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Parties and Date of
Leave Application
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Description of Grounds
for Leave to Appeal
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Decision on Leave Application
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Status/Final Outcome, Decision
Date and Comments
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Registry #
Applicants:
Albert Hunter
Ministry:
MOE
Proponent:
OSBBC Ltd.
Date of Application:
July, 1995
Instrument:
C of A
Tribunal: Environmental Appeal Board (EAB)
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Leave to appeal application made by the EAB for a decision made
by a Director at MOE to issue a certificate of approval (C of
A) for the operation of eight air emission points at a wood product
plant owned by OSBBC Ltd., a subsidiary of Boise Cascade.
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The main finding of the EAB was that the Director
acted “reasonably” by applying “standard Ministry procedures”
in assessing the environmental dangers.
The EAB felt it was not necessary to address
the potential for “significant harm to the environment” since
the first arm of the test was not cleared.
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Leave to appeal denied.
The EAB sees the two parts of the test as separate and distinct.
Therefore, one does not have to move to the second part of the
test until the first part is satisfied.
“The applicant bears the onus of showing on
a balance of probabilities” that the two branches of the test
have been met.
*Note- it may be that even if a ministers decision is patently
unreasonable the second arm of the test may still defeat the appeal.
The board took a purposive view of its role
under the EBR in this first case..
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Registry #: IA5E0647
Applicants:
APT (Assuring Protection for Tomorrow’s) Environment
Proponent: Uniroyal Chemical Ltd.
Ministry:
MOE
Date of Application:
August, 1995
Instrument:
C of A
Tribunal: Environmental Appeal Board (EAB)
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The applicant sought leave to appeal a decision
by MOE to amend a C of A for sewage works granted to Uniroyal
Chemical Limited in Elmira. The amendment appealed proposed the
additional contaminant and treatment of groundwater from the top
beds of an aquifer located on UCLs property. The appeal was based
on the grounds that the decision was unreasonable and that the
C of A as drafted would result in significant harm to the natural
environment.
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The Appeal Board found that the change to the certificate was
not a Class II instrument under O. Reg. 681/94 of the EBR.
Therefore, ATPE was not entitled to bring a leave application
as the instrument being appealed was not prescribed under the
EBR.
The Board also found that the instrument was
not unreasonable in light of the intent by MOE to control the
release of contaminants from the Uniroyal site. Furthermore, the
EAB decided that the treatment of some contaminated water at
the site would not result in significant harm to the environment.
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Leave to appeal denied.
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Registry #:
IA5E1655
Applicants:
Northwatch
Proponent:
Harbour Remediation and Transfer Inc.
Ministry:
MOE
Date of Application:
February, 1996
Instrument:
C of A
Tribunal: Environmental Appeal Board (EAB)
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This appeal concerned a decision by MOE to issue a C of A for
a project involving the shipment of treated sewage sludge. Some
of the concerns raised by the applicants were: the project was
not given adequate review, biosolids are not an appropriate cover
for mine tailings, adverse environmental impacts, biosolids will
not act as an effective oxygen barrier to reduce acid mine drainage,
and MOE had not responded in a satisfactory manner to its concerns.
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The Board did not grant leave to
Northwatch on the basis that the decision not to provide an equivalent
opportunity to comment was not within the authority of the Director
and therefore was not unreasonable. In addition, it was found
that the wish of Northwatch to have the approval to HRT deferred
and considered jointly with the application to dispose the biosolid
wastes at Falconbridge Mines was effectively granted.
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Leave to appeal denied: April 2, 1996
Reasons issued by the EAB on August
16, 1996.
The EAB found that an unincorporated association
was within the meaning of a person found in s.38 of the EBR and
allowed Northwatch standing.
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Registry #:
IA5E2387
Applicants:
Wetlands Preservation Group of West Carleton (WPG)
Proponent:
Coopers and Lybrand
Ministry:
MOE
Date of Application:
March, 1996
Instrument: PTTW
Tribunal: Environmental
Appeal Board (EAB)
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The WPG applied for leave to appeal the renewal of a permit to
take water (PTTW) issued by MOE to Coopers and Lybrand. The ground
for the appeal was a reasonable risk of serious environmental
harm. The applicant alleged that the discharge of pesticides and
fertilisers used on the golf course was entering the ecosystem
of the Class I Constance Creek wetland through the shallow groundwater
and the drainage system of the golf course.
