Adelaide Metcalfe (Township) v. Director, MECP, 2026 CanLII 35713

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 14, 2026

CASE NO(S).: OLT-26-000117

PROCEEDING COMMENCED UNDER section 38 of the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended

Applicant: The Township of Adelaide Metcalfe

Instrument Holder: LaSalle Agri Inc.

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

Subject of leave to appeal: Decision to issue an Environmental Compliance Approval pursuant to section 20.3 of Part II.1 of the Environmental Protection Act., 1990, c. E. 19, as amended, for the construction of Stormwater Management Works serving the operation of the fertilizer storage facility

Reference No.: 8756-DAXLAS

Property Address: 25700 Kerwood Road

Municipality/ Upper Tier: Adelaide Metcalfe/Middlesex

OLT Case No.: OLT-26-000117

OLT Lead Case No.: OLT-26-000117

OLT Case Name: Adelaide Metcalfe (Township) v. Director, MECP

Heard: In writing

APPEARANCES:

Parties

Counsel

Township of Adelaide Metcalfe

Paula Lombardi

Director Ministry of the Environment, Conservation and Parks

Isabelle O’Connor

LaSalle Agri Inc.

Eric Davis Trenton Johnson

DECISION OF THE TRIBUNAL DELIVERED BY HUGH S. WILKINS

Link to the Decision

1On July 31, 2024, LaSalle Agri Inc. (“Approval Holder”) applied for an Environmental Compliance Approval (Sewage) regarding proposed stormwater management works on the Approval Holder’s property located at 25700 Kerwood Road (“subject property”) in the Township of Adelaide Metcalfe (“Township”).

2The proposed stormwater management works is for the collection, transmission, treatment, and disposal of stormwater run-off from a proposed fertilizer storage facility located on the subject property. The fertilizer would consist of slow-release biosolid pellets. It would be stored in two tarped bunkers facilitating the storage of up to a maximum of 110,000 cubic metres (“m³”) of fertilizer. The proposed stormwater management works would include a system for stormwater that comes into contact with the fertilizer pellets and a system for stormwater that does not come into contact. The system for contact stormwater would direct the run-off to a clay-lined pond (“contact stormwater pond”) for storage and then approved use or disposal. The system for non-contact stormwater would have swales and catch basins, a dry pond and a wet pond (“non-contact stormwater pond”), and an oil grit separator, which treats the water before it enters the municipal drain and then the local watershed.

3On January 21, 2026, the Director (“Director”), Ministry of the Environment, Conservation and Parks (“MECP”), approved the application and issued Environmental Compliance Approval No. 8756-DAXLAS (“ECA”) to the Approval Holder.

4On February 5, 2026, the Township filed an application for leave to appeal the Director’s decision under s. 38 of the Environmental Bill of Rights, 1993 (“EBR”).

5In support of its application for leave to appeal, the Township filed submissions along with fact evidence contained in affidavits from the following individuals:

a. Daniel Parker, who is the Fire Chief for the Township, sworn on February 4, 2026; and,

b. Morgan Calvert, who is the Township’s Chief Administrative Officer, sworn on February 5, 2026 and March 4, 2026.

6In response to the application for leave to appeal, the Director filed submissions along with opinion evidence contained in affidavits from the following individuals:

a. Neryed Ragbar, who is a professional engineer employed by the MECP and also the Director who issued the ECA, affirmed on February 19, 2026; and,

b. Yuefeng Zhang, who is a professional engineer employed as the MECP’s Lead Engineer (Wastewater), affirmed on February 18, 2026.

7In its response to the application for leave to appeal, the Approval Holder filed submissions, along with opinion evidence contained in affidavits from the following individuals:

a. L. Jayson McGuffin, who is a land use planner, affirmed on February 19, 2026;

b. Jason Fleury, who is an engineering technologist, sworn on February 19, 2026;

c. Ian Hutcheson, who is a professional engineer, affirmed on February 19, 2026; and,

d. Paul Wagner, who is a fire protection engineer, sworn on February 19, 2026.

1. STANDING TO SEEK LEAVE TO APPEAL

8Section 38(1) of the EBR sets out the test for standing to bring an application for leave to appeal. The test for standing as set out in EBR s. 38(1) requires that:

a. the applicant must be a person;

b. the applicant must be a resident in Ontario;

c. the decision in question must be whether or not to implement a proposal classified under the EBR as a Class I or II instrument;

d. the applicant must have an interest in the decision; and,

e. another person must have a right to appeal under another Act.

