I - rtr2.pdf · after recezpt ofthis iVotice, require a hearing by the Tribunal. Section 142 ofthe...

Ministry Ministère AMENDMENT TO PROViSIONAL CERTIFiCATE OF APPROVALof the de W4STE DISPOSAL SITEEnvironment l’Environnement NUMBER Al 10302

Notice No. 4Issue Date: January 9, 2007Ontario

Haldimand-Norfolk Sanitary Landfill inc.6435 Dixie Rd. No. 30Mississauga, OntarioL5T 1X4

Site Location: Edwards Landfill SiteLot 24, Concession I NTR, N. CayugaHaldimand County,

You are hereby tiotqied that I have amended Provisional Certificate ofApproval No. Al 10302 issuedon July 10, 1980 as subsequently amended August 22, 2002, May 5, 2004 and February 10, 2005 fr theoperation of a Waste Disposal Site, consisting of 6 hecrares (15 acres) waste fill area within a total Site area of12.4 hectares (30.6 acres) , as follows:

AMENDMENT TO QTJCE #3 DATED FEBRUjjj0 2005

Pursuant to an Order of the Environmental Review Tribunal in file No, 05-026, dated November 22, 2006,Notice #3 dated February 10, 2005 is hereby amended in accordance with the fflowing documentation whichare added to Schedule “A and form part of the Provisional Certificate of Approval A032014, and subject to thefollowing terms and conditions:

Documentation

15. Report entitled “Geotechnical investigation - Brooks Road Assessment, 1-laldirnand County, Ontario”, datedMarch I 8, 2005, prepared by inspec-Sol Inc.

16. Letter received July .8, 2005, from Edward WW. Martin, Haldimand County, to Donald C. Campbell,Conesioga-Rovers & Associates, regarding Ha!dimand County, Engineering Division staff comments onreport entitled “Geotechnical investigation on Brooks Road Assessment, Haldimand County, Ontario”,dated March 18, 2005 (Document #15 above).

17. Letter dated August 17, 2005, from Donald C. Campbell, Conestoga-Rovers & Associates, with attachedletter dated August 17, 2005, from Hassan Gilani and Bruce Polan, Inspec-Sol Inc.. to Edward W. Martin.Manager, Environmental Services Division, Haldimand County, accepting Haldirnand County staffrecommendations in the letter received July 1 8, 2005, above.

Page 1 - NUMBER A 110302

Terms and Conditions

Condition 19 of Notice 3 dated February i 0, 2005 is hereby amended b increasing the daily fil rate, such thatthe new Condition 19 reads as follows:

19, The maximum rate at which the Site may receive waste shall he 500 tonnes per day, and shall consist ofInstitutional, Commercial and Industrial (ICI) solid non-hazardous waste.

Condition 96 of Notice /3 dated February 10. 2005 is hereby revoked and replaced with the following condition:

96, Prior to the acceptance of waste at the Site, the Owner/Operator shall:

(a) apply a 300 mm thick granular “Afl layer of gravel, meeting all applicable Ilaldimand County andOntario Provincial Standards Specification (OPSS) to the ‘Improvement Area’ which is that area ofBrooks Road, between highway #3 (also known as Talbot Road) and Townline Road:

(b) provide an initial double surface treatment to the improvement Area’ meeting OPSS;

(c) pave the entranceway/exit to the landfill and th.e parking area for the landfill Site, as well as 30 metresof the road approach on Brooks Road to the eniranceway/exit to the Site, extending both north andsouth of the entranceway/exit, in base asphalt and top coat. The thickness of asphalt shall he a basecoarse of 60 mm (I-1L8). and a surface coarse of 50 mm (I-1L3);

(d) comp!v with an agreement dated November 27, 2006, between the Owner/Operator arid theHaidimand County, with respect to maintenance and remedial work to the Improvement Area’.

Condition 97 of Notice #3 dated February 10, 2005 is hereby revoked and replaced with the following condition:

97. The Owner/Operator shall ensure that vehicles carrying waste or materials to and florn the Site shall onlyiravel along Haldirnand County Road #56 and Highway #3. This condition does not apply to vehicles thattransport Institutional, Commercial and Industrial (ICI) waste that has been collected only withinJ-laldimand County and west of Brooks Road, provided that the Owner/Operator shall ensure that at no timeshall any vehicle carrying waste or materials to and from the Site travel along Townline Road to access theSite.

Page 2 - NUMBER Al 10302

The reasons Jor this’ amendment to the Certificate of Approval No. 41 10302, are asji//ows’:

1. This Notice of Amendment is issued as directed by an Order of the Environmental Review Tribunal in fileNo, 5-026 c/alert November 22, 2006.

2. The reasons for Cond Won 19 are to specify the maximum rate at which this Site may receive waste, basedon the Owners apphcatiori and supporting documentation; and to ensure that only Institutional,Commercial and industrial solid non-hazardous waste is received and deposited at the Site.

3. The reason for Condition 96 is to ensure that public road servising the Site (described as “improvementArea’) meets the applicable standards, Condition O also ensures that the “improvement Area’ ismaintained regularly as per agreement between the Owner/Operator of the Site and 1-laldirnand County.

4. The reason for Condition 97 is to ensure that truck traffic impact on the immediate local community islimited to th’existing main roads.

This Notice shall constitute part of the approval issued under Provisional Certificate ofApproval No. A110302 dated July 10, 1980

In accordance with Sectton 139 of the En vironinenta/ Protec lion Act, R. 5.0. 1990, Chapter E-1 9, asamended, you may by written notice served upon inc and the Environmental Review Tribunal within 15 claysafter recezpt ofthis iVotice, require a hearing by the Tribunal. Section 142 of the Environmental Protection

provides that the Notice requiring the hearing shall state:

I. The portions oithe approval or each term or condition in the approval in respect of which the hearing is rentored, and;2. The grounds on which you niend to reiy at the hearing in relation to ch portion appealed.

The Notice should also include.’

3. The namc of the. appellant;4. The address ot the appellant;5. The Certificate of Approval number;6. The date of the Certificate of Approval;7. The name of the Director;

8. The municipality within which the waste disposal site is located;

And the Notice should he signed and dated by the appellant.

Y’his Notice must he served upon:

The Secretary’ The DitcetorEnvimn mental Review l’rihinal Section 39. Lii, iironmeniat Prtcnon Act2300 Yonge St., Suite 70O Ministry of the EnvironmentP.O. Box 2382 2 St. Clair Avenue We,, Fioor ) 2Aroronto. Ontario Toronto, OntarioM4P i4 M4V 1L5

Further information on the Environmental Review Tribunal’s requirements for an appeal can be obtained directly fromthe

‘Uribtmni at; ‘I’d: (416) 314-4600. Fax; (416) 314-45(16 or WWW.ert.uV.Otl.Ca

Page 3 - NUMBER Al 10302

The above noted waste disposal site ic approved tinder Section 39 a/the InviroiiinentaI Protection Act,

DATED AT TORONTO this 9th day of January, 2007

Ian Parrott, PJE.ng.DirectorSection 39, Environmental Protection Act

DO/C: District Manager, MOE Hamilton - District

Frank CampbeH, Haldirnand—Norfoik Sanitary Landt5 II Inc.

Page 4 NUMBER Al 10302

Ministry Ministére AMENDMENT TO PROWSIONAL CERTIFICATE OF APPROVALof the de WASTE DISPOSAL SITEEnvironment I’Envlronnement NUMBER A 110302

CO Notice No. 5Issue Date: July 19, 2007Ontario

Haldimand-Norfolk Sanitary Landfill Inc.6435 Dixie Road, No. 30Mississauga, OntarioL5T 1X4

Site Location: Edwards Landfill SitePart of Lot 24, Concession 1, NTRHaldimand County.

You are hereby notfied that I have amended Provisional Certificate ofApproval Na. Al 10302 issuedon July 10, 1980, as subsequently amended for a waste disposal Site, consisting of 6 hectares (15 acres)waste fill area within a total site area of 12.4 hectares (30.6 acres) , as follows:V

1. UPDATED FINANCIAL ASSURANCE

Pursuant to Condition 81 of the Certificate, the updated financial assurance is hereby incorporated in theProvisional Certificate of Approval No. Al 10302, to reflect the financial assurance required based oncurrent economic factors, as provided in a letter dated March 31, 2005, from CRA to the Ministry of theEnvironment, listed as Item 18 in Schedule “A”, attached to this Certificate;

2. SCHEDULE OF PAYMENT FOR FINANCIAL ASSURANCE

Schedule “B3” of the Certificate dated May 5, 2004, is hereby revoked and replaced with a revisedSchedule “BY’ attached to this Certificate. The revised Schedule “BY’ sets out a new schedule ofpayment for the Financial Assurance;

all in accordance with the documentation listed below and subject to the terms and conditions in this Certificate.

Documentation

The following documentation is included in Schedule “34” andforms part of the Certificate No. A110302:

18. Letter dated March 31, 2005, from Thomas Kolodziej, P. Eng., CRA to Ian Parrott, Ministry of theEnvironment, Re; Financial Assurance Update, Condition 81, Certificate of Approval No, Al 10302,Edwards Landfill Site, 160 Brooks Road, Cayuga, Ontario.

Page 1 -NUMBER A110302

COPY19. Letter dated March 21, 2007, from Gregory D. Ferraro, P. Eng., CR.A to the Director, Section 39, EPA,

Ministry of the Environment, Re: Condition 56, Certificate ofApproval No. Al 10302, Edwards LandfillSite, 160 Brooks Road, Cayuga, Ontario.

20, Documentation entitled “Edwards Landfill Site Public Liaison Committee, Terms of Reference”,Reference: CRA18235TofROctO4

Conditions

Condition 30 ofNotice #3 dated February 10, 2005 is hereby amended by adding the following:

Within thirty (30) days of Stage 1 becoming available to receive waste, the Owner/Operator shall submit tothe District Manager a detailed schedule for the excavation of the existing waste, which excavation shallcommence no later than November 1,2007. By the end of the first week of each calendar month, theOwner/Operator shall submit to the District Manager, a monthly status report regarding the activities on thedevelopment, decommissioning and operation of the site, with the first status report due by July 27, 2007,until the excavation of the existing waste is fully completed.

2. Condition 56 of the Certificate is hereby revoked and replaced with a new Condition 56 as follows:

56. By June 30, 2008, the Owner/Operator shall develop a comprehensive Compliance and TriggerLevel Monitoring Program, based on the surface water, groundwater and leachate databaseestablished for the Site. The program shall be submitted to the Director for approval.


78. An updated financial assurance in the amount of $7,582,482.00 as specified in a letter entitled“Financial Assurance Update”, Item 19 in Schedule “A” attached to this Certificate, shall beprovided by the Owner/Operator to the Director, in a form and manner acceptable to the Director.This amount shall be sufficient to pay for compliance with and performance of any actionspecified in this Certificate of Approval, including the closure and postc1osure care of the Site andcontingency plans for the Site, as required in the Ministrs Landfill Standards Guideline, Sections5.1.1 and 5.2.1.


80, (a) The financial assurance may be provided in stages, as per the revised Schedule “B3”attached to this certificate, as long as the amount that has been provided is always greaterthan the minimum amount determined in accordance with the formulae given inSchedules “BI” and “B2” attached to this Certificate and based on the Ministry’s LandfillStandards Guideline, as amended. By January 31 of each year, the Owner/Operator shallprovide to the Director, the financial assurance due as per the revised Schedule “B3”,with the first stage amount of $606,599 .00 for year 2007, payable within 30 days prior to•receiving waste at the Site, but no later than six (6) months of the date of this Certificate.

Page 2 -NUMBER Al 10302

(b) By January 31 of each year, the Owner/Operator shall provide to the Director, copy to theDistrict Manager, the estimation of costs and the amount of financial assurance as perSchedules “B 1” and “B2”, for the end of the preceding calendar year, to confirm thefinancial assurance amount posted as per the revised Schedule “B3”, in advance of thatyear. Any short fall of the minimum amount determined from Schedules “Bi” and “B2”,shall be provided to the Director forthwith.

PUBLiC LIAISON COMMITTEE (PLC)


86. The Owner/Operator shall forthwith, establish, maintain and participate in a landfill PLC, whichshall function in accordance with the Terms of Reference for the PLC, as amended from time totime, listed as Item 20 of Schedule “A”, attached to this Certificate. Any amendment to the Termsof Reference must be approved by the District Manager. The PLC shall serve as a forum fordissemination, consultation, review and exchange of information regarding the operation of thelandfill Site, including environmental monitoring, maintenance, complaint resolution, and newapprovals or amendments to existing approvals related to the operation of this landfill Site.