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The board found that the PTTW was
“not the appropriate instrument to address the concerns” raised
by the applicants. The WPG was mainly concerned with the discharge
of chemicals.
The Board suggested that the applicants could
use other mechanisms under the EBR to address their concerns.
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Leave to appeal denied: May 9, 1996
This case is an example of how s. 38 is linked
to s. 41. While s. 38 presents a low threshold, it must still
be met for the appeal to succeed.
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Registry #:
IA5E0790
Applicants:
Barker, Major, Kiers and Skipper
Proponent:
Robert R. Cooke and Son Ltd.
Ministry:
MOEE
Date of Application:
May, 1996
Instrument:
C of A
Tribunal: Environmental Appeal Board (EAB)
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Baker et al. applied for leave on a decision
by MOEE to issue a C of A. The C of A was to allow the receipt
of waste at a waste disposal site in Southwestern Ontario that
had been out of operation since 1978. The Applicants were concerned
that the decision was unreasonable and could be detrimental to
the environment.
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In granting leave to appeal this
decision, the Board concluded that the Director may have acted
unreasonably and that the decision to permit the reopening of
the site could result in significant harm to the environment.
In this decision, the Board decided to use a
lower standard of proof at the leave to appeal stage. The EAB
lowered the test from a “balance of probabilities”
to that where the applicant has to show a “prima facie case”.
Therefore, one must now show “preliminary merits” or raise a “serious
question” to obtain a leave.
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Leave to appeal granted: March 24, 1996
This was the first successful third
party leave to appeal application.
The parties reached a settlement in November,
1996.
The applicants withdrew their appeal in February,
1997 when the instruments required to carry out the settlement
were posted on the Registry.
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Registry #:
IA6E0241
Applicants:
Carruthers, Lovekin and Rohde
Proponent:
County of Northumberland
Ministry:
MOEE
Date of Application:
May, 1996
Instrument: EPA
s. 27 - C of A for a waste disposal site
Tribunal: Environmental Appeal Board (EAB)
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The Applicants appealed a decision of the MOE to amend the County
of Northumberland’s provisional C of A for its waste processing
site. The
amendment was to change the existing three-stream waste operation
to a two-stream waste operation. The reasons for seeking leave
included: the two-stream waste operation could result in a higher
landfill disposal rate and therefore, greater harm to the environment.
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The Board found that the Applicants had an interest
in the decision, however, they had failed to provide any evidence
that the Director’s actions were unreasonable or that significant
harm would result from the amendment to the certificate of approval.
The two stream waste processing system was found to create less
harm to the environment than sending all the Country’s waste to
a landfill.
The Board also noted that the County has agreed to incorporate
some of the applicant’s suggestions into the operational procedures
for the facility.
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Leave to appeal denied: August 1, 1996
Reasons issued February 7, 1997.
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Registry #:
IA6E0344
Applicants:
K&E Blackwell Road Landfill (LAC)
Proponent:
Philip
Ministry:
MOE
Date of Application:
July, 1996
Instrument:
C of A for a waste disposal site. EPA s. 27
Tribunal: Environmental Appeal Board (EAB)
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A member of the Land Advisory Committee for
the K&E Blackwell Road Landfill site sought leave to appeal
on a MOE decision to allow the company to treat hazardous waste,
Electric Arc Furnace Dust (EAF dust) and dispose of it as non-hazardous
waste at the K&E Blackwell Road Landfill Site.
Waste materials at the site were not to exceed
20K tonnes while condition 60(2) on the certificate allowed no
more than 100K tonnes of processed EAF dust to be disposed.
The grounds for seeking leave included; that there was inadequate
information available about the processing of EAF dust; possible
ground water contamination; inadequate communication with residential
neighbors; the waste represented a higher risk to the residential
neighbors; and that the land fill might not be appropriate for
such high risk material.
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The onus on the applicant (Hunter) to meet the standard
of proof is as set out in Barker for an application for
leave. There must be a “serious question” raised by the Applicants.
The Director’s decision here was reasonable “having
regard to the relevant law and to the government policy” as set
in s. 41.(a). The applicant was given two opportunities to
initiate a review by an outside source but failed to. The Director
also took all reasonable measures and adequately assessed the
impact of environmental risks
Having found that the Director had not acted
unreasonably, the Board felt there was no need to examine whether
there was a risk that the decision could cause serious harm to
the environment.
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Leave to appeal denied: October
24, 1996
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Registry #:
IA7E0117
Applicants:
Morrison, Eugene/George Knowles
Proponent:
Aaroc Aggregates Ltd.