Township’s Submissions on Standing

9The Township submits that it is a municipal corporation, incorporated pursuant to the provisions of the Municipal Act, 2001 and thereby it is a person resident in Ontario. It submits that it commented on the ECA through the Environmental Registry process, which demonstrates that it has an interest in the matter. It submits that the Director’s decision implements a proposal for a Class II proposal under EBR s. 22.

Director’s and Approval Holder’s Submissions on Standing

10Neither the Director nor the Approval Holder disputes that the Township has standing to seek leave to appeal under s. 38 of the EBR. They agree that the Township has demonstrated an interest in the proposal and the Approval Holder has a right to appeal the decision under s. 139 of the Environmental Protection Act. The Director and Approval Holder agree that the Township has met the test for standing under s. 38 of the EBR.

Analysis and Finding

11Based on the evidence and submissions before it, the Tribunal finds that the Township is a resident of Ontario, the Director’s decision is to implement a proposal for a Class II instrument, and the Approval Holder has the right under s. 139 of the Environmental Protection Act to appeal the Director’s decision. Based on the Township’s comments made through the Environmental Registry process, the Tribunal finds that the Township also has an interest in the matter. The Tribunal finds that the Township has standing to seek leave to appeal the Director’s decision.

2. THE LEAVE TEST

12The test for leave to appeal under EBR s. 41 has two parts: a reasonableness test; and a significant environmental harm test. Section 41 of the EBR states:

41. Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(a) there is good reason to believe that no reasonable person, having regard to the relevant law and to any government policies developed to guide decisions of that kind, could have made the decision; and

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

To be granted leave to appeal, the Township must satisfy both parts of the test.

A. The Reasonableness Test

Township’s Evidence and Submissions

13The Township submits that the reasonableness test requires it to establish that there is good reason to believe that no reasonable person could have made the decision to issue the ECA having regard to relevant law and government policies. It submits that the standard of proof to be applied in an EBR leave to appeal application is less than the civil standard of a balance of probabilities and that it must be applied in conjunction with the intent of the EBR to allow people to participate in environmental decision making. The Township submits that the Tribunal is not to determine the merits of the appeal or to determine whether the Director’s decision was unreasonable, but whether there is good reason to believe that no reasonable person could have made the decision.

14In its comments made through the Environmental Registry process, the Township set out the following concerns:

• the proposed contact stormwater pond will receive stormwater run-off that is likely to encounter and come into contact with the fertilizer pellets;

• the odour from the contact stormwater pond has not been appropriately addressed;

• the use of tarps increases the potential for stormwater to infiltrate the fertilizer piles and increase the amount of odour emanating from them;

• the proposed contact stormwater pond does not appear to be lined resulting in nutrients and metals being leached into the natural environment; and,

• there is a risk that the stormwater holding ponds may not be appropriately sized resulting in the risk of a spill.

15Another major concern of the Township is the impact, in the event of a fire on the subject property, of fire-fighting water run-off entering the proposed stormwater management ponds and the municipal drain. Mr. Parker stated in his affidavit that the Township’s fire department responded in August 2016 to a fire at a fertilizer storage facility located near the subject property on Sexton Road. He stated that it was determined that the fire was the result of spontaneous combustion of fertilizer pellets. He said the fire department used water pressure to disperse the pile of pellets and then applied fire-fighting foam to extinguish the fire. He expressed concern that the proposed development also carries the risk of spontaneous combustion of pellets and that, if a fire occurs, fire-fighting water may run off and enter the stormwater management system and adjacent drainage ditches. Mr. Calvert stated that contaminated water run-off could enter the local watershed resulting in potentially adverse environmental effects.

16The Township submits that its concerns could have been addressed if the Director had properly considered the applicable laws and polices. It submits that the Director’s failure to consider laws or policies, such as the MECP’s Statement of Environmental Values (“SEV”), and to consider whether the decision properly incorporates, reflects, and applies relevant laws and policies is unreasonable and constitutes grounds for granting leave to appeal. Specifically, the Township submits that there is good reason to believe that the Director’s decision is unreasonable based on the Director’s alleged failure to:

i. consider the MECP’s SEV by not taking into account or misapplying:

1. the ecosystem approach;

2. cumulative impacts;

3. sustainable development;

4. the precautionary approach; and,

5. adaptive management principles

ii. consider the common law rights of residents living in the vicinity of the subject property;

iii. demonstrate that the storage facility’s approval complies with the applicable legislation and regulatory standards;

iv. take into account the risk of spontaneous combustion; and,

v. assess and mitigate the impacts that may arise from fire-fighting wastewater run-off.