87. The Owner/Operator shall invite representation from the following groups to participate on thePLC:

(a) the County of Haldimand;(b) Haldimand Against Landfill Transfer (HALT);(c) Six Nations of the Grand River;(d) landowners within a minimum 500 metre distance of the Site;(e) residents of Haldimand County and(1) Lower Grand River Land Trust.

The number of representatives from each group shall be as specified in the Terms of Referenceapproved by the District Manager.

Thefoliowing new condition is hereby added to the Cernflcate

99. (a) The Owner/Operator shall reimburse the Crown for costs incurred by the Crown to retain adedicated Provincial Officer who will function as an Environmental Inspector for the Site forthe duration of the decommissioning activities at the Site. The Terms of Reference for theEnvironmental Inspector shall be determined on an annual basis by the Regional Directorfollowing consultation with the Owner/Operator. The Terms of Reference shall, as a minimum,specify the following:

i. the duties of the Environmental Inspector;

Page 3 -NUMBERAI1O3O2

COINii. the annual costs of the Environmental Inspector;

iii. any support equipment or facilities such as office space, telephone equipment required tocariy out the the required duties;

iv, the work hours of the Environmental Inspector.

(b) After the decommissioning activities have been completed, the Regional Director may exercisehis/her discretion to reduce the number of hours per week that the Environmental Inspector isrequired.

(c) A copy of the Terms of Reference shall be provided to the PLC.

Page4-NUMBERA1IO3O2

copyREVISED SCHEDULE “B”

This revised Schedule NB” forms part of Provisional Certificate of Approval No. Al 10302 dated October 7,1980, as amended August 22, 2002, and as subsequently amended by this Notice.

FINANCIAL ASSURANCE

B.1 Closure & Post-Closure Care

A = B x (C/D)

where,

A the minimum amount of financial assurance that must be provided for closure andpost-closure care;

B = the total amount of financial assurance expressed as the present value at theestimated date of closure, in dollars current at that date, of an amount sufficient tocover the estimated costs for,

(a) the planned closure of the largest area that will require final cover at anyone time during the operation of the Site, including the costs of final coverand landscaping;

(b) care and maintenance of the fmal cover and landscaping for thecontaminating life span of the Site; and

(c) all other expected post-closure care activities for the contaminating lifespan of the Site, including monitoring, analysis and reporting, the design,construction, operation, maintenance and replacemcnt of engineeredfacilities and the disposal of wastes from the facilities, but not includingany additional activities in the contingency plans for the Site.

C the cumulative amount of waste that has already been deposited at the Site; and

D the total amount of waste that will be deposited at the Site pursuant to theconditions in this Certificate of Approval.

B.2 Contin2encv Plans

F = $0.50 x W x (12/11)

where,

Page 5 -NUMBERAIIO3O2

COPY’F = the amount of the financial assurance for contingencies;

W the cumulative number of tonnes of waste that have been deposited in thelandfihling Site at the time the amount of financial assurance is calculated;

Ii = the 1997 Annual Average Non-Residential Building Construction Price Index forToronto, determined with reference to the same base year as is applicable to 12, aspublished by Statistics Canada under the authority of the Statistics Act (Canada);and

12 = the most recent Annual Average Non-Residential Building Construction PriceIndex for Toronto available at the time the amount of the financial assurance iscalculated, as published by Statistics Canada under the authority ofthe Statistics Act(Canada).

Revised B.3 Schedule of Payment for Financial Assurance

YEAR TOTAL ANNUAL ACCUMULATEDFINANCIAL ASSURANCE AMOUNT

2007 $606,599.00‘ 2008 $1,148,746.00

2009 $3,317,336.002010 $5,485,926.002011 $7,582,482.00

The reason(s) for this amendment to the Certificate of Approval is (are) as follows:

1. The reason for the amendment to Condition 30 is to provide specific timelines and monitoring on theactivities carried out at the site, all for the benefit of the environment.

2. The reason for the amendment to Condition 56 is to allow re-commencement of landfill activities toestablish sufficient database from the updated design and operating conditions of the site.

3. The reasons for the amendment to Conditions 78 and 80 are to update the fmancial assurrance for the Site toreflect the variations in the amount required based on current economic factors, and to set new paymentschedule for the financial assurance to replace the lapsed schedule, The financial assurance must besufficient and up-to-date to pay for compliance with and performance of any action specified in theCertificate.

4. The reason for the amendment to Conditions 86 and 87 is to clarify statements in the conditions.

5. The reason for Condition 99 is that it is in the public interest to require the provision of a dedicatedinspector during the Site decommissioning and remediation activities.

Page 6 -NUMBER A110302

COPYThis Notice shall constitute part of the approval issued under Provisional Certificate of

Approval No. A110302 dated July 10, 1980

In accordance with Section 139 ofthe Environmental Protection Act RS.O. 1990, Chapter E-19, asamended you may by written notice served upon me and the Environmental Review Tribunal within 15 daysafter receipt of this Notice, require a hearing by the Tribunal. Section 142 of the Environmental Protection

provides that the Notice requiring the hearing shall state:

1. The portions of the approval or each term or condition in the approval in respect of which the hearing is required, and;2. The grounds on which you intend to rely at the hearing in relation toaj portion appealed.

The Notice should also include:

3. The name of the appellant;4. The addiess of the appellant;5. The Certificate of Approval number;6. The date of the Certificate of Approval;7. The name of the Director;8. The municipality within which the waste disposal site is located;

And the Notice should be signed and dated by the appellant.

This Notice must be served upon:

The Secretary* The DirectorEnvironmental Review Tribunal Section 39, Environmental Protection Act2300 Yonge St., Suite 1700 Ministry of the EnvironmentP.O. Box 2382 ANQ 2 St. Clair Avenue West, Floor 12AToronto, Ontario Toronto, OntarioM4P 1E4 M4V 1L5

* Further information on the Environmental Review Tribunal’s requirements for an appeal can be obtained directly from theTribunal at: Tel: (416) 314-4600, Fax: (416) 314-4506 or www.ert..gov.on.ca

The above noted waste disposal site is approved under Section 39 ofthe Environmental Protection Act.

DATED AT TORONTO this 19th day of July, 2007

•

_

Ian Parrott, P.Eng.DirectorSection 39, Environmental Protection Act

DO!C: District Manager, MOE Hamilton - District

Thomas Kolodziej, Conestoga Rovers & Associates

Page7-NUMBERA11O3O2

JUN 2 32005

Environmental ReviewTribunal

Case Nos.: 04-156104-157

Before:

Anne Vallentin on behalf of Haldimand Against Landfill Transfers(HALT) and Six Nations of the Grand River v. Director,

Ministry of the Environment

In the matter of applications for leave to appeal by Anne Vallentin on behalf ofHaldiniand Against Landfill Transfers (HALT) and Six Nations of the GrandRiver pursuant to s. 38 of the Environmental .Bill ofRights, 1993, S.O. 1993,c.28 as amended, with respect to a decision of the Director, Ministry of theEnvironment, under s. 39 of the Environmental Protection Act, to issue anamended Provisional Certificate of Approval No. 110302, Notice No.3, datedFebruary 10, 2005 to Haldimand-Norfolk Sanitary Landfill Inc. to increase therate of fill at the Edwards Landfill Site located at Part of Lot 24, Concession 1,NTR, on the east side of Brooks Road, in Haidimand County, Ontario; and

In the matter of a written bearing.

Appearances:

Toby Vigod, Chair

John TidballAaron Detlor

Melissa McDonaldDavid Rubin

- Counsel for the Applicant, Anne Vallentin- Counsel for the Applicant, Six Nations of the Grand River- Counsel for the Director, Ministry of the Environment- Counsel for the Instrument Holder, Haldimand-Norfolk Sanitary

Landfill Inc.

Dated this 21’ day of June, 2005.

Environmental Review Tribunal Decision: 04-156/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

Reasons for Decision

Background:

On February 28, 2005, Anne Vallentin on behalf of Haldimand Against Landfill Transfers(“Vallentin”) and on March 1, 2005, Six Nations of Grand River (“Six Nations”) applied to theEnvironmental Review Tribunal (“the Tribunal”), under section 38 of the Environmental Bill ofRights, 1993 (“EBR”), for leave to appeal the February 10, 2005 decision of the Director, IanParrott, Ministry of the Environment (“MOE”). The Director decided, pursuant to section 39 ofthe Environmental Protection Act (“EPA”), to issue an amended Provisional Certificate ofApproval Al 10302 (“CofA”), Notice No. 3, to Haldimand-Norfolk Sanitary Landfill Inc.(“IINSLI”) to increase the rate of fill at the Edwards Landfill Site located at Part of Lot 24,Concession 1, NTR, East Side of Brooks Road, Haldimand County, Ontario (“the Site”) TheNotice ofDecision for an Instrument was posted on February 14, 2005, under ERR RegistryNumber 1A04E0887.

The Site is owned by HNSLL The total Site area is 12.4 hectares (30.6 acres) of which sixhectares (15 acres> is approved for landfihling. The Site is located on Brooks Road, north ofHighway 3, immediately east of Cayuga, in a rural area of Haldimand County. It is surroundedby privately owned, undeveloped rural lands.

The Site was an unregulated “dump” from approximately 1959 until 1971 when environmentallegislation was first enacted by the province requiring regulatory approval ofwaste disposalsites. The first approval for the Site was issued on April 22, 1971 to Norman Shropshall. OnFebruary 14, 1974, the ColA was re-issued in the name of HNSLI, after it incorporated. The Sitewas authorized to receive 10 tons (9.07 tonnes) ofwaste per day. This daily waste consisted of95% domestic, 2% non-hazardous solid industrial waste and the remaining waste being limited tomiscellaneous debris and 0.25% processed organic waste. There were minimal conditions put onthe approval, as was the common practice of that time. No volumetric capacity of the Site wasindicated in the approval.

The approval was subsequently re-issued several times throughout the 1 970s, with the lastapproval being issued without an expiry date on October 7, 1980. The Site received wasteregularly from 1959 until 1977 and then intermittently after that date. The ownership ofHNSLIpassed to the current owners sometime in 2001. The current proponent bought the property touse the remaining volumetric capacity by recommencing regular waste deposit at the Site,

2


The Site contains over 50,000 cubic metres of waste. 3etween 7,600 and 15,000 cubic metresare estimated to be liquid industrial or hazardous waste. The waste is sitting in unlined trencheswith no leachate containment. As a result, leachate has contaminated groundwater in the unlinedtrenches. The Site also contains intact and crushed drums, drum remnants, and liquid andsolidified resin material.

HNSLI first approached Haldimand County (“the County”) about its intention to redesign andmodernize the Site in the fall of 2001. Its first application was submitted to the MOE and theCounty in December 2001 and was based on a volumetric capacity estimate of 808,500 cubicmetres for the Site. This estimate of 808,500 cubic metres had been approved by the MOE afterdiscussions with BNSLI and its consultants. The proposal to redesign the Site was posted on theEBR Registry for a period of 30 days ending on January 9, 2002. Five comments were received.

After an initial review of the application, the MOE indicated that it no longer supported thetheoretical capacity calculation. Consultations between HNSU and MOE continued and onAugust 22, 2002, the Director approved a capacity of 624,065 cubic metres by issuing NoticeNo.1 to the CofA. Notice No. I was not posted on the EBR Registry as it was considered to bean “administrative” amendment. Notice No. I also required UNSLI to submit a revised Designand Operations Plan, a Hydrogeological and Surface Water Assessment, and a FinancialAssurance Plan. Notice No. I also provided that no waste be deposited at the Site until theDirector approved the re-design of the Site.

The initial December 2001 application to amend the CofA was withdrawn by HNSLI in mid-2002 in order to redo the design to conform to the new capacity determination.

On November 4, 2002, }Th SLI resubmitted its application for the redesign of the Site based onthe new approved volumetric capacity number of 624,065 cubic metres. The application for theredesign and decommissioning of the Site was posted on the EBR Registry for public commentfor 30 days commencing on November 7, 2002. Four comments were received from the public,raising concerns about truck traffic, impact of the Site on an adjacent wetland, and landfill cover.Comments were also received from the County, the Grand River Conservation Authority and theMinistry of Natural Resources (“MNR”).

In November 2002, subsequent to the EBR posting, two members of the public requested that theMinister designate the proposal for an environmental assessment under the EnvironmentalAssessment Act. The Minister solicited comments from the public, government agencies and

3

Environmental Review Tribunal Decision: 04-156/04-157Anne Vaentin on behalf of Raid imand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

interested groups. On January 13, 2004, the Minister made the decision not to designate theproposal.