Ministry:
MOE
Date of Application:
June, 1997
Instrument:
C of A for a waste disposal site. EPA s. 27
Tribunal: Environmental Appeal Board (EAB)
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Leave was sought on a MOE decision to grant
a C of A for a waste disposal site (processing ) to Aaroc Aggregates
Ltd. The C of A allows Aaroc to receive a max of 1,500 tonnes
of construction and demolition material per day for recycling.
The max amount of waste allowed to be stored on the site is 100,000
tonnes.
The applicants put forth 13 reasons they felt the decision was
unreasonable and 7 reasons they felt the environment would be
impacted significantly including a nuisance argument.
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The Environmental Appeal Board denied leave
to appeal in this case. The Board found that the applicants succeeded
in showing good reason to believe the Director acted unreasonably
on one of the ground alleged-inadequate consideration of ground
water and surface water issues. However, the Board found that
the applicants failed to show that the decision could result in
significant harm to the environment (s. 41(b)).
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Leave to appeal denied:
October 10, 1997.
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Registry #
IA6E1637
Applicants:
Kenneth and Ethel Ricker
Ministry:
MOE
Proponent:
Dunnville Rock Products Ltd.
Date of Application:
June 19, 1997
Instrument:
Permit to take water (PTTW), s. 34, OWRA
Tribunal: Environmental Appeal Board (EAB)
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The applicants sought leave to appeal the decision
of MOE to grant a PTTW to Dunnville Rock Products Ltd. for the
purposes of quarry dewatering. The applicants own residential
property near the quarry and rely on well water for drinking and
domestic uses.
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The EAB granted the leave to appeal
application for two grounds: whether there are changes in the
terms and conditions of the PTTW that could improve compliance
by the proponent; and whether there should have been an expiry
date on the PTTW to take water.
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Leave to appeal granted: September 3, 1997
Appeal withdrawn on January
24, 2000
The appeal was withdrawn after prolonged negotiations
between the parties.
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Registry # IA8E0664
Applicants:
Regional Municipality of Durham
Ministry:
MOE
Proponent:
Can-Sort Recycling Ltd
Date of Application:
August 26, 1998
Instrument:
C of A for a waste disposal site
Tribunal: Environmental Appeal Board (EAB)
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The Municipality of Durham launched a leave
to appeal application on an amendment to a C of A for a waste
disposal site issued to Can-Sort Recycling Ltd. The appeal is
based on the following grounds: the decision did not adequately
address previous non-compliance by Can-Sort, safety concerns,
and concerns regarding the large increase of waste volumes.
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The Region withdrew its appeal in mid-September
1998.
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Appeal withdrawn: September 16, 1998.
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Registry #
IA7E1900
Applicants:
Aegean Enterprise
Ministry:
MOE
Proponent:
Recycle Plus Ltd.
Date of Application:
September, 1998
Instrument:
C of A for a waste transfer station under s.27 of the EPA.
Tribunal: Environmental Appeal Board (EAB)
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The applicants challenged an MOE decision to
grant a provisional C of A for a waste transfer station to Recycle
Plus Ltd. The Applicants seek leave to appeal on several grounds
including: environmental harm has and will continue with the operation
of the site, the certificate does not require a system for the
proper collection and treatment of lea hate generated by the food
waste processed by the company and the Toronto (Etobicoke) Zoning
code prohibits the facility. Furthermore, Recycle Plus has been
operating without MOE approval contrary to the EPA and
an MOE field order.
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The Board denied the application
on the basis that the test for leave to appeal had not been satisfied
by the Applicants. The Board found that the Director had exercised
his discretion in a reasonable manner in determining that a public
hearing was not required under the EPA. Furthermore, the
concerns of the applicants had been addressed by the C of A and
their comments were considered by the Director.
The Board further noted that the adequacy of
the conditions contained within the C of A depends upon whether
the instrument holder is complying with the conditions and whether
those conditions are being enforced. These are separate issues
from whether the conditions themselves are reasonable. The Board
noted the need to monitor this facility carefully, especially
in regard to the site operation and record keeping requirements.
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Leave to appeal denied:
November 12, 1999.
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Registry #IA8E1042
Applicants:
Greta Thompson and Keith Thompson et al.
Ministry:
MOE
Proponent:
Ridge Landfill Corporation
Date of Application:
November 5, 1998
Instrument: Certificate of approval (CofA), s.