MECP’s SEV

17The Township reiterates that the Director is required to consider and apply relevant laws and policies, including the MECP’s SEV. It submits that the applicable SEV principles that must be considered include the ecosystem approach, cumulative effects, sustainable development principles, and the precautionary principle. It submits that the Director failed to properly apply these policies.

Ecosystem Approach

18The Township submits that, under its SEV, the Ministry is required to apply the ecosystem approach when making decisions. It submits that where there are information gaps in an ECA application, it would be unreasonable for the Director to issue the ECA. It submits that the uncertainty of environmental impacts due to such information gaps raises the potential for significant environmental impacts and that these information gaps cannot be remedied by future data collection, monitoring, or reporting. The Township submits that the notice in the Environmental Registry regarding the Director’s decision did not provide any indication or explanation as to how the Director considered the ecosystem approach. In particular, the Township submits that neither the Director nor the Approval Holder assessed, modelled, or considered the impacts of fire-fighting water run-off entering the proposed stormwater management ponds and the municipal drain.

Cumulative Effects

19The Township submits that the Ministry’s SEV requires the Director to consider cumulative effects when making environmentally significant decisions. It submits that this includes consideration of the effects on the environment, the interdependence of air, land, water, and living organisms, and the relationships among the environment, the economy, and society. The Township submits that the Director’s decision did not consider the impacts of fire-fighting activities, the risk of spills, and the associated impacts of surface water overflow to the natural environment. It submits that the Director did not consider or collect data on baseline conditions and failed to study the cumulative effects and assess the environmental impacts of the proposed stormwater management works on the subject property and neighbouring agricultural area. In particular, the Township submits that the Approval Holder’s stormwater management report failed to consider and identify the risks associated with the fire-fighting water run-off and the potential environmental impacts on the surrounding area.

Sustainable Development Principles

20The Township submits that the Ministry’s SEV requires the Director to apply sustainable development principles when making decisions. Specifically, it submits that the Director must consider the effects of decisions on current and future generations, consistent with these principles. The Township submits that there is no evidence that the Director applied any sustainable development principles or that the Director considered spontaneous combustion issues or the impacts of surface water run-off on future residents or development in the area.

Precautionary Principle

21The Township submits that the Ministry’s SEV requires that the Director apply a precautionary, science-based approach when making decisions to protect human health and the environment. It submits that the precautionary principle has been adopted by the Supreme Court of Canada in the interpretation of legislation. It submits that environmental measures must anticipate, prevent, and attack the causes of environmental degradation and, where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The Township submits that, in the present case, there is no indication or explanation of how or whether the Director specifically considered the precautionary principle. It submits that the precautionary principle presumes the existence of environmental risk in the absence of proof to the contrary and places the onus of establishing the absence of environmental harm upon the source of risk. The Township submits that the impacts of surface water contamination and impacts on drinking water sources must be considered and there is no evidence that the Director considered the risks of spontaneous combustion of fertilizer pellets resulting in fire-fighting water run-off entering the stormwater management works, adjacent drainage ditches, and the local watershed.

Common Law Rights of Local Residents

22The Township submits that the common law constitutes relevant law under s. 41(a) of the EBR. It submits that common law rights could be impacted where a regulatory approval, such as the Director’s decision, negates these rights. In particular, the Township submits that the Director must consider whether the activity in question might constitute a nuisance or another tort and whether protective and stringent conditions are needed. The Township submits that the ECA will permit activities that may result in a nuisance to nearby residents or impact their use and enjoyment of their property due to the risk of water quality impacts. It submits that the Director should have refused the ECA or imposed stringent terms and conditions to mitigate impacts, protect the environment, and safeguard public health and safety.

23The Township submits that it is an unwilling host for the proposed fertilizer storage facility due to the risks to the environment, conflicts with surrounding agricultural land uses, and due to fact that it would be the largest facility of its type in Canada or the United States. The Township submits that the Director failed to demonstrate that the ECA complies with the applicable legislation and regulatory standards and did not properly assess and mitigate the impacts that may arise. It reiterated its concerns regarding the risk of spontaneous combustion and fire-fighting water run-off entering the works and adjacent drainage ditches and local watershed.