On May 5, 2004, the Director issued Notice No. 2 amending the CofA and approving theredesign of the Site and the decommissioning of the liquid industrial waste and hazardous wasteon the Site. There are 95 conditions in Notice No. 2. The re-desIgned Site is to be filly lined inthe fill area with a high-density polyethylene liner on top of a compacted clay liner. A leachatecollection system will collect leachate being produced, which will be disposed of offsite at anapproved facility. The decommissioning is to result in the clean-up of the hazardous waste andliquid industrial waste on the Site as well as the remecliation of the contaminated groundwater.Other conditions require HNSLI to provide financial assurance and deal with landfill gas, groundwater, surface water, covers, nuisance control and other matters. ENSLI was also to “forthwith”establish a Public Liaison Committee (“PLC”).

The Site remained limited to receiving 9.07 tonnes of waste per day. However, the 95%domestic waste restriction was changed to 100% solid non-hazardous municipal waste, includingindustrial, commercial and institutional (“Id”) waste. Notice No. 2 also allowed ICI wastegenerated from anywhere in Ontario to be disposed of at the Site. However, no municipal wastegenerated and/or transferred from outside the County can be received at the Site nor can anyhazardous waste or liquid industrial waste be disposed of at the Site.

The amended CofA also required HNSLI to “forthwith” carry out site decommissioning of theformer waste disposal area. The Director’s decision was posted on the EBR Registry on May 7,2004. No one applied for leave to appeal Notice No. 2.

On May 26, 2004, HNSLI applied for an increase in the daily fill rate. It applied to add 490.93tonnes per day of ICI waste to the existing approved rate of 9.07 tonnes per day of non-hazardous municipal waste for a total of 500 tonnes per day.

HNSLI submitted a “Traffic Impact Study” with its application. The MOE circulated the studyfor comment to the Ministry of Transportation and the County. While the Ministry ofTransportation stated that the information contained in the study was satisfactory, the Countyraised concerns about the capacity of Brooks Road to withstand the loads and traffic volumeassociated with the increase in fill rate. The County requested a study of the section of BrooksRoad leading to the Site.

4

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vallentin on behalf of 1-laldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

The proposal for this amendment to HNSLI’s CofA (Notice No. 3) was posted initially on theEBR Renistry between June 10, 2004 and July 9, 2004. No comments were received from thepublic in response to this posting, The company hosted an Open House on June 8, 2004 toexplain the redesin and the decommissioning of the liquid industrial and hazardous waste at theSite. Due to a perceived lack of public consultation, the proposal was subsequently posted againon the EBR Registry during the period from December 7, 2004 to January 6, 2005. One hundredand fifty-five comments were received during the EBR re-posting.

On December 14, 2004, Chief David M. General of the Six Nations sent a letter to theEnvironmental Assessment and Approvals Branch as a result of the second posting. In the letter,Six Nations objected to the approval of BNSLI’s application to amend the daily allowable fillrate at the Site. The Six Nations stated that the Site is within the Six Nations tract and traditionalterritory and is the subject of outstanding claims against the federal and provincial governments.Six Nations noted that HNSLI made no effort to inform Six Nations of the proposal. ChiefGeneral stated that a public information session should have been held at Six Nations, especiallywith a business that can have permanent and serious affects on their rights and land. Six Nationsindicated that the nature and volume of waste is a great concern along with the connection to awetland area.

On February 10,2005, the Director approved Notice No. 3, which amended the CofA andincreased the waste fill rate at the Site from 9.07 torines per day to 500 tonnes per day.Specifically, Condition 19 of the existing CofA was amended to provide for the revision to thedaily fill rate. Condition 30 was revised to impose a date of March 11, 2005 by which timel{NSU was to commence decommissioning work. The earlier version of this condition inNotice No. 2 had provided that HNSLI carry out the decommissioning work “forthwith”.

Three new conditions were added to the Cof.A in regard to traffic control. Condition 96 requiredRNSLI to retain a qualified consultant, by March 31, 2005, to carry out a study to assess thesuitability of Brooks Road to sustain the traffic volume and loads associated with the Siteoperations. The findings of this study, including a proposed improvement/upgrade, if required,and implementation schedule were to be submitted to the MOE District Manager and the County.Condition 97 required HNSLI to ensure that vehicles carrying materials to and from the Site arerouted along Haldimand County Road 56 and Highway 3. The condition did not apply tovehicles for local pick up of Id waste and local residents using the landfill facility for wastedisposal. Condition 98 required HNSLI to ensure that advance warning signage was installedalong Highway 3 in both directions on the approach to Brooks Road to alert drivers that turningtrucks should be expected at the intersection.

5


On February 28, 2005, Vallentin applied for leave to appeal and on March 1, 2005, Six Nationsapplied for leave to appeal the Director’s decision to approve Notice No. 3.

On March 4, 2005, the Tribunal set out a schedule for the receipt of submissions by the Parties tothe two leave to appeal applications. On March 9, 2005, Six Nations requested an extension ofthe time to file its submissions from March 9 until March 30, 2005. it indicated to the Tribunalthat it intended to set out the rights and obligations attaching to the land in question and theimpact of the decision on those rights. Six Nations stated that it needed the extra time to collectevidence from Elders. The Tribunal granted this request and the deadline for the Director andHNSLI to file response material was extended until April 1 1, 2005. Due to this extension, theTribunal notified the Environmental Commissioner and the parties that a decision would beforthcoming by early May. This was subsequently extended to mid-June,

On April 4, 2005, the Tribunal received a letter dated March 31, 2005, from the City of Hamiltonrequesting participant status in the leave to appeal applications. The Tribunal denied this requestin an Order dated May 5, 2005.

Grounds for Leave to Appeal:

Six Nations

In its original notice, Six Nations raised a number of grounds for leave to appeal. However, inits subsequent submissions to the Tribunal, it indicated that the only ground it was pursuing wasthe failure of the Director to consult with the Applicant on behalf of the Province of Ontario.

Vallentjn

Vallentin is seeking leave to appeal Notice No. 3 in its entirety. She raises the following sixgrounds of appeal;

1. Inexperienced operator. The Proponent has provided no evidence in any application todemonstrate that it has the experience, expertise or capability of operating a landfill that canreceive up to 500 tonnes of waste per day, or of decommissioning a landfill site containing asignificant quantity ofhazardous and liquid industrial waste. No reasonable Director, havingregard to the obligation in section 38 of the EPA to consider the public interest and thepotential for hazards to human health and safety, could have issued the Notice No. 3amendments without such information. Operation of a 500 tonne landfill anddecommissioning of a hazardous waste landfill by an inexperienced operator could result insignificant harm to the environment.

6


2. Non-Compliance. The Proponent has failed to comply with a number of the conditionscontained in Notice No. 2, issued May 5, 2004, as well as the County’s Tree Control Bylaw.In these circumstances, no reasonable Director could have decided to further amend the CofAto allow the Proponent to receive 500 tonnes of waste per day rather than 10 tons of wasteper day. Operation of a landfill by a Proponent that does not comply with all terms andconditions of a CofA and other regulatory requirements could result in significant harm to theenvironment.

3. Inadequacies of Site Decommissioning Plan. Amended Condition 30 requires theProponent to commence site decommissioning activities by March 11, 2005. Given theserious concerns raised with respect to the Site Decommissioning Plan and the Director’sobligation to consider the potential for hazards to human health and safety, no reasonableDirector could have decided to require immediate implementation of the SiteDecommissioning Plan. Immediate implementation of the Site Decommissioning Plan couldresult in significant hann to the environment.

4. Truck Traffic Impacts. The Proponent submitted a Traffic Impact Study in support of theapplication for a rate of fill increase. The Study did not assess the suitability of Brooks Roadto sustain the traffic volumes and loads associated with a fill rate of 50C) tonnes per day, nordid it assess potential truck traffic impacts on several other area roads. The Proponent hasbeen required by Condition 96 to undertake the assessment of Brooks Road by March 31,2005, but has not been required to implement any improvements or further evaluate impactson other area roads. No reasonable Director, having regard to the obligation in section 38 ofthe EPA to consider the potential for the creation of any nuisance, could have made thedecision to amend the CofA to permit the increased rate of fill without first receiving andreviewing information on the suitability of Brooks Road and potential impacts on other arearoads. The decision to permit receipt of 500 tonnes per day at the site could result insignificant harm to the environment.

5. Fundamental Unsuitability of Site. The effect of Notice No. 3 is to complete the three-stepapproval for what is, in effect, a new landfill site at the site of the closed Edwards LandfillSite, Having regard to the fu.ndaxnental unsuitability of the site for use as a landfill,particularly in regard to hydrogeological conditions including the presence of karsttopography and abandoned gypsum mines in the vicinity of the site, the existence ofsinkholes on the site and the proximity of provincially significant wetlands and a NationalHistoric Site, no reasonable Director could have decided to issue Notice No. 3. Operation ofa new landfill site at the site of the closed Edwards Landfill could result in significant harmto the environment.

6. Flawed Approvals Process. The approvals process followed by the Proponent was designedto circumvent the public hearing provisions of the EPA. No reasonable Director, havingregard to the hearing provisions in sections 30 and 32 of the EPA and the Ministry’sStatement of Environmental Vaiues, could have made the decisions to approve a new landfillsite at the site of the closed Edwards Landfill site in three steps (including Notice No. 3) inorder to avoid a public hearing on the application. Operation of a new landfill site at the siteof the closed Edwards Landfill Site could result in significant hami to the environment.

7


Relevant Legislation:

Courts of Justice Act, R.S.O. 1990, c. C-43

Notice of constitutional question

1 09.(1) Notice of a constitutional question shall be served on the AttorneyGeneral of Canada and the Attorney General of Ontario in the followingcircumstances:1. The constitutional validity or constitutional applicability of an Act of

the Parliament of Canada or the Legislature, of a regulation or by-lawmade under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian CharterofRights and Freedoms in relation to an act or omission of theGovernment of Canada or the Government of Ontario.

Failure to give notice(2) If a party fails to give notice in accordance with this section, the Act,

regulation, by-law or rule of common law shall not be adjudged to beinvalid or inapplicable, or the remedy shall not be granted, as the case maybe.

Boards and tribunals(6) This section applies to proceedings before boards and tribunals as well as

to court proceedings.

Environmental Bill ofRights, 1993

Section 38(1) states, in part,

Any person resident in Ontario may seek leave to appeal from a decision whetheror not to implement a proposal for a Class I or II instrument of which notice isrequired to be given under section 22, if the following two conditions are met:1. The person seeking leave to appeal has an interest in the decision.2. Another person has a right under another Act to appeal from a decision

whether or not to implement the proposal.

Section 38 (3) provides that:

For the purposes of subsection (1), the fact that a person has exercised a rightgiven by this Act to comment on a proposal is evidence that the person has aninterest in the decision on the proposal.

8

Environmental Review Tribunal Decisiàn: 04-156/04-157Anne Valientin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

Section 41 provides as follows:

Leave to appeal a decision shall not he granted unless it appears to the appellatebodythat,(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 ofthat kind, could have made the decision; and

(b) the decision in respect of which an appeal is sought could result in significantharm to theenvironment.

Issues:

A preliminary issue was raised as to whether a Notice of Constitutional Question was required tobe filed by Six Nations pursuant to section 109 of the Courts ofJustice Act (“CJA”).

The main issue before the Tribunal is whether Six Nations and Vallentin meet the two-pronged

test for leave to appeal set out in section 41 of the EBR.

Notice No. 3 of the CofA, which is the subject of the leave application, is a classified instrument

that is subject to section 38 of the EBR, There is no dispute that Six Nations and Vallentin havethe requisite interest necessary under subsection 38(1)1. of the EJ3R to apply for leave to appeal

the Director’s decision to issue Notice No. 3. There is also no dispute that subsection 38(1)2. hasbeen met, as HNSLI would have had the right under section 139 of the EPA to appeal from theDirector’s decision, should it have chosen to do so.

Discussion and Analysis:

1. Whether Six Nations is required to file a Notice of Constitutioual Question (“NCQ”)pursuant to section 109 of the Courts ofJustice Act.

Both the Director and HNSLI submit that the Six Nations is required to file a NCQ. On March11, 2005, Counsel for the Director wrote to the Tribunal indicating that it cannot consider aconstitutional question without the Six Nations filing a NCQ. On March 16, 2005, the Tribunalwrote to Counsel for the Six Nations indicating that if the Six Nations wished the Tribunal toconsider a constitutional question, that a NCQ must be filed at the time submissions were due onMarch 30, 2005.