27, EPA
Tribunal: EAB
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The applicants sought leave to appeal the decision to amend a
CofA extending the time frame for which a waste disposal site
is able to accept industrial, commercial and institutional (IC&I)
waste from all of Ontario from December 21, 1998 to the date upon
which the site reaches approved capacity. The grounds for seeking
leave included: amendment attempts to circumvent the minister’s
approval to expand the landfill site under the EAA; permits IC&I
waste disposal on lands not zoned for waste disposal uses; and
the proponent has a lengthy history of non-compliance with applicable
regulatory requirements.
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The EAB granted the leave to appeal application. The EAB found
that the amendment to the CofA circumvented the minister’s approval
to expand the landfill site under the EAA. The EAA approval was
based on the approved service area in force at that time, which
only allowed waste from all of Ontario to be accepted until December
21, 1998. The EAB found that the MOE Director’s decision to grant
the amendment to the CofA was not reasonable.
After the appeal was granted, however, the applicants
decided they could no longer justify the cost, time, and
effort in pursuing their appeal of this amendment. Even success
on appeal would be short-lived due to the recent developments.
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Leave to appeal granted: December 29, 1998
Appeal withdrawn on February 2, 1999
After being granted leave to appeal, the following
events occurred: on January 20, 1999, the Ontario Municipal Board
decided to dismiss, without a hearing, the appellants’ appeal
of the re-zoning by-law for the landfill site; on January 27,
1999, MOE, without a hearing, issued a new C of A to the Ridge
Landfill Corporation which permits the disposal of IC&I waste
from all of Ontario for the next twenty years; and on January
28, 1999, the EAB lifted the stay of the operation of the certificate
of approval that was the subject of the leave to appeal application,
after considering Environmental Assessment documentation, enabling
Ridge Landfill Corporation to accept industrial, commercial and
institutional waste from all of Ontario.
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Registry #IA8E1707
Applicant:
Soyers Lake Ratepayers Association Inc.
Ministry:
MOE
Proponent:
Woodlands Ranch
Date of Application:
February 3, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicant sought
leave to appeal the decision to grant a PTTW permitting Woodlands
Ranch to take up to 4,540 litres of water per minute or 2,724,000
litres per day from Little Soyers Lake for the purpose of irrigation
for 25 years. The grounds for seeking leave included: insufficient
notification and consultation by MOE; extinguished flow to Soyers
Lake; and reduced irrigation of the Soyers Creek wetlands.
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The EAB granted the leave to appeal application. The EAB found
that there was disagreement among the parties about the surface
area and water capacity of Little Soyers Lake. Other assumptions
which were the basis for the Director deciding to issue the PTTW
also appeared to be flawed or questionable. The appeal hearing
is limited to the subjects of the rate of water taking and the
terms of two special conditions, unless all parties agree otherwise,
or the EAB determines otherwise.
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Leave to appeal granted: February
3, 1999
Appeal withdrawn on June 16, 1999.
As a result of a meeting between the Soyers
Lake Ratepayers Association, MOE, and Woodlands Ranch, held on
June 9, 1999, a set of conditions were drawn up by MOE for the
PTTW that essentially addressed all of the concerns raised in
the appeal.
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Registry #IA8E1232
Applicant:
Northwatch
Ministry:
MOE
Proponent:
Enviro-Med Canada Limited
Date of Application:
March 30, 1999
Instrument: CofA, s. 27, EPA
Tribunal: EAB
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The applicant sought leave to appeal the CofA permitting the
proponent to operate a biomedical waste management facility in
North Bay and dispose of residual waste in the North Bay landfill.
The grounds for seeking
leave included: there are conflicts
with the MOE strategy stating that biomedical wastes should be
managed close to their point of generation; the technology has
not undergone sufficient testing and review; and the decision
could result in significant environmental harm.
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The EAB denied the leave to appeal
application on the following grounds: the MOE strategy had not
been adopted and was not binding; a condition requires technology
testing before the proponent can begin operation; there is a negligible
chance that there would be a release to the environment of dioxins
and mercury; and wastewater from the facility will be collected,
tested and disposed of in an appropriate manner.
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Leave to appeal denied:
May 18, 1999
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Registry #IA9E0365
Applicants:
Federation of Ontario Naturalists et al.