Director’s Evidence and Submissions

Evidence of Neryed Ragbar

24Mr. Ragbar stated that contact stormwater run-off would be directed to a clay lined pond with no discharge from the pond to the natural environment. He stated that the conditions in the ECA ensure that contact stormwater run-off would not be discharged into the natural environment. He said the ECA’s conditions require a minimum 30 centimetres of freeboard in the contact stormwater pond to protect against overflowing and require that water in the contact stormwater pond would be disposed of through an approved method if it cannot be properly used for irrigation pursuant to an approved Non-Agricultural Source Material ("NASM") Plan.

25Mr. Ragbar stated that the proposed stormwater management works would direct non-contact stormwater run-off through grassed swales to a stormwater management facility including a stormwater management pond consisting of a dry cell to provide quantity control, a wet cell, and oil and grit separator to provide quality control before discharging to the municipal drain. He said the ECA’s conditions require monitoring of water discharged to the municipal drain and reporting of monitoring results to the MECP.

26Regarding risks of water contamination from fire-fighting foam, Mr. Ragbar stated that run-off would be contained in the contact stormwater pond, which he reiterated would be lined to prevent groundwater infiltration and would not discharge to the natural environment.

Evidence of Yuefeng Zhang

27Dr. Zhang stated that most of the public comments that were received through the Environmental Registry process were on whether the fertilizer pellets are safe for growing crops and animal feedstock. He stated that the biosolid fertilizer in question is regulated under the federal Fertilizers Act and by the Ontario Ministry of Agriculture, Food and Agribusiness (OMAFA) as a NASM. He said the NASM approval process requires that the source material and receiving area meet strict criteria and that subject to these requirements, the product is safe for growing crops and animal feedstock.

28Dr. Zhang reiterated that the ECA addresses both stormwater run-off that has been in contact with the biosolid fertilizer and run-off that has not been in contact with it. He said that stormwater run-off that potentially was in contact with the biosolid fertilizer would be directed to a stormwater pond lined with clay, which would prevent discharges to the environment or groundwater. He said this pond has a storage volume of 29,100 m³, which can handle the worst-case scenario where a maximum amount of run-off occurs. For stormwater run-off from other areas that have no contact with the fertilizer, he stated that run-off would be collected through grassed swales and directed to a stormwater management facility consisting of a dry cell and a wet cell for treatment. He said it would then be further polished by an oil and grit separator before discharge to the municipal drain. He said this would provide enhanced level quality control and quantity control to meet the allowed discharge flow rates under different conditions, including 100-year stormwater events.

29Dr. Zhang stated that the ECA’s conditions address construction of the contact stormwater pond, re-routing of field drainage tiles away from the facility, maintenance or abandonment of any existing water supply wells on the subject property to ensure prevention the flow of water and contaminants into the subsurface, and the maintenance of a minimum of 30 centimetres of freeboard in the contact stormwater pond at all times to prevent overflow.

30Dr. Zhang stated that he considered the Ministry’s SEV when assessing the ECA application. Regarding the ecosystem approach, he stated that there are no information gaps in the materials supplied by the Approval Holder. He stated that the 2021 stormwater management report, that was relied on by the Township in its submissions, was replaced by a newer report dated June 6, 2025, which provides full details on possible stormwater water impacts from the proposed facility, including impacts from fire-fighting water run-off. He stated that run-off from fire-fighting activities would not leave the site but would be collected in the contact stormwater pond. He said that if fire-fighting water run-off reached the non-contact stormwater pond, a shut-off valve at the outlet of the pond would be used to transfer the water to the contact stormwater pond where it would be collected and contained and then safely removed.

31Regarding cumulative effects, Dr. Zhang stated that all spills and impacted surface water, including fire-fighting run-off, would be collected and contained in the contact stormwater pond and would not be discharged. He said the risks of cumulative effects were fully considered during the design and application review processes. He stated that as the only discharges to the environment would be treated non-contact stormwater, no baseline conditions or cumulative effects studies were required.

32Regarding consideration of the principles of sustainable development, Dr. Zhang stated that as there would be no impacted surface water run-off discharged to the environment, future residents and new development in the area would not be affected.

33Regarding consideration of the precautionary principle, Dr. Zhang stated that any fire-fighting water run-off would be contained within the contact stormwater pond and would not discharge to adjacent drainage ditches or travel into the local watershed. He opined that the creation of two separate ponds reflects a precautionary approach and that if fire-fighting water is generated on non-contact areas of the subject property, the water would be collected in the non-contact stormwater pond and its outlet would be shut off to contain the fire-fighting water.