9

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vaflentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

In its submission filed on March 29, 2005, Counsel for Six Nations argued that there is noconstimtional question to be considered in the face of the Haida Natfon and Thku River2decisions of the Supreme Court of Canada and that the jurisdiction of the Tribunal is not in issue.

The Director submits that a NCQ is necessary as the Six Nations rely on section 35 of theConstitution Acr 1982 to challenge the Director’s Decision. It notes that the Tribunal hasrequired an applicant to file a NCQ in the past where a constitutional issue was being raised in aleave application under the EBR. It refers to Noble v. Ontario (Director, MInist?y oftheEnvironment) (1999), 32 C.E.L.R. (N.S.) 263 (Ontario Environmental Appeal Board) in thisregard.

The Director notes that if a party fails to give notice, the remedy shall not be granted. HNSLIalso takes the position that section 109(1) of the Courts ofJustice Act requires a NCQ to be givenwhere the applicability of section 35 of the Constitution Act, 1982 is raised. HNSLI notes thatthe Six Nation’s Notice of Application for Leave to Appeal expressly raises the applicability ofthis section and Six Nations’ aboriginal and treaty rights. It says that the Tribunal is withoutjurisdiction to grant the application for leave to appeal based on the assertion of aboriginal titleor rights and should dismiss the application for leave on this basis alone.

Findings:

The Tribunal notes that while the Six Nation’s Notice of Appeal raised a number of issuesrelating to aboriginal and treaty rights, in its submissions dated March 29, 2005 it indicates that itis now solely relying on the ground of the “Director’s failure to consult with the Applicant onbehalf of the Province of Ontario.” As mentioned above, Six Nations takes the position thatthere is no constitutional question to be considered by the Tribunal and that the jurisdiction of theTribunal is not in issue.

In Re Canada (Commissioner of the Royal Canadian Mounted Police, {1 993] 2 P.C. 351 theFederal Court Trial Division was asked as a preliminary matter whether notice ought to havebeen given to provincial attorneys general in accordance with section 57 of the Federal CourtAct, The wording of section 57 is very similar to that of section 109 of the Ontario Courts ofJustice Act. In that case, the question arose in light of an argument raised by a person who wasthe subject of a complaint raised before the RCMP Public Complaints Commission that the

‘1laida Nation ‘i’. British Columbia (Minister ofForests), 12004] 3 SC.R 511Taku River Tiingit First Nation v. British columbia (Project Assessment Director, [2004] S.C.R. 550Affirmed without comment on this point [1994] 3 F.C. 562 (C.A.),

10

Environmental Review Tribunal Decision: 04-1 56)04-157Anne Vaentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

RCMP Act should be construed in a manner consistent with the Canadian Charter ofRights andFreedoms. The Federal Court, in that case, was also referred to the practice of the SupremeCourt of Canada under its Rule 32, which provides for notice of a constitutional question in amanner similar to Section 57 of the Federal Court Act.

The Federal Court indicated:

As I understand the Supreme Court’s practice, a constitutional question under theCharter is treated the same as any other constitutional question, and aconstitutional question is stated under Rule 32 only when the constitutionalvalidity or the constitutional applicability of a statute or of regulations is raised orthe inoperability of a statute or regulation is urged. A question is not stated underthe Rule where there is not an attack on the validity, applicability or inoperabilityof legislation and where all the Court is being asked is to construe a law in light ofa section of the Charter.

The Court concluded that section 57 was not applicable and that notice was not required. Itstated:

Here the Court is asked to construe the RCMP Act in a manner consistent with theCharter, a Charter argument which was not supported by all counsel, and therewas no direct request for the Court to rule on the validity, applicability oroperability, in a constitutional sense of the Act. In these circumstances, in myview, section 57 does not apply and notice is not required to be provided to allattorneys general. I note that this judgment includes no ruling of the sortdescribed in section 57 in relation to the statute of Parliament here in issue, theRCMP Act.

In the Noble case, relied on by the Director, one of the applicant’s grounds for leave to appealunder the ERR was that section 34 of the Ontario Water Resources Act is of no force or effect byvirtue of section 52(1) and 92A of the Constitution Act, 1982. The Tribunal required a NCQ tobe filed in that case.

The Tribunal finds that in Noble. there was a direct challenge to the validity or constitutionalapplicability of an Act of the Ontario legislature. In this case, the Tribunal concludes that SixNations is not challenging the validity, applicability or operability of any section of the ERR orany other environmental legislation, Rather, Six Nations is arguing that due to a failure toconsult, the test for leave to appeal in section 41 of the ERR has been met, and leave to appealshould be granted. The Tribunal concludes that section 109 of the Courts ofJustice Act does notapply and a NCQ is not required to be filed by Six Nations.

11

EnvironmentaL Review Tribunal Decision: 04-156/04-157Anne Vallentin on behaLf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

2. Whether Six Nations and Vallentin meet the two-pronged test for leave to appeal set outin section 41 of the EBR.

Six Nations’ Application for Leave

Six Nations submits that it should be granted leave to appeal due to the failure of the Director toconsult with the Applicant on behalf of the Province of Ontario.

Six Nations submits that no reasonable person could have made the decision in the face of caselaw which compels consultation with the Applicant, and that the failure of the Director to consultwith the Applicant, in and of itself; results in significant harm to the environment. Six Nationssays that the Site is located on an area of land that is subject to a land claim and that the rightsclaimed to the land in question include the right of exclusive use and occupation.

An affidavit, dated March 29, 2005, was filed by Sherry Saevil, supervisor of the LitigationSupport Unit for the Six Nations Council. Ms. Saevii indicated that on March 7, 1995, SixNations commenced an action against Ontario and Canada with respect to 900,000 acres of landthat was granted to Six Nations in 1794 further to the Haldimand Proclamation. She attached acopy of the Amended Statement of Claim in this regard. She says that the HaldimandProclamation endorsed the Six Nations’ possession, use and occupation of a tract of landextending six miles on either side of the Grand River from its headwaters to Lake Erie, She saysthat while this tract of land was granted to the Six Nations in part for its support of the ImperialCrown in the American War of Independence, Six Nations occupied and possessed the landprescribed in the Haldimand Proclamation from time immemorial.

Ms. Saevil says that the Proclamation confirmed the exclusive use, occupation and possession ofthe tract for the Six Nations and that they were to enjoy free and undisturbed possession of thelands prescribed by the Proclamation. She maintains that the land upon which the Site is locatedwas wrongfully taken from the Six Nations.

Six Nations state that the Director and/or Ontario have failed to engage in any consultation withrespect to the Director’s decision. Six Nations say that Ontario has failed to perform anypreliminary assessment of the strength of its claims, or the seriousness of the potentially adverseeffects upon the rights claimed by Six Nations with respect to the decision. It says that Ontariohas been aware of the land claim and the rights claimed for at least nine years. Six Nations notesthat Ontario filed its Statement of Defence and Crossclaim on January 22, 1996 and has been anactive participant in the litigation and is aware of the territorial expanse of the litigationincluding the fact that the Site is located upon the lands prescribed by the Proclamation.

12

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

Six Nations submits that the Director’s decision is a prima facie infringement of its rights in thatit disturbs the claimed exclusive use and occupation of the land in question by allowing BNSLIto operate a landfill and in this particular instance to increase the rate of filL

Ms. Saevil says that Ontario failed to provide Six Nations with even minimal consultation, whichwould have included notice, disclosure of information and ensuing discussion on the impact ofthe decision on the Six Nations’ lands.

Six Nations also asserts that the decision of the Director will cause harm to the environment. SixNations says that it adopts arid incorporates by reference the submissions of Vallentin withrespect to the significance of the harm, it claims that the harm to the environment is significantgiven Six Nations’ relationship with the land and further that any harm to the environment willconstitute a breach of a constitutionally protected right.

Six Nations also submits that harm must be measured on a different scale in relation to aboriginalas opposed to “non-aboriginal stakeholders.” It says that that the aboriginal standard of“significance” must consider the unique relationship between Six Nations and the land and thespecial obligations imposed upon Ontario with respect to ensuring that those relationships arehonoured and respected.

Six Nations refers to the Supreme Court of Canada decisions in Haida Nation and Taku River.In particular, Six Nations says that Taku River indicates that a provincial government has apositive obligation to consult with a First Nation where provincial government action mayinterfere or infringe upon rights claimed even when the rights are unproven, Haida Nation saysthat the duty to consult arises when the Crown has knowledge, real or constructive, of thepotential existence of the aboriginal right or title and contemplates conduct that might adverselyaffect it.

Six Nations submits that Taku River also states that a public consultation process will not meetthe provincial duty to consult with a First Nation where the concerns are not directly addressedby the province. Further, Six Nations submits that Ontario is under a positive obligation toperform a preliminary assessment of the strength of the case supporting the existence of the rightor title and to the seriousness of the potentially adverse effect upon the right or title claimed.

Six Nations submits that it meets both of the tests set out in section 41 of the EBR. It says that asthe Director’s decision may adversely affect the rights claimed by Six Nations and as Ontario hasfailed to meet the obligations set out by the Supreme Court of Canada, that it is not possible that

13

Environmental Review Tribunal Decision: 04-156/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT>and Six Nations of the Grand River v. Director, Ministry of the Environment

any reasonable person, having regard to the Haida Nation and Taku River cases, could havemade the decision. Six Nations also submits that the decisions of the Supreme Court of Canadahas set a very low threshold for determining what is significant harm within the context ofsection 41 of the ERR where aboriginal interests are concerned. It submits that the SupremeCourt has determined that the mere possibility of harm to the environment in the context of anaboriginal interest is sufficient to render that harm significant such that consultation andpreliminary assessment are required.

In respect to the first branch of the section 41 ERR test, the Director concedes that issuesinvolving the existence of the duty to consult and the appropriate extent of such consultation, asSet out in Haida Nation, are issues of “relevant law” for the purposes of section 41 of the ER]?.The Director acknowledges that he did not consult directly with Six Nations in regard to NoticeNo. 3 and no consultation took place with the Six Nations in response to itS December 14, 2004letter to the MOE. The Director concedes that, in light of the December 14, 2004 letter and thedecision of the Supreme Court of Canada in HaIda Nation, it was not reasonable to issue NoticeNo. 3 without undertaking additional consultation with the Six Nations on ffNSLI’s proposal toincrease the rate of fill.

The Director, in an affidavit dated April 11, 2005, has undertaken to amend the CofA to preventthe increase in the fill rate from taking effect pending consultation with Six Nations. He notesthat pursuant to section 42 of the EBR, if leave is granted in either of the leave applications, anautomatic stay of Notice No. 3 is granted. While the Director acknowledges that he would notbe in a position to amend a stayed instrument, he undertakes to carry out consultation while theinstrument is stayed. He further indicates that if the instrument is not stayed, then he will issuean amendment to the ColA upon receipt of the Tribunal’s decision in the leave applications.

The Director says that he will be conducting direct consultation with the Six Nations on theincrease in the rate of fill in accordance with the principles set out in Haida Nation. TheDirector indicates that after consulting with the Chief and Band Council Members he will takesteps to amend the CofA, if appropriate.

The Director has provided the Tribunal with a copy of a letter dated April 11, 2005 to ChiefGeneral and the Six Nations Band Council formally responding to the Chiefs letter of December14, 2004 and the Six Nations’ March 2, 2005 submissions to the Tribunal. The Directorindicates that he would be pleased to meet with Chief General and Band Council members “toengage in a consultation on the fill rate increase for the Edwards Landfill Site so as to have a

14

Environmental Review Tribunal Decision: 04-156/04.157Anne VaHentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

better understanding upon the potential impact of Notice No. 3 on your asserted aboriginal ortreaty right&”

The Tribunal notes that the Director takes issue with the statement made in Six Nations’submission that the “rights claimed to the land include the right of exclusive use andoccupation.” The Director says that Six Nations did not assert this claim in its 1995 AmendedStatement of Claim, and that, therefore, the claim known to Ontario does not include this right.However, while there may be a dispute as to the definition of the characterization of the right, theDirector does not take issue with the fact that there are asserted aboriginal or treaty tights andthat it was not a reasonable decision to issue Notice No. 3 without consulting Six Nations.

Despite this faihre to consult, the Director takes the position that Six Nations has not met thesecond branch of the section 41 EBR leave test. He submits that Six Nations has not providedany evidence that the Director’s decision could result in significant harm to the environmentThe Director says that Six Nations have submitted that there could be harm to the environment asa result of the issuance ofNotice No. 3 but have not indicated what that harm could be.