Ministry:
MOE
Proponent:
Norampac
Date of Application:
May 21, 1999
Instrument: Order for preventative measures, s. 18, EPA
Tribunal: EAB
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The applicants sought leave to appeal
the decision to issue an Order for preventative measures to Norampac
Inc., that requires the company to eliminate the use of Dombind
as a dust suppressant over a period of time. The grounds for seeking
leave included: the Order doesn’t ensure that the use of Dombind
as a dust suppressant will be phased out by the end of the year
2000 or that the terms and conditions regarding the application
of Dombind as a dust suppressant on roads will be adequately enforced.
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The EAB granted the leave to appeal application for one of the
stated grounds - whether the requirements and conditions for the
application of Dombind as a dust suppressant as set out in the
MOE Order provide an adequate means of enforcement. Leave to
appeal on all other grounds was denied.
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Leave to appeal granted in part:
August 27, 1999
Final decision: October
20, 1999
The EAB accepted the minutes of settlement signed by the parties
and dated September 23, 1999, and ordered that Appendix I to the
Director’s Order be deleted and replaced with the conditions agreed
to by the parties. Any remaining issues raised by the appeal
were dismissed.
In the settlement, the parties agreed on the
requirements and conditions for the application of Dombind dust
suppressant, including the following: Dombind, mixed or blended
with wastes, shall not be applied without a C of A; any Dombind
containing greater than 5 parts per million of polychlorinated
biphenyls (PCBs) shall not be applied as a dust suppressant; Dombind
shall not be applied to any point which is within 50 metres of
any water or watercourse or within 15 metres of a water well;
and Dombind shall not be applied in such a manner that could result
in its deposit, either directly or indirectly, into waters frequented
by fish.
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Registry #IA9E0487
Applicants:
Walter Schneider et al.
Ministry:
MOE
Proponent:
Clublink Capital Corporation
Date of Application:
July 13, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicants sought leave to appeal the decision
to issue a PTTW allowing a change in the
allowable water taking from Hamer Bay of Lake Joseph to increase
from 120,000 to 3.4 million litres per day. The grounds
for seeking leave included: there was no condition
of approval that ClubLink adhere to its own proposed construction
techniques and operation protocols; and the failure to require a monitoring
program as a condition of approval of the PTTW.
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The EAB granted the leave to appeal application on the grounds
that the Director failed to impose conditions that would prevent
certain water quality impacts that might result from the irrigation
of the proposed golf course. The EAB accepted the applicants’
submission that the Director should apply an ecosystem approach
and attempt to prevent pollution in order to protect, preserve
and sustain the province’s water resources. The EAB also found
that there is the potential for significant harm to the environment.
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Appeal was granted: August 31, 1999
Appeal withdrawn: December
13, 1999
The applicants withdrew the appeal after negotiating a settlement
with the Ministry of Environment and the Clublink Corporation.
The proponent’s related C of A for sewage works was amended to
ensure that the water quality monitoring program encompassed the
possible adverse impact from the run-off from the golf course.
Also, a condition was added to the PTTW requiring ClubLink to
comply with the water monitoring conditions of the sewage works
CofA.
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Registry #IA8E1260
Applicants:
Madeline Gilbertson et al.
Ministry:
MOE
Proponent:
Pickerel Lake Cottage Association
Date of Application: July 20, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicants sought leave to appeal the decision to permit
the Pickerel Lake Cottage Association to construct a dam designed
as a passive water control structure that will regulate water
levels using a spillway structure with no active control. The
grounds for seeking leave included: the likelihood
that downstream lake levels will be adversely affected; the possibility that the higher lake level
will result in the release of mercury and greenhouse gases;
and possible adverse effects for downstream fish habitat.
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The EAB denied the application for leave to appeal because it
was not received within the 15-day time period set out under section
40 of the EBR. The EAB indicated that, had the application
been submitted within the required time limit, it would have found
that the Applicants did not establish that the Director failed
to act in a reasonable manner with regard to the relevant law
and to any government policies developed to guide decisions of
this kind, nor was there any basis to suggest that the decision
could have resulted in significant harm to the environment.
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Leave to appeal denied:
August 20, 1999
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Registry #
IA8E1600
Applicants:
Sylvanus General et al.
Ministry:
MOE
Proponent:
Canadian Gypsum Company Limited (CGC)
Date of Application: October 15, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicants sought leave to appeal the decision to issue a
PTTW to CGC for industrial processing and mine dewatering. The
grounds for seeking leave included: widespread environmental impacts
arising from previous PTTWs issued to the CGC; CGC’s non-fulfilment
of the conditions precedent for renewing the PTTW; and the PTTW
was issued without complying with Part II of the EBR regarding
public notice and comment. The applicants alleged that there
were two Registry notices in relation to this PTTW and that they
presented inconsistent information and comment periods.