34Regarding consideration of the common law rights of local residents, Dr. Zhang stated that nuisance-causing contaminants such as noise, odour, dust, and airborne pollutants from the proposed operation were assessed following MECP guidelines and were found to comply with all applicable standards.

Director’s Submissions

35The Director submits that all relevant laws and policies were considered, no errors have been identified, and no expert evidence was filed by the Township to challenge the technical basis for the decision. The Director submits that the Director’s decision must be egregiously in error for leave to be granted. The Director submits that the test is not whether the Director’s decision could have been improved, made in a different manner, or whether there is evidence in support of a different decision. The Director submits that there must be good reason to believe that the decision lies outside the range of reasonable decisions that was possible given the facts and the applicable laws and policies.

36In the present case, the Director submits that run-off from areas where there is potential for contact with the fertilizer would be directed to the clay-lined stormwater pond and would not discharge into the environment or infiltrate into groundwater. The Director submits that the contact stormwater pond’s capacity of 29,100 m³ would accommodate the worst-case scenario for run-off from the storage area. The Director submits that non-contact run-off would be collected in grassed swales and directed to and treated and then discharged into the municipal drain at a rate that would comply with the drain’s flow limits.

37Based on Dr. Zhang’s evidence, the Director submits that the design of the proposed stormwater works, and the consideration of impacts reflects the ecosystem approach and there were no information gaps or inadequate modelling in the reports and supporting materials. Regarding cumulative effects, the Director submits that the risk of fire is not directly connected to the stormwater management works approved under the ECA. The Director submits that the risk of run-off from fire-fighting activities was considered, and it was found that there would be no discharges of untreated water into the environment, thus negating the need for studying cumulative effects or baseline conditions. The Director submits that there would be no contact surface water run-off discharged to the environment and future residents will not be affected by the decision. Regarding consideration of the precautionary principle, the Director submits that there is a high level of certainty that there will not be adverse effects as a result of the ECA, including any effects from run-off from fire-fighting activities, and that the ECA’s conditions requiring the installation of a clay liner in the contact stormwater pond, monitoring and reporting, maintaining a 30-centimetre minimum freeboard in the contact stormwater pond, abandoning on-site wells, redirecting on-site drainage tiles away from the facility, and requiring alternative disposal options if the contact stormwater pond nears capacity, all reflect the application of the precautionary principle. Regarding the consideration of the common law rights of local residents, the Director submits that odour and dust concerns are related to the storage of fertilizer and not to the stormwater water management system. Nevertheless, the Director submits that these concerns have been addressed through the creation of an Odour Best Management Practices Plan.

Approval Holder’s Evidence and Submissions

Evidence of Jason Fleury

38Mr. Fleury stated that the subject property drains to roadside ditches along Kerwood Road and Winter Drive and through an on-site drainage tile, ultimately discharging to the municipal drain through a catch basin in the roadside ditch on Winter Drive. He said the proposed method of fertilizer storage, the layout and the design of the storage bunkers, tarping system, and the dispersion area provide an effective strategy to minimize the quantity of stormwater run-off coming into contact with the fertilizer. He opined that by minimizing the quantity of the contact water, directing the run-off to separate sufficiently sized ponds, and providing enhanced protection for the contact stormwater pond will prevent impacts to the natural environment. He stated that the proposed works were designed to handle run-off from fire-fighting activities, and water and fire-fighting foam used on the piles would be primarily contained within the concrete bunkers. He said run-off would be directed to the concrete dispersion area and then to the contact stormwater pond. He stated that run-off and fire-fighting foam would be fully contained on-site until the appropriate method of disposal is undertaken. He said the contact and non-contact stormwater ponds were oversized to contain run-off from a 250-year storm event, which is a greater volume than that generated by a fire-fighting operation.

Evidence of Ian Hutcheson

39Regarding the Township’s concern that the stormwater ponds may not be appropriately sized, Mr. Hutcheson stated that the non-contact stormwater pond is designed to control post development flows for 2-, 5-, and 10-year design storm events to the capacity of the downstream municipal drainage tile, and attenuate post-development peak flows to pre-development peak flows for 25 to 250-year design storm events. For the contact stormwater pond, he stated that the maximum required storage volume under worst case scenario conditions was calculated with both fertilizer bunkers empty and uncovered, generating the maximum run-off to the contact stormwater pond for 8.5 months and the remaining 3.5 months treated as flow-through volumes representing the minimum irrigation events under the approved NASM Plan. He stated that with the incorporation of the operational cycle and irrigation drawdown, the contact stormwater pond would provide roughly double the volume of water storage that is needed. Based on this, he opined that the non-contact stormwater pond and the contact stormwater pond are appropriately sized and will not overflow.