The Director submits that Ms. Saevil’s assertion that “the harm is significant in this matter as theharm priinafacie infringes upon the rights of the Six Nations to be consulted with respect to thedecision” is a circular statement which is difficult to decipher and which mixes the two branchesof the section 41 EBR leave test. The Director says that he has conceded that it wasunreasonable to issue Notice No. 3 without having consulted with the Six Nations. Therefore,the first branch of the test has been met. The Director submits that the second branch of the testis not automatically met by virtue of the first branch having been met, which he says appears tobe the position put forth by Six Nations. The Director argues there must be significant harmalleged, and that the harm must have a solid foundation of convincing evidence that supports thatfoundation with substantial and relevant information ( Warings Creek Improvement Assn. v.Ontario (Director, Ministry of the Environnienc) (2004), 10 C.E.L.R. (3d) 111 (EnvironmentalReview Tribunal)).

The Director notes that Ms. Saevil requests that significant harm be measured on a different scalewith respect to aboriginal stakeholders. The Director submits that there is nothing in the statutethat suggests that section 41 of the EBR should apply differently to different groups ofpeople.

The Director also takes issue with the fact that Six Nations, in its submissions. adoptedVallentin’s submissions with respect to the issue of significant harm to the environment. TheDirector submits that the second branch of section 41, significant harm, must flow from the fhst

15


branch, the unreasonableness of the decision, as it relates to the ground raised. The Directorargues that any other interpretation would ignore the conjunctive nature of the test as clearlyintended by the legislature. The Director says that as none of the grounds raised in thesubmissions of Six Nations overlap with those raised by Vaflentin, Six Nations cannot rely onthe submissions made by Vallentin to support its assertion of signification harm. In thealternative, the Director submits that if the Tribunal considers Vallentin’ s submissions in the SixNations application, it should also consider the Director’s submissions in the Vaflentinapplication.

The Director submits that as Six Nations has not satisfied both branches of the section EBR test,the application for leave to appeal should be dismissed.

in the alternative, the Director takes the position that a section 38 leave application is not themost appropriate forum to address any deficiencies in the Crown’s consultation process withaboriginal peoples. The Director notes that the Tribunal has the authority to grant leave toappeal his decision. If leave is granted, he states that the applicant may proceed to a hearing inthe matter on the ground on which leave is granted. The Director notes that at a hearing of thematter, the Tribunal may confirm, alter, or revoke the action of the Director. The Director takesthe position that the Tribunal does not have the authority to directly order the Crown to consultwith aboriginal peoples. In the alternative, the Director argues that, even if the Tribunal has theauthority to order the Crown to conduct further consultations, such a remedy would beunnecessary, as the Director has already undertaken to conduct additional consultation with theSix Nations.

HNSLI submits that Six Nations fails on both prongs of the test for leave to appeal. In regard tothe first part of the section 41 test, HNSLI submits that the Six Nations has not asserted anydirect land claim against the Site. It says that the Amended Statement of Claim makes claimsagainst the federal and provincial Crowns for an accounting and damages for breach of theCrown’s fiduciary obligations, HNSLI argues that, in fact, Six Nations concede in the AmendedStatement of Claim that despite accepting the Haldimand Proclamation as a treaty within themeaning of section 35 of the Constitution Act, 1982, it agreed to surrender a body of landsknown as the Talbot Road Lands. HNSLI submits that Six Nations’ complaint with respect tothose lands (which includes the Site) are that the Crown failed to account for the proceeds of saleof the Talbot Road Lands and failed to reserve sufficient lands for the Six Nations as had beenagreed to by Six Nations.

16

Environmental Review Tribuna! Decision: 04-1 56/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

HNSLI submits that despite the original Haldimand Proclamation, Six Nations admits in itsAmended Statement of Claim that it currently “occupies and uses only the lands which comprisethe Six Nations Indian Reserve No. 40, which is located southeast of the City of Brantford,Ontario, and the Six Nations Indian Reserve No. 40B and Lot 5, Eagle’s Nest tract, which arelocated within the City of Brantford ...“. HNSLI says that these lands are at least 15 kilometresfrom the Site.

HNSLI also submits that throughout the application process which commenced in December2001, it never received any notice or complaint from Six Nations in regard to the Site, FrankCampbell, President of HNSLI, in an affidavit submitted to the Tribunal on April 11, 2005,indicates that it was not until March 2, 2005 when ENSLI was served with the application forleave to appeal by Six Nations, that he and his partner had any knowledge that Six Nationsasserted such claims. He notes that the parcel abstract for the Site shows that on November 18,1861, William Payne acquired Lot 24, Concession 1, NTR, by Crown Patent. Since that time,the land has been held by private ownership without interruption. Mr. Campbell also indicatesthat he has spoken to the prior owners of the Site, who indicated that they bad never beencontacted by Six Nations or been advised of any claims made to the Site.

HNSLI argues that the Six Nations did not set out the rights and obligations attaching to the landin question and the impact of the decision on those tights, as it had indicated that it would in itsrequest to the Tribunal for an extension of time in which to fle its submissions. HNSLI says thatthe affidavit evidence filed by Six Nations attempts to elevate its claims against the Site to alevel not even asserted in its Amended Statement of Claim.

HNSLI submits that with only a claim by Six Nations for damages or an accounting, and nodirect claim of aboriginal rights, the decision of the Director cannot be found to be unreasonable.

HNSLI submits that, as established in Haida Nation, it had no obligation to consult with SixNations about its application to amend the daily fill rate and that it complied with all MOErequirements for giving notice to adjoining land owners, holding public information sessions andestablishing and holding monthly PLC meetings since September 2004. However, HNSLI hasundertaken to the Tribunal that it will carry out a public information session and consult with SixNations together with the Director whether or not the application for leave to appeal is granted.

Mr. Campbell indicated that once a copy of the December 14, 2004 letter was received by himon March 2, 2005, he wrote to Chief General on March 7, 2005 offering mediation to resolve anyconcerns the Six Nations might have about the Site. The name of a mediator was suggested. A

17


copy of the letter was filed with the Tribunal. Mr. Campbell indicated that no response had beenreceived by April 11, 2005, the date HNSLI’s submissions were filed.

HNSLI also submits that the Six Natitins have not established any evidence ofharm orsigtificant harm to the environment. It says that potential “harm” to aboriginal rights is not to beequated with harm to the natural environment.

Findings:

In this case, HNSLI has taken the position that with only a claim for damages or an accountingand no direct claim of aboriginal rights against the Site by Six Nations that “it was notunreasonable for the Director to make his decision without consulting with Six Nations.”

However, HNSLI correctly notes that the duty to consult is the responsibility of the Crown, andnot a third party. Haida Nation established that third parties do not have an obligation to consultwith or accommodate Aboriginal peoples. In this case, the duty is clearly owed by the provincialCrown and not by HNSLI. As the Supreme Court found:

The duty to consult and accommodate flows from the Crown’s assumption ofsovereignty over lands and resources formerly held by the Aboriginal Group.This theory provides no support for an obligation on third parties to consult oraccommodate, The Crown alone remains legally responsible for theconsequences of its actions and interactions with third parties that affectAboriginal interests. The Crown may delegate procedural aspects of consultationto industry Proponents seeking a particular development; this is not infrequentlydone in environmental assessments.

However, the ultimate legal responsibility for consultation and accommodationrests with the Crown. The honour of the Crown cannot be delegated. (HaidaNation, para 53)

In this case, the Director concedes that he did not consult with Six Nations after receipt of theDecember 14, 2004 letter from Chief General indicating that Six Nations objected to theapproval of Notice No. 3, and raising the issue of its aboriginal rights. It is clear that at the timethe Notice of Decision was posted on the ERR Registry, the Director had not acknowledged thathe had the responsibility to consult with Six Nations. In the summary of comments andresponses prepared by MOE and appended to the February 14, 2005 Notice ofDecision, the firstcomment entitled “Adequacy of Public Consultation” included a reference to the concerns raisedby Six Nations in its December l4 2004 letter. The MOE generic response was that “theMinistry believes that sufficient public consultation has been conducted in accordance with the

18


Ministry requirements”. There was no specific response to the issues of aboriginal rights and thelack of consultation raised by Six Nations.

However, in its submissions filed with the Tribunal, the Director agrees that issues involving theexistence of the duty to consult are issues of “relevant law” for the purposes of section 41 of theEBR. He, therefore, concedes that no reasonable person would have issued Notice No. 3 withoutundertaking additional consultations.

The Supreme Court has clearly stated that the duty to consult arises “when the Crown hasknowledge, real or constructive of the potential existence of the aboriginal right or title andcontemplates conduct that might adversely affect it”. The Court, in Haida Nation, stated that“difficulties associated with the absence of proof and definition of claims are addressed byassigning appropriate content to the duty, not by denying the existence of a duty.” (para 37)

In this case, there is no doubt that the provincial Crown knew about the Six Nations’ 1995 Claimand has in fact responded to it, While there appears to be some dispute as to the exactcharacterization of the claim, there is no doubt that the Crown has knowledge that the SixNations claim encompasses the land where the Site is located. Further, the December 14, 2004letter from Chief General places the issue squarely before the Director. The duty to consultAboriginal peoples arises in circumstances prior to proof of rights or title claims. While HNSLImade a number of submissions in relation to the merits of Six Nations’ claim, the Tribunal neednot make any final determination as to the strength or ultimate success of the Six Nations claim,nor does the Tribunal, for the purposes of this application for leave to appeal, need to decide theexact scope of the duty to consult and accommodate.

The Director has conceded that his failure to consult with Six Nations has allowed Six Nations tomeet the first part of the section 41 leave to appeal test. While the Director has linked his failureto consult Six Nations to the first part of the section 41 leave to appeal test, the Tribunal mustfirst answer the question of whether the Director’s failure to consult Six Nations allows theTribunal, as a preliminary question of law, to grant leave without considering the section 41 testunder the EBR.

The Supreme Court in Flaida Nation discusses the source of a duty to consult and accommodate.It found that the government’s duty to consult with Aboriginal peoples and accommodate theirinterest is grounded in the honour of the Crown. It went on to state that:

The historical roots of the principle of the honour of the Crown suggest that itmust be understood generously in order to reflect the underlying realities from

19


which it stems. In all its dealing with Aboriginal peoples, from the assertion ofsovereignty to the resolution of claims and the implementation of treaties, theCrown must act honourably. Nothing less is required if we are to achieve the“reconciliation of the pre-existence of aboriginal societies with the sovereignty ofthe Crown.” (para 17)

It is a corollary of section 35 [of the Constitution Act, 1982] that the Crown acthonourably in defining the rights it guarantees and in reconciling them with otherrights and interests. This in turn implies a duty to consult, and if appropriate,accommodate. (para 20)

The Supreme Court in Haida Nation also states very clearly that the Crown is under a positiveobligation to perform a preliminary assessment of the strength of the case supporting theexistence of the right or title, and to the seriousness of the potentially adverse effect upon theright or title claimed. This appears to be recognized now by the Director. In his April 11, 2005letter to Chief General, he indicates that he would be pleased to engage in consultation on the fillrate increase “so as to have a better understanding about the potential impact ofNotice No, 3 onyour asserted aboriginal or treaty rights.”

The Tribunal finds that the failure of the Director to undertake any consultation in the face of theassertion of Six Nations’ aboriginal rights, as was the case in Haida Nation, is a breach of theduty to consult which flows from section 35 of the Constitution Act, 1982, As the Director hasalso conceded, the Tribunal clearly has the authority to address issues of aboriginal rightsaccording to the Supreme Court of Canada decision in Paul v. British Columbia (Forest AppealsCommission), [2003) S.C.R. 585.

The Director has submitted that Six Nations may be confusing the test for when the duty toconsult with Aboriginal peoples arises with the test for when leave to appeal under section 41 ofthe EBR can be granted. Yet the Director argues that his failure to comply with the duty toconsult only results in Six Nations meeting the first part of the section 41 leave test which hesubmits, therefore, forecloses the Tribunal from granting the remedy of leave to appeal for whichSix Nations has applied. The Tribunal does not agree with this conclusion.

The Tribunal’s only remedy in this case, as the Director has noted, is to grant leave to appeal.The Tribunal finds that while this failure to consult with Six Nations is conceded by the Directorto meet the first prong of the test under section 41 of the ERR, the failure to consult is a morefundamental issue that must be addressed before the decision to increase the fill rate can beimplemented. The failure to consult cannot be characterized as merely a breach of the first partof the section 41 test. Consultation with Aboriginal peoples is a constitutionally mandated dutythat arises “when the Crown has knowledge of the potential existence of the aboriginal right or

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title and contemplates conduct that might adversely affect it” (Haida Nation). The Director hasrecognized the importance of his failure to consult, and has taken steps to engage Six Nations ina consultation process, The Director has indicated that he will not allow the increase in fill rateto take effect pending consultation taking place.