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The EAB denied the application for leave to
appeal on the following grounds: the applicants did not provide
sufficient supporting data; granting leave to appeal would only delay
the removal of potentially contaminating materials from the West
Mine; the effect of the PTTW would
be to restore the natural environment, which would be in keeping
with the objectives of the EBR; and that the applicants failed
to show that the PTTW would have a significant impact upon the
present levels of the groundwater aquifer, water levels in the
Boston Creek, or the stability of land in the area. The allegation
concerning non-compliance with Part II of the EBR was not
dealt with in the EAB’s decision.
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Leave to appeal denied: December
20, 1999
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Registry #IA9E0144
Applicants:
Brian Felske et al.
Ministry:
MOE
Proponent:
Artemesia Waters Ltd.
Date of Application:
October 19, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicants sought leave to appeal the decision to issue a
PTTW to Artemesia Waters Ltd. for commercial water bottling and
distribution. The grounds for seeking leave included: the OWRA
was inconsistent with section 92A of the Constitution Act, 1867;
the PTTW may adversely affect downstream riparian owners; there
were technical inadequacies in the proponent’s studies; and an
ecosystem approach was not taken.
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The EAB denied the application for leave to
appeal on the following grounds: the provinces and the federal government have shared jurisdiction
over water and the OWRA is a valid law;
the decision cannot be construed as being
in conflict with the moratorium announced by the minister; the
Director made a reasonable decision with the information available
and added two conditions to the PTTW to protect the water supply
and the natural environment; and MOE ensured environmental
protection. The EAB noted that the ecosystem approach is still
being incorporated into MOE’s decision-making processes and expressed
hope that MOE will take note of the importance of its Statement
of Environmental Values in evaluating all undertakings that fall
under its jurisdiction.
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Leave to appeal denied: December 17, 1999
On January 13, 2000, the ECO received a letter from one of the
applicants requesting a review of perceived errors in the EAB’s
decision. On January 28, 2000, the EAB issued supplementary reasons
clarifying, but not changing, its decision.
See related sections 4.1 and 7 in the main report.
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Registry #IA9E0375
Applicant:
Alex Kolodziejski
Ministry:
MOE
Proponent:
Mansfield Ski Club Inc.
Date of Application:
December 28, 1999
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicant sought leave to appeal the decision to issue a
PTTW to Mansfield Ski Club Inc. The grounds for seeking leave
included: the impact of the increased water taking on previous
existing adjacent agricultural land use and subsequent financial
losses; the ecosystem principle was not taken into account; and
water interference for other users.
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The EAB granted the leave to appeal
application on the ground that there exists a potential for significant
harm to the environment, in particular the Pine River, due to
the runoff which is affecting the quality and quantity of the
water in the Pine River.
After a hearing in March, the Board denied the appeal. The Board
noted that the appeal highlighted issues of drainage from the
exposed ski hills, as well as the possible vulnerability of the
Pine River in the runoff area from the Mansfield Ski Club. The
Board found, however, that the appellant had not demonstrated
with any solid information that the melted snow runoff had been
detrimental to the quality of water in the Pine River, either
intrinsically or as a habitat for a coldwater fishery. The Board
also found that new storm drainage measures, initiated in 1998,
showed every promise of providing effective control of flooding
and sedimentation of the Pine River.
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Leave to appeal granted: February 14, 2000
Appeal denied: April
5, 2000
Reasons were issued by the Board on April 28,
2000.
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Registry #IA9E1088
Applicant:
Carmen D’Angelo, Community Liaison Committee for the Taro East
Landfill
Ministry:
MOE
Proponent:
Philip Enterprises Inc.
Date of Application:
February 8, 2000
Instrument: CofA, s. 27, EPA
Tribunal: EAB
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The applicant sought leave to appeal the decision to amend the
CofA for the proponent’s waste transfer and processing site.
The grounds for seeking leave included the following: the more
stringent restrictions on waste stabilization and disposal announced
by MOE should be imposed on this CofA; the CofA should be withdrawn
until the independent expert panel that is to be established has
investigated the Ecosafe process for stabilizing hazardous waste;
and the CofA should be withdrawn pending a decision on a proposed
regulation that will affect the Ecosafe process.