40Regarding the Township’s concern that odours from the contact stormwater pond were not appropriately considered, Mr. Hutcheson stated that odour issues have been addressed through the Environmental and Activity Sector Registry process, which included source sampling, modelling, and the development of Best Management Practices.

41Regarding fire-fighting water run-off, Mr. Hutcheson stated that, if there was a fire, the run-off would go to the contact stormwater pond, where it could be tested and, if necessary, treated and disposed of off-site. He stated that if the run-off went to the non-contact stormwater pond, a gate valve would be shut to limit the risk of contamination and then the water could be tested and, if necessary, treated and disposed of off-site.

42Regarding consideration of the Ministry’s SEV, Mr. Hutcheson stated that all ecosystem risks were considered, including risks of exposure to wastewater and stormwater discharges along with noise, air, and odour emissions. He stated that cumulative impacts were considered through AERMOD air emissions modelling whereby the cumulative effects of emissions were assessed. He opined that the proposed fertilizer storage facility aligns with sustainability principles as it uses biosolids that would be destined for a landfill to provide nutrients for agriculture.

Evidence of Paul Wagner

43Mr. Wagner stated that although the fertilizer to be stored can self-heat, testing has demonstrated that it does not have a propensity to spontaneously ignite. He opined that by tarping the fertilizer piles, their exposure to oxygen will be limited, which will reduce the probability of microbial oxidation which causes self-heating. He opined that past fires at temporary fertilizer field storage sites in the area occurred in circumstances that are distinct from the engineered facility proposed on the subject property with its specific fire protection measures.

Approval Holder’s Submissions

44The Approval Holder submits that the Tribunal must consider the manner in which the decision is reached, what was considered, and the decision itself. It submits that the onus rests on the Township to demonstrate through evidence that it satisfies the EBR tests. It submits that, in the present case, the affidavits filed by the Township only provide general assertions and do not provide expert evidence. It submits that the alleged harm cannot be speculative or based on hypothetical scenarios. It submits that it must be grounded in present facts.

45The Approval Holder submits that the Township has failed to provide evidence that the Director’s decision is inconsistent with MECP’s SEV. It submits that wastewater and stormwater discharges and noise, air, and odour emissions were considered, and there is no evidence of impacts to processes, functions, or the interactions among components of the environment. It also submits that cumulative impacts were considered by means of air emissions modelling (using AERMOD), which requires consideration or the cumulative effects of all emissions from a site. Regarding consideration of the precautionary principle, the Approval Holder submits that the Township has not produced evidence of scientific uncertainty or demonstrated that there are threats of serious or irreversible damage. On this point, it submits that modelling was done conservatively taking into account worst case scenarios. Regarding sustainability, the Approval Holder submits that the nature of the proposed fertilizer storage facility reflects sustainable development principles in that it uses waste to provide nutrients for crops. It submits that the Director considered the common law rights of local residents through the Director’s responses to community comments posted on the Environmental Registry and through the ECA’s conditions on spill contingency planning, pollution prevention planning, and monitoring and recording.

Analysis and Findings

46To satisfy the reasonableness test, an applicant must demonstrate that there is good reason to believe that the Director’s decision lies outside the range of reasonable decisions given the facts and the applicable laws and policies.

47In the present case, the Township has set out a variety of concerns regarding the ECA, but it has failed to provide compelling evidence to support its positions. These concerns have each been comprehensively responded to by the Director and the Approval Holder with opinion evidence directly addressing each point. Based on the evidence before the Tribunal, the design of the proposed stormwater works will ensure that no contaminated water will enter the watershed, even if water from fire-fighting activities are performed or extreme weather events are experienced.

48The Tribunal finds that there are no unreasonable information gaps and that the unchallenged modelling in support of the proposed works, which demonstrates no adverse environmental or health and safety impacts, was done taking into consideration the ecosystem approach. Many of the Township’s concerns arose from perceived information gaps in a stormwater management report, which, based on the responding evidence and submissions of the Director and Approval Holder, were subsequently addressed in an updated stormwater management report produced by the Approval Holder. The Township did not provide any compelling rebuttal to address this in its Reply materials.

