clogging of the collection system. Thus, the requirement to remove the waste when it reaches a maximum leachate head. The Tribunal is also mindful of the province’s need of waste landfill facilities such as the Moose Creek facility. Stoppage of service, even temporarily, may result in more trucking of waste to other waste facilities, causing pollution and public health issues with the lack of waste disposal capability in the province.

183The powers of Tribunal is under 145.2 (1) of the EPA: Subject to sections 145.3 and 145.4, a hearing by the Tribunal under this Part shall be a new hearing and the Tribunal may confirm, alter or revoke the action of the Director that is the subject-matter of the hearing and may by order direct the Director to take such action as the Tribunal considers the Director should take in accordance with this Act and the regulations, and, for such purposes, the Tribunal may substitute its opinion for that of the Director.

184The Tribunal finds that the condition to be implemented should be considered and priority must be placed on ensuring that the leachate level at a site addresses the specific characteristics of the site’s location, and achieves the environmental protection purpose of the EPA.

185In this case, the condition addresses the leachate elevation at the Moose Creek Landfill, which is vital for the operations at this location to meet the EPA purpose. The Tribunal must consider the environmental effects on the underlying aquifer and ensure that specific approval conditions are in place that align with the EPA purpose. On Appeal, the Tribunal may impose conditions to achieve the legislative purpose.

186Considering the EPA’s environmental protection purpose and the need to avoid adverse effects, the Tribunal finds that the addition of Condition 36.6 is appropriate. Additionally, the Tribunal, will alter the condition to reflect a new leachate level to enable continued monitored operations at the landfill site.

187The Tribunal is persuaded by Dr. Barone that the science supports the trigger levels by the modelling at the Stages 5 and 6 for the hydraulic trap leachate collection system. Nonetheless, the Tribunal will specify the leachate head at less than 1.5 metres above the clay base despite Schedule 1. s. 9 not describing the level that is required for avoiding an obstruction to the collection system.

188The Tribunal finds that reading Condition 36.6 in the entire context of the ECA and the legal framework in the EPA, Condition 36.6 of the ECA regulates the leachate level to avoid dysfunction of the collection system and the risk of contaminant migration to groundwater.

189The Tribunal agrees with the Appellant and finds that the leachate level of 0.5 metres should be amended to allow a higher leachate elevation at the Site. The Tribunal’s jurisdiction is restricted to the Director’s immediate decision. The immediate decision here involved the condition requiring a leachate level at the collection cells.

190The Tribunal finds that the amendment requiring leachate level to be limited to 1.5 metres above the clay base clarifies the language in Condition 36.6. In the alternative, the Tribunal finds that the new limit at this site is an improvement and will better attain the environmental protection objectives. The Tribunal confirms the alteration to condition 36.6.

Conclusion

191Pursuant to s. 145.2 of the EPA, the Tribunal may confirm, alter, or revoke the “action” of the Director that is the subject-matter of the hearing, and may by order direct the Director to take such action, as the Tribunal considers the Director should take in accordance with this Act and the regulations, and for such purposes, the Tribunal may “substitute its opinion” for that of the Director. The Tribunal has conducted a Hearing, altered the Condition 36.6 and provided its opinion for doing so.

192Based on the evidence, the submissions and the purpose of the EPA, the Tribunal alters condition 36.6 of the Amended ECA.

The Owner shall ensure that the collected leachate is promptly removed from each landfill cell as required by Ontario Reg 232/98. Under normal conditions (except during storm events and spring snow melts), the leachate level within each landfill cell in Stages 5 and 6 shall be kept at less than 1.5 metres over the landfill base clay surface.

DECISION

193The Appeal is allowed in part and the Amended Environmental Compliance Approval No. A 420018 is altered as follows:

• Condition 36.6 – The owner shall ensure that the collected leachate is promptly removed from each landfill cell as required by Ontario Regulation 232/98. Under normal conditions (except during storm events and spring snowmelts), the leachate level within each landfill cell in stages 5 and 6 shall be kept at less than 1.5 metres over the landfill base clay surface.

“T.F. Ng”

T.F. NG 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.