Further, the Supreme Court clearly envisions a role for tribunals in determining the is suesof a duty to consult and the scope of that duty. In 1-laida Nation, the Court found:

There is a distinction between knowledge sufficient to trigger a duty to consultand, if appropriate, accommodate, and the content or scope of the duty in aparticular ease. Knowledge of a credible but unproven claim suffices to trigger aduty to consult and accommodate. The content of the duty, however, varies withthe circumstances. A dubious or peripheral claim may attract a mere duty ofnotice, while a stronger claim may attract more stringent duties. The law iscapable of differentiating between tenuous claims, claims possessing a strongprima facie case, and established claims. Parties can assess these matters, and ifthey cannot agree, tribunals and courts can assist. (para 37) (emphasis added)

The Tribunal concludes that as Six Nations has chosen to raise the issue of the failure ofthe Director to consult before it, rather than the courts, and as the Director has concededthat consultation has not taken place, the Tribunai should properly grant the remedy thatis available to it, which in this case is the granting of leave to appeal.

In the alternative, if the Tribunal cannot grant leave to appeal on the sole basis of thefailure of the Director to consult with Six Nations, the Tribunal finds that both prongs ofthe section 41 leave to appeal test have been met by Six Nations. The Director hasalready conceded that the first prong has been met. The Tribunal notes that the languageof the second prong of the test is that “the decision could result in significant harm”. Itdoes not require that actual harm be shown. As the Tribunal has noted in earlierdecisions, it is not necessary for the Tribunal to determine at the leave stage whether theDirector actually was unreasonable or the likelihood of the potential harm materializing.These questions may be left to be determined at the hearing of the appeal should leave begranted (see Residents Against Company Pollution v. Ontario (Director, Minist?y ofEnvironment and Ener (1996), 20 C.E.L.R. (N.S.) 97, at 114). Further, for both prongsof the section 41 test, the EBR states only that the Tribunal determine what “appears” tobe the case.

While the test is a stringent one, it must be applied in conjunction with the stated intent of theEBR to enable the people of Ontario to participate in the making of environmentally significantdecisions by the government of Ontario.

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Environmental Review Tribuna’ Decision: 04-156/04-157Anne Vallentin on behalf of Hadimand Against Landfill Transfers (HALT>and Six Nations of the Grand River v. Director, Ministry of the Environment

The Director has argued that the second part of the section 41 test, significant harm, must flowfrom the first branch, which is the unreasonableness of the decision as it relates to the groundraised. The Director has argued that Six Nations has submitted no evidence to support itsposition that the lack of consultation could result in significant harm to the environment. Whilethe Tribunal agrees that both tests must be met, it cannot agree that the second part of the section41 test necessarily flows solely from a ground raised in relation to establishing the first part ofthe section 41 test. The Tribunal notes that section 41(b) refers to the issue of whether the“decision” and not a “ground for leave to appeal” “could result in significant harm to theenvironment”

This issue was discussed in Residents Against Company Pollution Inc., supra. In that case, theEnvironmental Appeal Board (“Board”), the predecessor to the Tribunal, stated:

The second part of the leave test is met when it appears to the Board that theDirector’s decision could result in significant harm to the environment. Anapplicant for leave to appeal may challenge many aspects of the Director’sdecision to issue an instrument as unreasonable. However, it is the decision toissue the instrument as a whole that must be capable of causing harm to theenvironment, A leave applicant need not show that an individual component ofthat decision that is unreasonable, such as a specific term or condition of theapproval, is also capable of resulting in harm. I can find nothing in the EBR thatexplicitly or implicitly requires the leave applicant to show a causal connectionbetween the unreasonableness of the decision and the harm that may result fromissuing the decision to be granted leave to appeal the decision. For example, if, asin this case, a leave applicant succeeds in persuading the Board that there is goodreason to believe a requirement to keep records for two years is unreasonable, it isnot necessary for the leave applicant to show as well that this component of thedecision can cause harm, if the issuance of the instrument as a whole may result inharm.

The Director argues that the Tribunal must consider the leave application and evaluate each andevery ground against the test for leave as set out in section 41 of the EBR and cites the DivisionalCourt decision in Smith v. Ontario (Director, Ministry of the Environment & Energy) (2003), 1C.E.L.R. (3d) 245 as standing for that proposition. In Smith, the Tribunal had granted theapplicants leave to appeal on only one of the eight grounds relied on in their application. In alater motion, the Tribunal quashed a ground in the notice of appeal that was outside the questionon which leave to appeal was granted. The Divisional Court held that the Tribunal badjurisdiction to determine the basis on which leave to appeal is granted and to keep the appealwithin the limits of the scope intended by the Tribunal when granting leave. The Court did notmake any findings as to whether there needed to be a causal connection between an aspect of theDirector’s decision that may be found to be unreasonable and the harm that could result to the

Environmental Review Tribunal Decision: 04-156104-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

environment from the decision, nor did it need to. In the decision appealed from, the Tribunalhad indicated that no party had taken issue with the contention that the subject matter of thedecision could result in significant harm to the environment. (Smith et al v. Ontario (Director.Ministry ofEnvironment and Energy) Case No. 02-018, July 11, 2002).

The Tribunal has also held in a number of cases that while the two-pronged test in section 41 is astringent one, the standard ofproof is a lower standard than a balance of probabilities (seeLacombe Wasle Services Ltd. v. Director, Ministry of the Environment, Case No, 04-148, March21, 2005), As stated above) it is not necessary for the Tribunal to determine at the leave stage thelikelihood of whether the potential harm to the environment will materialize. This question is tobe determined at the hearing of the appeal, if leave is granted.

Six Nations, in its December 14, 2004 letter to the MOE, indicated a concern about the impact ofthe Site on the adjacent wetland. Six Nations has also adopted the submissions of Vallentin inregard to the significance of the harm to the environment and refers to the broad definition of“harm” in the EBR. “Harm” is defined in section 1 .(1) of the ERR as meaning “anycontamination or degradation and includes harm caused by the release of any solid, liquid, gas,odour, heat, sound, vibration or radiation.”

As the Tribunal finds that there need not necessarily be a causal connection between theunreasonableness of an aspect of a decision raised in a ground of appeal and a finding that itappears to the Tribunal that a decision could result in significant harm to the environment, SixNations can rely on Vallentin’s submissions regarding the issue of whether the decision couldresult in significant harm to the environment.

Barker v. Ontario (Ministry ofEnvironment and Energy) (1996), 20 C.E.L.R. (N.S.) 72, alsoinvolved the reopening of a landfill site that had an existing CofA, In that case, the Board foundthat harm as defined in the EEl? includes nuisances such as odour and sound. It stated:

There is no doubt that an operating landfill site has more lilcelihood of creating nuisancessuch as here than does a closed landfill site. In the eyes, ears, and noses of the nearbyresidents, this harm could be significant. Therefore, it is the Board’s view that thereopening of the site could result in significant harm to the environment in some respects.

While the Tribunal is cognizant that it is only dealing in these applications for leave with NoticeNo. 3 and not Notice No. 2, which deals with the design and operation of the Site, the increase inthe fill rate from 9.07 tonnes a day to 500 tonnes a day will result in an increase in truck trafficand associated nuisance effects.

23

Environmental Review Tribunal Decision: 04-1 56/041 57Anne Vallentin on behalf of Haldirnand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

Further, in a report dated February 22, 2005 prepared for the Grand River ConservationAuthority by Ray Blackport, Blackport Hydrogeology Inc., entitled Hydrogeological Review ofthe Edwards Landfill Site, filed by Vallentin, Mr. Blackport states that “the ‘footprint’ of thewaste area on site will be substantially increased as a result of the increased rate of Iandfihling,increasing the area of potential contaminant leakage.” In this case, the increase to the existingwaste footprint due to the reopening and the new design of the Site was provided for in NoticeNo. 2. While the Director and HNSU correctly point out that Notice No. 3 is not an applicationfor the expansion of the Site, but rather an application to increase the rate at which the Sitewould fill up, Notice No. 3 will result in the waste being deposited more quickly in the new areato be landflhied. Presently only approximately 2.3 hectares of the approved 6 hectares has beenused for Iandflhling at the Site.

Conestoga-Rovers & Associates (“CRA”) has also stated in section 4.5.3 of the Developmentand Operations Report (an excerpt of which was provided to the Tribunal) that “the generation ofleachate is dependent on a number of factors, including the landfill area, and the various stagesand durations of landfill development (e.g., areas of new cells, areas of exposed refuse, areascompleted with final cover, etc.)”. The Report also indicates that the “duration of the variousstages of landfill development, will be dependent on the amended fill rate, if and whenapproved.”

It appears to the Tribunal that the concerns raised by Mr. Blackport which relates to thisincreased rate of generation of leachate and “potential” for “increasing the area of contaminantleakage”, in addition to the potential nuisance effects caused by an increase in the size andnumber of trucks as a result of the increase in fill rate “could result in significant harm to theenvironment” within the meaning of the second part of the section 41 leave to appeal test.Six Nations has argued that the section 41 test of “significant harm to the environment” shouldbe measured on a different scale for aboriginals than non-aboriginals, a submission that theDirector and HNSLI disagree with. While the Tribunal cannot find that the test of whether adecision “could result in significant harm to the environment” is different for aboriginals thannon-aboriginals, the Tribunal does agree, as stated earlier, that the Crown’s duty to consult isunique to Aboriginal! peoples as it flows from the Constitution as opposed to any administrativelaw procedural fairness basis for consultation that may be relevant to non-aboriginals.

Six Nations has also submitted that the failure of the Director to consult with Six Nations, in andof itself results in siguificant harm to the environment. Specifically, it claims that the decision isa prima facie infringement of the rights of Six Nations, in that it disturbs the claimed exclusiveuse and occupation of the land in question by allowing the proponent to operate a landfill and in

24

Environment& Review Tribunal Decision: 04-1 56/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

this particular instance to increase the rate of fill. Six Nations also says that the harm to theenvironment is significant given Six Nations’ relationship with the land.

While the Director takes issue with this submission, and the Tribunal agrees that the argumentcould have been more clearly articulated, there is a link between the test for a duty to consult andthe section 41 test for leave to appeal.

In Haida Nation, the Supreme Court found that the duty to consult arises when the Crown“contemplates conduct that might adversely affect” aboriginal rights or title. The Tribunal findsthat the Director must be taken to agree that his decision to issue Notice No. 3 “might adverselyaffect” aboriginal rights or title as he does not dispute the need to proceed with consultation.While the two tests are different, there is a link in that it is the action of the Director to allow anincrease in fill rate that could both result in significant harm to the enviromnent and adverselyaffect aboriginal rights or title of Six Nations.

In sum, the Tribunal finds that, either as a result of a breach of the constitutionally defined dutyto consult with Aboriginal peoples andJor the finding that Six Nations has met the two-prongedtest set out in section 41 of the ERR, it grants Six Nations leave to appeal.

The Tribunal, while granting Six Nations’ application for leave to appeal, is cognizant of thearguments made by the Director that a section 38 leave application may not be the mostappropriate forum to address any deficiencies in the Crown’s consultation process withaboriginal peoples. The Tribunal has received correspondence from both the Director andHNSLI to Chief General offering to consult on the fill rate increase. The Tribunal would urgeSix Nations to take up the Director’s offer to consult.

The Supreme Court in Haida Nation has noted that in all cases, the honour of the Crown requiresthat the Crown act with good faith to provide meaningful consultation appropriate to thecircumstances. The Court also says that “at all stages, good faith on both sides is required”. TheSupreme Court states:

The common thread on the Crown’s part must be “the intention of substantiallyaddressing [Aboriginal] concerns” as they are raised through a meaning processof consultation. Sharp dealing is not permitted. However, there is no duty toagree; rather, the commitment is to a meaningful process of consultation. As forAboriginal claimants; they must not frustrate the Crown’s reasonable good faithattempts, nor should they take unreasonable positions to thwart government frommaking decisions or acting in cases, where despite meaningful consultation,agreement is not reached. (para 42)

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Where accom.rñodation is required in making decisions that may adversely affectas yet unproven Aboriginal rights and title claims, the Crown must balanceAboriginal concerns reasonably with the potential impact of the decision on theasserted right or title and with other societal interests. (para 50)

Six Nations must now determine whether it wants to file an appeal, and whether it wants toproceed to a hearing, or mediation, However, it is important that the forum of an independent,impartial tribunal be available to Six Nations given the Director’s failure to consult.