49Based on the evidence provided regarding cumulative effects, the Tribunal finds that the Director considered the risk of run-off from storm events and fire-fighting activity and found there would be no discharges of untreated water into the environment, thus negating the need for studying baseline conditions. In terms of consideration of sustainable development principles, the Tribunal finds that, based on the evidence before it, there will be no contact surface water run-off discharged to the environment and future residents will not be adversely affected by the decision. The Tribunal also finds that the Township has not provided evidence demonstrating scientific uncertainty or the likelihood of adverse effects causing environmental harm, which would call for the application of the precautionary principle. Also, given the Director’s responses to public comments posted on the Environmental Registry and the absence of evidence demonstrating a likelihood of any adverse impacts, the Tribunal finds that the Director considered and addressed the common law rights of local residents.

50The MECP’s SEV states that planning and management for environmental protection should strive for continuous improvement and effectiveness through adaptive management. Although the Township raised the issue of consideration of the SEV principles relating to adaptive management, none of the Parties, including the Township, comprehensively addressed the issue in their evidence or submissions. Based on the evidence before it, the Tribunal finds that the ECA’s conditions are comprehensive and adopt an adaptive management approach. They adequately address excessive run-off conditions through Condition 7(6) requiring the Approval Holder to haul off water for off-site disposal or to operate a mobile treatment system, Condition 6 requiring a spill contingency plan, and Condition 7(9) requiring the Approval Holder to develop contingency plans and procedures for responding to emergencies, upset conditions, and equipment malfunctions.

51The Township also argued that the Director failed to demonstrate that the storage facility’s approval complies with other applicable legislation and regulatory standards. The Township has the onus to identify such contraventions and to provide supporting evidence. It failed to do so. The Tribunal finds that there is no compelling evidence before the Tribunal to support these concerns.

52Regarding concerns relating to the risk of spontaneous combustion and the need to assess and mitigate the impacts that may arise from fire-fighting wastewater run-off, the evidence before the Tribunal is that these issues were addressed by the Approval Holder and also considered by the Director. In this regard, Mr. Wagner’s evidence was that although the fertilizer can self-heat, testing has demonstrated that it does not have a propensity to spontaneously ignite. He opined that by tarping the fertilizer piles, exposure to oxygen will be limited which will reduce the probability of microbial oxidation causing self-heating. Mr. Fleury’s evidence was that the proposed works are designed to handle run-off from fire-fighting activities and there would be no impacts that would arise from fire-fighting wastewater run-off. His uncontradicted evidence was that run-off would be directed to a concrete dispersion area and then to the contact stormwater pond. He stated that run-off and fire-fighting foam would be contained until an appropriate method of disposal is undertaken. He said the contact and non-contact stormwater ponds were oversized to contain run-off from a 250-year storm event, which is a greater volume than that which would be generated by a fire-fighting operation.

53Based on the evidence and submissions before it, the Tribunal finds that the Township has failed to demonstrate that it appears that there is good reason to believe that no reasonable person could have made the decision to issue the ECA.

B. The Significant Environmental Harm Test

54Section 41(b) of the EBR states:

41. Leave to appeal a decision shall not be granted unless it appears to the appellate body that,

(b) the decision in respect of which an appeal is sought could result in significant harm to the environment.

55Under this test, the Township must establish on a prima facie basis that the decision could result in significant harm to the environment.

Township’s Evidence and Submissions

56The Township submits that the ECA is a Class II instrument under s. 20(2)4 of the EBR, signifying that it has the potential to have a significant effect on the environment. The Township submits that the ECA may result in environmental impacts to nearby residents and the surrounding area, including interference with the use and enjoyment of property. It submits that recent local fires were caused by the combustion of fertilizer pellets indicating the risk of environmental harm posed by the activities permitted under the ECA. It submits that the ECA does not include sufficient conditions to address these threats.

57Mr. Parker stated that the storage of fertilizer pellets results in a significant threat to public health and safety due to the risk of spontaneous combustion resulting in smoldering and fires. He reiterated that there is also a risk of harm from fire suppression activities as the water used to disperse pellets and the application of fire-fighting foam to cover the area as a suppressant could result in an influx of water being deposited into the area and cause an overflow of the contact and non-contact stormwater run-off ponds.