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The EAB denied the application for leave to appeal on the following
grounds: the applicant failed to provide any valid evidence that
no reasonable person could have made the decision, and that the
decision could cause significant harm to the environment; and
the applicant provided no evidence that the Director’s actions
in issuing the CofA were contrary to his responsibilities under
the EPA or the EBR. Also, the applicant did not
abide by the EAB’s Rules of Practice and Procedure.
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Leave to appeal denied: March
8, 2000
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Registry #IA9E1353
Applicant:
The Concerned Citizens of Haldimand, Incorporated
Ministry:
MOE
Proponent:
1340152 Ontario Inc.
Date of Application:
February 24, 2000
Instrument: PTTW, s. 34, OWRA
Tribunal: EAB
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The applicant sought leave to appeal the decision to issue a
PTTW to the proponent for commercial water bottling. The grounds
for seeking leave included: this community is experiencing water
shortages; MOE does not have sufficient data on environmental
impacts in the community and is relying on the proponent’s data;
MOE is unable to ensure ecosystem integrity; and MOE has failed
to ensure riparian rights to land owners affected.
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The EAB denied the application for
leave to appeal on the following grounds: the Director showed
that the proposed well is not located in the Oak Ridges Moraine
Aquifer, and that the area of water taking is not drained by Cold
Creek and the associated provincially significant wetlands; and
the surface waters are not affected and the safeguard provisions
of the 1 year permit ensure continuity of water supply.
The Registry notice of the C of A was misleading because it referred
to 2 wells taking water for 10 years, as the applicant had requested.
However, the actual CofA issued was for 1 well taking water for
1 year. The EAB noted that the applicant may have been misled
by “the ambiguity of the EBR Registry listing – the regrettable
and inexcusable lack of transparency....”
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Leave to appeal denied: April
10, 2000
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Registry #IA00E0311
Applicant: Garofalo Brothers Construction Ltd.
Ministry: MOE
Proponent: 901612
Ontario Ltd. o/a Pat Rogers Towing
Date Application received by ECO: May 9, 2000
Instrument: Certificate of Approval (C of A) (Air), s.
9, EPA
Tribunal: Environmental Review Tribunal (ERT)
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The applicant sought leave to appeal the decision to grant a
C of A permitting 901612 Ontario Limited o/a Pat Rogers Towing
to operate a mobile metal shearing machine and a crusher in conjunction
with the recycling of motor vehicles. The grounds for seeking
leave to appeal included: the noise level created by the operations
of the proponent would result in significant environmental harm
to the applicant, who owns residentially zoned land immediately
adjacent to the westerly boundary of the proponent’s property;
the applicant is also proposing to redevelop its lands to the
south of the proponent’s property as a subdivision.
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Leave application withdrawn.
The applicant was involved in an Ontario Municipal Board Hearing
which was related to the issuance of a certificate of approval
to 901612 Ontario Limited. The Ontario Municipal Board matter
was settled and as part of the settlement the applicant agreed
to withdraw its application for leave to appeal.
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Leave application withdrawn:
May 29, 2000
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Registry #IA9E1791
Applicants: Mr.
and Mrs. Anthony Maddaloni
Ministry: MOE
Proponent: Photech
Environmental Solutions Inc. Date Application received by
ECO: June 30, 2000
Instrument: C of A (Waste Disposal Site), s. 27, EPA
Tribunal: ERT
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The applicants sought leave to appeal the decision
to issue a C of A to Photech Environmental Solutions Inc.
to operate a waste disposal site for the processing of industrial
hazardous and non-hazardous waste. The grounds for seeking leave
to appeal included: use of land does not conform to zoning by-law;
failure of proponent to comply with a previous C of A; slow emergency
response times for residential properties located near the subject
site.
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The ERT denied the leave to appeal
application on the following grounds: it
is the municipality’s responsibility to ensure that its zoning
by-law requirements are met by Photech, not the Director’s; there is no evidence to substantiate the possibility that significant
environmental harm may result from the issuance of the C of A
to Photech; there was no risk associated with the response time
of the fire department; the terms of the C of A indicate a rigorous
regime of regulation.
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Leave to appeal denied: August
10th, 2000
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Registry # IA00E0427
Applicants: Carol
S. Dillon and Melvyn E.J. Dillon; The Council of Canadians; Ken
McRae;
Michael Cassidy and Maureen Cassidy;
Eileen Naboznak; Barbara Zents and Ray Zents; Anne German;
Kathleen Corrigan
Ministry: MOE
Proponent:
OMYA (Canada) Inc.