Vallentin’s Application for leave

Vallentin has raised six grounds of appeal, summarized above. The Director takes the positionthat only one ground, that is, ground #4 dealing with truck traffic, is related to Notice No. 3. Hesubmits that Vallentin has attempted to bring issues into her application for leave which relatesto Notice No. 2, rather than Notice No. 3, and has also raised issues that are not relevant to theDirector’s decision-making authority. However, both the Director and HNSLI have addressedall the grounds in their submissions. The Tribunal will address each ground in turn, taking intoaccount the submissions of the parties on each.

Ground #1: Inexperienced Operator

The crux of Vallentin’s argument, in relation to ground #1, is that HNSLI provided no evidencein its May 24, 2004 application to demonstrate that it has the experience, expertise or capabilityof operating a landfill that can receive up to 500 tonnes of waste per day, or of decommissioninga hazardous waste landfill. Vallentin submits it is a matter of common sense that the Directorshould be satisfied that an applicant has the capability to properly construct and operate the site.Vaflentin submits that no reasonable Director could have issued Notice No. 3 without suchinformation and that operations of this landfill by an inexperienced operator could result insignificaiit harm to the environment.

The Director first argues that Vallentin is questioning the operator’s experience as it relates tothe operation of the entire waste disposal site and that the conditions governing Site operationsare set out in Notice No. 2 and that this is an attempt by the applicant to broaden the leaveapplication beyond Notice. o. 3. The Director indicates that there is nothing in the EPA orOntario Regulation 347- General-Waste Management (“Ont. Reg. 347”, or in any policy orguideline, which requires that operators or owners of waste disposal site have certainqualifications in order to be granted a CofA.

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The Director states that he decides to grant an approval based on consideration of the application,which must be prepared by appropriately qualified consultants in accordance with Ministryguidelines For example, supporting documents such as hydrogeological studies can only becarried out in Ontario by professional geoscientists licensed under the Professional GeoscientistsAct. The Director notes that numerous conditions in Notice No. 2 require that work be carriedout by qualified consultants and staff. He further submits that the experience of the operator isnot relevant to the applicable Jaws and guidelines in place to guide his decision.

In this case, both the Director and HNSLI submit that CRA, the consultant for the design andoperation of the Site and increased fill rate, is an international, reputable firm whose professionalengineers and geoscientists are appropriately licensed under their respective acts. HNSLI hasalso noted that its principals have had previous experience with significant site remediation workand with operating a municipal landfill in the City of St. Catharines for a period of six years.

Findings:

While the Tribunal finds that the issue of the experience of the operator is One that it canconsider in relation to Notice No. 3, the Tribunal agrees with the substantive submissions madeby the Director and HNSL1 on this ground. The Tribunal finds that the Director’s obligation is toconsider the effects on the environment of the proposed landfill and to impose conditions, ifappropriate, to minimize and mitigate against any adverse effects against the environment. Thatwork must be carried out by licensed professionals. The issue of qualifications and expertise isrelevant to the consultants that must prepare supporting documents, such as hydrogeological andengineering studies, and perform work required under the CofA. An affidavit filed by GregoryFerraro, a Principal with CRA, states that CRA has been involved to varying degrees in aminimum of 93 landfill sites, including this Site. Its expertise includes the design of leachatecollection systems, surface water management, and cost analysis.

Vallentin has not made any allegations of lack of expertise or capability in relation to any of theconsultants engaged by HNSLI, but only to N}.ISLI itself. The Tribunal finds that there are norelevant laws or policies in place to guide the Director’s decision that require an examination ofthe experience of the operator. Further, in this case, both principals ofHNSLI, Mr. FrankCampbell and Mr. William Courtney, have had considerable experience in the operation oflandfill sites and the decommissioning of environmental projects. Both were involved in theUniroyal chemical clean up in Elmira, Ontario in 1992-1993. Mr. Courtney was a principal inAmbler-Courtney Limited, the contractor who worked with CRA on the clean-up, and Mr.Campbell was the project manager.

27

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vatlentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

The Tribunal finds no foundation for Vallentin’s assertion that the Director needs to examine theexperience and qualifications of the operator before issuing a CofA and, therefore, finds thatVallentin has not demonstrated that there is good reason to believe that no reasonable person,having regard to the relevant law and to government policies developed to guide decisions of thiskind, could have made the decision to issue Notice No. 3 without detailed information on thequalifications of the landfill operator.

Due to this finding that Vallentin has not met the first part of the test set out in section 41 of theEBR, leave to appeal on this ground is not granted.

I

Ground #2: Non-Compliance

Valientin argues that HNSLI has failed to comply with a number of the conditions contained inNotice No. 2, issued May 5, 2004. Vallentin says that, as a matter of good public policy, theDirector should not issue a further approval to a proponent that has not lived up to existingobligations. She says that no reasonable Director, having regard to the public interest, couldhave decided to further amend the CofA to allow HNSLI to receive 500 tonnes of waste per dayrather than 10 tonnes of waste per day. Vallentin also submits that operation of a landfill site bya proponent that does not comply with all terms and conditions of a CofA could result insignificant harm to the environment.

The Director submits that he is obliged to consider each application on its own merits and toensure that it is consistent with applicable law and guidelines. He says that he is not empoweredto impose sanctions for alleged incidents ofnon-compliance The Director submits thatwithholding an approval as a form of punishment could constitute an unauthorized act by theDirector and open the Director to ajudicial review of his actions on the basis that he actedbeyond his jurisdiction.

HNSU submits that it is in good standing with the MOE and that there is no evidence that it hasfailed to comply with any of the conditions in Notice No. 2. Mr. Campbell, in his affidavit datedMarch 21, 2005, disaees with Vallentin’s allegations.

The next section outlines Vallentin’s submissions regarding compliance and the Director andHNSLI’s responses. The Tribunal’s findings follow this section.

(a) Vallentin claims that HNSLI has apparently contravened the County’s Tree Control by-lawby clearcutting much of the Site without a permit.

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Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vaflentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

H?’SLI submits that the alleged contravention of the County Forest Conservation by-law is amatter between the proponent and the County and will be determined by the courts. It arguesthat the documents outlining the redesign of the Site have all been clear that ultimately 9.2hectares of deciduous woods and wetlands will be removed. HNSLI says the Director wascorrect in not taking the by-law into account when he granted the approval to increase the dailyfill rate.

(b) condition 80 of Notice No. 2 required HNSLI to provide financial assurance in the amount of$509,183.00 by November 5, 2004. The amount of financial assurance was to have beenincreased to $2,3295 12.00 by January 31, 2005, ten days before the Director issued Notice No.3. Vallentin stated that, at the time her affidavit dated February 28, 2005 was prepared, it washer understanding that no financial assurance bad yet been provided to the Ministry.

Mr. Campbell says that the obligation in condition 80(a) to provide financial assurance is linkedto it being paid within 30 days prior to receiving waste at the Site. Mr. Campbell states that atthe time Notice No. 2 was issued, it had been anticipated that the landfill would be operationalby the fall of 2004. He says that due to the delays in processing the daily fill rate amendmentapplication as well as the dispute with the County over the Forest Conservation by-law,construction of the landfill has been delayed, HNSLI indicated that it has made furthersubmissions to the MOE to determine the amount of financial assurance payable and when itshould be paid. He says that HNSLI is awaiting a decision from the Financial Assurance sectionof the MOE on its submission.

Mr. Campbell submitted a letter, dated April 5, 2004, which he says forms the basis of thefinancial assurance obligation and is to cover closure, post-closure and contingency liabilities.He clarifies that there are no financial assurance requirements with respect to decommissioningthe existing waste at the Site, The Director also indicates that financial assurance is required tobe provided for contingency plans for the Site or for expenses related to any planned orunplanned closure of the Site or to the post-closure of the Site. He says it is not the Director’srole to examine the financial viability of a business venture or to look into the financial risks thata proponent is willing to undertake. The Director states it is his role to ensure financialassurance is in place, which was required in Notice No.2.

The Director states that condition 80 of Notice No. 2 requires the site owner to provide annualinstallments of financial assurance in accordance with a formula that is specified in OntarioRegulation 232/98 (Landjulling Sizes,), He states that one of the variables included in the formulais the quantity of waste received during the previous year. He says that the amounts specified in

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condition 80 are estimates and the condition requires HNSLI to update these estimates annuallybased on tonnages actually received. The Director, in his affidavit, dated March 18, 2005,indicated that in December 2004, MOE staff reminded HNSLI of its obligation to providefinancial assurance and a report which confirms the amount. He states that the report wasprovided to the MOE on January 4, 2005 advising the MOE that the financial assurance will beprovided upon the Director confirming the amount. The Director confirms that HSNLI’ssubmission is currently under review.

(c) condition 30 requires HSNLI to “forthwith carry out site decommissioning of the formerwaste disposal area.” Vallentin asserts that no decommissioning activities took place betweenMay 5, 2004 and February 10, 2005, and that the Director was compelled to amend Condition 30in Notice No. 3 to require action by a flced date.

hi response, Mr. Campbell appended a memo from Elaine Gosnell of Natural Resource SolutionsLtd. who were retained by HNSLI to provide advice with respect to condition 55 ofNotice No. 2of the CofA, which required HNSLI to hire an appropriate qualified professional to conduct anassessment of the impacts of the landfill operation on the adjacent natural heritage features,including remedial actions. Ms. Gosnell was asked to do an assessment ofwhen HNSLI couldcommence work on the Site given that it was to minimize environmental impacts on the Site towildlife. In a May 7, 2004 memo referred to by Mr. Campbell, Ms. Gosnell recommended that itwas likely that HSNU could not commence work until after September 1, 2004.

Due to the fact that vegetation clearing had to occur outside of nesting season, Mr. Campbellindicated that no work commenced on the Site until after September 1, 2004. Mr. Campbell alsostated that the Site Decommissioning Report indicated that part of the decommissioning workincluded clearing and grubbing which commenced at the end of September 24, 2004 aridcontinued through to October 18, 2004, when all work stopped due to the dispute with theCounty over its Forest Conservation by-law. Mr. Campbell said that work recommenced onFebruary 28, 2005 and has been continuing and that all the work presently going on at the Site ispart of Site decommissioning. He says that at no time was HNSLI in violation of condition 30 inNotice No. 2, or Notice No. 3, which was amended to require a commencement date of March11, 2005 for Site Decommissioning.

The Director indicated that condition 30 of Notice No, 2 did not contain a specific date for thestart or completion of the work due to various uncertainties that influence the timing of suchwork. He said that he amended condition 30 in Notice No. 3 to make the condition clearer as to

30


when HSNLI was required to begin site decommissioning in response to public and MOEconijnents that the removal of the hazardous waste should begin as quickly as possible.

(d) condition 86 of Notice Na. 2 required HNSLI to forthwith take all reasonable steps toestablish a PLC. Vailentin said it took HNSLI almost six months to do so, despite the fact that itwas supposed to provide the PLC with a reasonable opportunity to comment on the rate of fillamendment application which was submitted to the MOE on May 26, 2004. Vallentin also refersto Condition 89, which provides that the owner/operator is to provide the PLC and the Countywith reasonable notice and opportunity to make comments regarding any proposed amendmentsto the CofA. She contends that HNSLI brought an application to amend the CofA before itconstituted the PLC, which was only formed on October 28, 2004. Vallentin says that Condition7 ofNotice No. 2 requires HNSLI to ensure compliance with all terms and conditions of theavproval and indicates that non-compliance constitutes a violation of the EPA.

Mr. Campbell indicates that at the June 8, 2004 public information open house, only twomembers of the public indicated interest in participating in the PLC. He says that because of thislack of initial interest, he did not believe the committee could be set up prior to the summervacation months. He also indicated that HNSLI did not receive notification of the Countyrepresentative to the PLC until after August 3, 2004. A letter to those persons who had indicatedan interest in participating in the PLC and neighbouring property owners advising of the firstmeeting was sent out on September 20, 2004. The first meeting took place on September 30,2004. Mr. Campbell says that while the PLC may not have had the ability prior to its formationto comment on the application to amend the daily fill rate, the PLC was fully informed byOctober 28, 2004, a date prior to the second posting of the notice of the application on the EBRRegistry on December 7, 2004. Mr. Campbell has also attached a copy of a letter sent out toowners within 500 metres of the Site on September 9, 2004 advising them of the May 26, 2004application to amend the daily fill rate.