58Mr. Calvert stated that a fire management incident on the subject property could easily result in an overflow of the stormwater management system with contaminated water entering the municipal drain and local watershed. He stated that 229 public comments were submitted during the public consultation period, most of which set out concerns regarding impacts to the community and area. He stated that the recent fires in the area confirm the risk of spontaneous combustion of fertilizer pellets and associated off-site impacts and environmental harm. He said the ECA’s conditions do not adequately address these threats. He stated that the ECA should include conditions on financial assurance, the creation of a community liaison committee, and protocols for responding to emergencies, upset conditions, and equipment malfunctions. He also expressed concerns regarding the enforceability of the existing conditions in the ECA. He said that the stormwater management report that he reviewed indicates a serious risk of overflow into the municipal drain and local watershed.

Director’s Evidence and Submissions

59The Director submits that the Township is required to demonstrate a prima facie case that the decision could result in significant harm to the environment based on substantial information establishing the potential for significant harm. The Director submits that the Township cannot simply infer harm because of the classification of the ECA as a Class II instrument or simply set out concerns with the decision. The Director submits that the Township has provided no evidentiary basis to satisfy the significant harm test and that the risks and concerns that it has set out are speculative and lack a factual foundation.

60The Director submits that most of the public comments submitted during the public consultation period relate to the storage and use of biosolid fertilizer, along with concerns regarding odours and dust, lowering of property values, risk of fire, traffic from transport trucks, noise pollution, and the novelty of the proposed facility. The Director submits that these are not relevant to the operation of the proposed stormwater works. The Director submits that the comments relating to the proposed stormwater works do not demonstrate a potential for significant harm, and, in any event, each comment was addressed through the engineering design of the works and the ECA’s conditions. The Director submits that these include concerns about impacts to wells and drinking water, which are addressed by the design of the works ensuring that contact water is directed to a contact stormwater pond and minimum separation distances. The Director submits that concerns regarding spills from contact stormwater run-off are mitigated by the ECA’s requirement directing all contact stormwater run-off to the contact stormwater pond, which is designed to accommodate worst-case storm conditions and fire-fighting water run-off. The Director submits that concerns that non-contact or contact stormwater could drain into the watershed are addressed by the treatment of non-contact stormwater and by limiting the discharge rates from the pond.

61Regarding the adequacy of the ECA’s conditions, the Director submits that it is not anticipated that there will be any off-site impact resulting from the discharge of non-contact water, and contact stormwater will be collected in the contact stormwater pond and be utilized in accordance with the NASM Plan or disposed of. If the contact stormwater pond is unable to handle the flow of run-off, the Director submits that the ECA’s Condition 7(6) requires the Approval Holder to have the water hauled off for off-site disposal or to operate a mobile treatment system for treatment and disposal. The Director submits that financial assurance is not required for this type of facility, the Approval Holder is required to develop and implement a spill contingency plan under Condition 6, and the Approval Holder is required to develop contingency plans and procedures responding to emergencies, upset conditions, or equipment malfunctions under Condition 7(9).

Approval Holder’s Submissions

62The Approval Holder submits that the alleged environmental harm cannot be speculative or based on hypothetical scenarios. It submits that the Township has simply raised concerns and has failed to establish a prima facie case to show that the Director’s decision could result in significant harm to the environment.

Analysis and Findings

63The environmental harm test requires the Tribunal to determine whether it appears that the Director’s decision to issue the ECA could result in significant harm to the environment. The onus lies on the Township to satisfy this test. The test requires that the Township provide substantive evidence that significant environmental harm could result. The Tribunal finds that the Township has provided no compelling evidence of significant environmental harm that could be caused by the decision to issue the ECA and has failed to demonstrate that the significant environmental harm test has been met. Each of the Township’s concerns have been considered and addressed by the Director, including those relating to the risk of overflows caused by extreme weather events or fire fighting activities. Based on the evidence before the Tribunal, contaminated water will not infiltrate groundwater or be discharged into the environment, and the Township has not demonstrated that it appears that the Director’s decision could result in significant harm to the environment.

64Based on the evidence and submissions before it, the Tribunal finds that the Township has failed to demonstrate that it appears that the Director’s decision could result in significant harm to the environment.

3. CONCLUSION

65The Tribunal finds that the Township has failed to satisfy the two-part test for leave to appeal under s. 41 of the EBR.

DECISION

66The Tribunal dismisses the Township of Adelaide Melcalfe’s application for leave to appeal.

“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.