Date Application received by ECO: September 6, 2000
Instrument: Permit to Take Water (PTTW), s. 34, OWRA Tribunal:
ERT
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The applicants sought leave to appeal the decision
to issue a PTTW allowing a change in the allowable water taking
from the Tay River to increase to 4,500 m3/day by the year 2009.The
grounds for seeking leave included: the Director failed to protect
the quality of the natural environment, and foster the efficient
use and conservation of resources, by granting permission to take
more water than the proponent requested; the Director based his
decision on insufficient data; lack of independence in the important
functions of study, recording, and monitoring; the Director failed
to follow the Ministry of the Environment’s Statement of Environmental
Values.
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The ERT granted the leave to appeal
application on the grounds that it was not reasonable for the
Director to issue a PTTW for the taking of water in the absence
of sufficient, pertinent data on the Tay River watershed. The
ERT found that the absence of this information creates a degree
of uncertainty about impacts on the aquatic habitat of the Tay
River which raises the possibility of significant harm to the
environment.
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Appeal still pending.
Leave to appeal granted: November 6,
2000
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Registry # n/a (although
required by s. 22 of the EBR, the MOE failed to post this
Class III instrument on the Registry)
Applicants:William
M. Oates and Tucker Creek Limited (TLC)
Ministry: MOE
Proponent:
Imperial Oil
Date Application received by ECO:
November 15, 2000
Instrument: C of A, s.53, OWRA
Tribunal: ERT
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The applicants sought leave to appeal the decision
to issue a C of A to Imperial Oil for a sewage works for treatment
and disposal of 150,000 litres per day of wastewater. The applicants
own property adjacent to that of Imperial Oil and are concerned
over the lack of limits to the volume of discharge of specific
contaminants into the ground, and the possibility of effluent
ponding on TLC property.
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The ERT denied the leave to appeal
application on the grounds that the application was filed outside
its jurisdiction. The instrument which is the subject of this
application is a Class III instrument under the EBR. Therefore,
it is not an instrument for which leave to appeal may be sought
under s. 38 of the EBR.
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Leave to appeal denied:
January 19, 2001
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Registry IA00E1460
Applicants: Colin
Heard and Peter Jordan
Ministry: MOE
Proponent:
Cavanagh Construction Ltd.
Date Application received by ECO: January 24, 2001
Instrument: OWRA s. 34 - PTTW
Tribunal: ERT
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The applicants sought leave to appeal the PTTW
on the grounds that the Director did not give due regard to the
potential impacts of the water-taking off-site in accordance with
the ecosystem approach. Moreover, the Director failed to take
into account the inadequacies of the Proponent’s hydrogeological
study. All in all, the information available to the Director was
inaccurate, incomplete, and inadequate.
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The Tribunal denied the leave to appeal application
because the Director demonstrated through expert engineering evidence
that a water supply aquifer does not exist above the bottom of
the quarry. The concern with regard to the wuality of the water
discharged were met by evidence of low phosphorous levels and
nitrate levels below limits. In addition, the PTTW requires monitoring
of the discharge levels.
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Leave to appeal denied:
March 1, 2001
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Registry IA00E1113
Applicants: Robert
Burton
Ministry: MOE
Proponent:
Sithe Energies Canadian Development Ltd.
Date Application received by ECO: February 8, 2001
Instrument: s. 9 - EPA Approval for discharge into
the natural environment other than water (i.e. air)
Tribunal: ERT
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The applicants appealed the approval of the
permit on the basis that the general level of air pollution in
the Metro Toronto area would be increased by approximately 1%
if the proponent’s generating stations are licensed. There is
no demonstration of need for the plant in the Proponent’s application
or in the approval. Finally, the Proponent is an American company,
which is required to restrict emissions on similar generating
stations that it operates in American jurisdictions to levels
of at least half of those permitted in the approval.
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The Tribunal held that the Director’s decision was reasonable
having regard to the relevant law and policies of the government
of Ontario and denied the leave to appeal application. They stated
that there is no requirement in Ontario legislation to demonstrate
the need for the facility. The Environmental Assessment Act has
been amended to exclude the requirement that need be demonstrated.
Furthermore, evidence submitted to the tribunal was that the emissions
were well below the limits allowed under current Ontario legislation
and regulations and the regulations of other jurisdictions are
not relevant.
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Leave to appeal denied:
March 9, 2001
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