Findings:

In regard to a potential breach of the Country Forest Conservation by-law, the Tribunal agreesthat this matter is beyond the purview of the Director to enforce and that it will be dealt with inanother forum. The issue of the conflict between the CofA, which allows the cutting down oftrees at the Site, and the County Forest Conservation by-law, which prohibits the destruction oftrees in certain circumstances, will be decided by the courts.

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vallentin on behalf of Haidimand Against Landfill Transfers (HALT)arid Six Nations of the Grand River v. Director, Ministry of the Environment

While the Tribunal agrees with the Director that it is not his role to impose sanctions for noncompliance, the MOE does have a significant role to play in ensuring that the terms andconditions of its CofAs are not breached.

The Tribunal agrees with Vallentin that the issue of financial assurance for the Site is animportant one. Condition 80 of Notice No. 2 required HNSLI to provide financial assurance inthe amount of $509,183.00 by November 5,2004. The amount of financial assurance was toincrease to $2,329,512.00 by January 31 2005, ten days before the issuance ofNotice No, 3.Vallentin has submitted that these financial assurance requirements had not been fulfilled at thetime of the filing of her affidavit at the end of February 2005, even though work on sitedecommissioning was to start on March 11, 2005.

In this case, there seems to be conflicting evidence on the issue of financial assurance. WhileHNSLJ asserts that it is in good standing with the MOE and that there is no evidence that it hasfailed to comply with any of the conditions in Notice No. 2 issued May 5, 2004, it does appearthat Schedule B.3 in Notice No. 2 which sets out the dates for the receipt of financial assurancefor the Site has not been met. On the other hand, as Mr. Campbell notes, condition 80(a) linksthe receipt of financial assurance to being paid within 30 days prior to receiving waste at the Site.

The Tribunal, pursuant to section 41 of the EBR, must determine whether it appears that there isgood reason to believe that no reasonable person, having regard to the relevant law and to anygovernment policies developed to guide decisions of that kind, could have made the decision toissue Notice No. 3 in the absence of the receipt of financial assurance as set out in Notice No. 2.WhIle the Director argues that he has to consider each application on its own merit, and cannotimpose a sanction for non-compliance, the Director does have the authority to amend the CofAto update the financial assurance schedule. Condition 83 of Notice No. 2 specifically providesthat “requirements for financial assurance for this Site may be amended by the Director, fromtime to time, via an amendment to the CoLA.”

In regard to this issue, the Tribunal finds that there may have been a technical breach ofcondition 80, which provides that the amount of S509,183.00 for the year 2004 was payable“within 30 days prior to receiving waste at the Site, but no later than six (6) months of the date ofthis Certficate.” (emphasis added) The six-month period would have expired on November 6,2004, and there is no evidence before the Tribunal that financial assurance was provided by thedate submissions were filed in these applications for leave to appeal.

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However, as the Director notes, the formula is based on waste received during the previous yearand are estimates that are to be updated annually based on tonnages actually received. UNSLIhas submitted that due to delays in the construction of the Site, no waste has yet been taken at theSite, and that it is in discussions with the MOE regarding final financial assurance requirements.

HNSLI submitted its annual report on financial assurance as required on January 4, 2005advising that financial assurance will be provided. As there has yet to be any waste received atthe Site, the Tribunal finds that Vallentin has not demonstrated that there is good reason tobelieve that no reasonable person could have made the decision to issue Notice No. 3 onFebruary 10, 2005 in the absence of the receipt of the specific financial assurance required in theSchedule of Notice No. 2 and, therefore, leave to appeal is not granted in relation to this ground.

However, the Tribunal notes that financial assurance requirements are important to ensure thepublic that the funds are available to carry out any necessary mitigation, closure, long-term careand monitoring of the Site. In this regard, the Tribunal suggests that the Director inform theApplicants and the PLC as soon as financial assurance has been put in place and that he consideramending the Schedule to the CofA to reflect an updated financial assurance payment schedule.

In regard to condition 30, Notice No. 2, the Tribunal finds it somewhat contradictory thatVailentin argues in relation to this ground that no decommissioning activities have taken placeprior to the date she filed her submissions in this application for leave, contrary to therequirement in Notice No. 2 that 1{NSLI “forthwith” carry out site decommissioning of theformer waste disposal area, yet in relation to ground #3, she raises concerns about the immediatecommencement of the site decommissioning process.

While the Tribunal does not have a copy of the complete Site Decommissioning Plan and Designand Operations Report, it accepts Mr. Campbell’s explanation of the initial delay indecommissioning due to the constraints of addressing natural resources concerns, and thesubsequent delay due to the dispute with the County over the Forest Conservation by-law. TheTribunal also accepts that Site Decommissioning work is presently underway. According to theDirector, the change in the condition 30 from “forthwith” in Notice No. 2 to a date of March 11,2005 in Notice No. 3 was made in response to public and MOE concerns that the removal of thehazardous waste should begin as soon as possible. The Tribunal cannot conclude that HNSLIhas not been involved in site decommissioning activities or that the amendment to condition 30to provide for a specified date for site decommissioning work is in breach of the first part of thesection 41 test.

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EnvironmentaL Review Tribunal Decision: 04-1 56/04-157Anne Vaentin on behalf of Haldimand Against LandfiI Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

In regard to condition 86, the Tribunal finds HNSLI’s explanation of the delay in establishing aPLC to be reasonable. Further, there is evidence that HNSLI did notify the PLC and landownerswithin 500 metres from the Site prior to the second posting of the application for Notice No. 3 onthe EBR Registry of the plans to apply for an amendment to increase the rate of fill. TheTribunal finds the first part of the section 41 test has not been met in relation to the alleged noncompliance with conditions 86 and 89 of Notice No. 2.

Ground # 3: Inadequacies of Site Decommissioning Plan

Vallentin submits that information provided in the affidavits ofWilfRuiand, P. Geo. and RomeoPalombella, P.Eng., raise serious questions with the Site Decommissioning Plan. She argues thatno reasonable Director, having regard to the obligation in section 38 of the EPA to consider thepotential for hazards to human health and safety, could have decided to require “immediate”implementation of the Site Decommissioning Plan. She says that this is especially significant, asthe Director does not yet have the financial assurance required by Notice No. 2. Vallentinsubmits that further study is required before any steps are taken to implement the removal anddecommissioning of the hazardous wastes presently on the Site.

Vallentin also submits that should the decommissioning operations be commenced but thenprove to be too costly for HNSLI, there is a risk that the MOE will be left with no choice but tofinish the decommissioning. Vallentin asserts that even if HNSLI had provided the financialassurance required in Notice No. 2, there may not be enough to cover the entiredecommissioning cost. In this regard, Vallentin submitted an affidavit from Mr. Palombeila,who reviewed the 2004 Site Decommissioning Plan and a portion of the 2002 Design andOperations Report prepared by CPA. Mr. Palombelia stated that it was his opinion that thedecommissioning costs could easily be in the range of $2.5 million to $5 million and that all ofthe proposed site capacity may have to be sold just to offset the hazardous waste removal anddisposal costs. He also indicated that his assessment does not account for possible additionalcosts created by cross-contamination from the old waste deposits into formerly non-hazardouswastes and the surrounding soils and the need to manage, treat and dispose of contaminatedgroundwater and leachate. He stated that, in his opinion, the financial viability of the proposedundertaking appears to be marginal at best, and potentially a significant liability at worst.

In regard to the concerns raised by M. Palombella, Mr. Campbell responds in considerabledetail to the concern that there may not be sufficient funds available to carry out thedecommissioning. He says that he believes that Mr. Palombella is mistaken and has made

arithmetical errors in his calculations. He sets out a number of calculations and concludes that


even if the decommissioning costs were twice Mr. Palombella’ s worst-case scenario, the

undertaking would still be commercially viable,

Mr. Rulaud asserts that the Site Decommissioning Plan fails to recognize polynuclear aromatic

hydrocarbons(11PA.Hs”) as critical contaminants at the Site (i.e. those which pose the greatest

potential for harm to the environment and public health and safety) and makes no special

provisions for dealing with them. Mr. Ruland notes that there are many PAHs found at

alarmingly high levels in the existing waste, as well as in soils and groundwater at the Site. He

submits that the Site Decommissioning Plan only states that site decommissioning will be carried

out on the basis of testing using the Toxicity Characteristic Leaching Procedure (“TCLP”) for the

contaminants listed in Schedule 4 of Ont. Reg. 347. He states that be believes that this test is

inadequate because only one of the PA.Hs found at the Site is included in the TCLP testing

procedure. Mr. Ruland says that, therefore, wastes contaminated with PAHs other than

benzo(a)pyrene will not be considered to be a hazardous waste and may be re-landfllled at the

Site.

Mr. Campbell, in his affidavit, takes issue with Mr. Ruland’s assessment in that it assumes the

hazardous wastes with PAHs are going to be put back into the landfill. He says this ignores the

balance of the Site Decommissioning Report which indicates that all drums containing hazardous

waste will be dealt with and will eventually be relocated off-site depending on the nature,

quantity and composition of that waste, Mr. Campbell also states that any soil or any other

material visibly stained or contaminated would also be removed. He states that excavation

would continue until all visibly contaminated material is removed from the Site.

Mr. Campbell further indicates that material which is not visibly contaminated or stained will be

screened for elevated or undifferentiated organic vapours. Only those excavated material or soil

which showno visual evidence of appearing to contain hydrocarbon products, or elevated

concentrations of undifferentiated organic vapours would be loaded to the non-hazardous wastestaging area for temporary stockpiling for further testing. Mr. Campbell says that further testing

will be conducted using the TLCP test prior to final disposal in the engineered cell. He submitsthat the first portions of the screening mechanism dealing with excavated wastes should ensure

that most material contaminated by PAHs, including soil, should be excluded from the non-hazardous waste stockpile area.

The Director argues that Vallentin has failed to show that his decision to require the irrirnediateimplementation of the decommissioning plan was unreasonable. He says that the decision was

1oth reasonable and consistent with all applicable regulatory standards and guidelines.

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The Director says that to provide certainty for compliance purposes, a date for compliance ofMarch ii, 2005 was added to Condition 30 in Notice No, 3. The Director says that the onlymatter before this Tribunal is the date by which the proponent is to begin the decommissioning.The Director says that Vallentin has attempted to bring into question the whole decommissioningplan rather than the date by which the decommissioning is to commence. He says that Vallentinis essentially trying to get a “second kick at the can” to appeal the plan since she did not applyfor leave to appeal the decision when Notice No. 2 was posted on the ERR Registry in May 2004.

The Director submits that opening up the entire decommissioning plan, which was considered,approved and posted on the ERR in May 2004, is beyond the jurisdiction of the Tribunal.

In the alternative, the Director says that if the Tribunal goes beyond the action of the Director ofimposing a date for compliance, he takes the position that including a condition requiring theimmediate implementation of the decommissioning plan was reasonable and will likelysignificantly improve the environment. The Director says that field investigation has determinedthe location of the hazardous and liquid industrial waste on the Site and that after excavation,further characterization will be carried out in accordance with Ont. Reg. 347.

The Director responds to Mr. Ruland’s affidavit in which he states that the Site is badlycontaminated with PAHs, many of which do not have a standard in Ont. Reg. 347. The Directornotes that Mr. Ruland asserts that as there is no standard in the regulation, that high levels ofwaste contaminated with PAH’s will be relandfilled, The Director submits that ifMr. Ruland isdissatisfied with the regulation than he should be addressing this through means other than theERR leave application. However, the Director says that in all likelihood the contaminants ofconcern identified by Mr. Ruland will be shipped offsite with the hazardous waste and that,additionally, all leachate at the Site will be disposed of offsite at an approved facility, He alsosays section 14 of the EPA and section 30 of the Ontario Water Resources Act provide furthermeasures ofprotection as those sections prohibit anyone from discharging a contaminant thatcauses or is likely to cause an adverse effect on the environment or prohibits anyone fromcausing the discharge of material into any water that may impair the quality of the water.

l{NSLI also takes the position that the revision in Notice No. 3 to condition 30 to change the dateto require decommissioning work to commence by March 11, 2005 does not allow Vallentin toreopen the question of the adequacy of the Site Decommissioning Plan in her application forleave to appeal. HNSLI notes that Vallentin does not suggest an alternative date by which thedecommissioning should commence and fails to take into account that further delay in carrying

36


out the Plan means continued adverse environmental impacts, which are ongoing at the Site, dueto the waste deposited in the late 1960s and early I 970s.

Findings:

Throughout their submissions, both HNSLI and the Director have made the argument that thedecommissioning of the hazardous waste will result in a significant improvement to theenvironment, On the other hand, the Director and HNSLI have submitted that all of the issuesthat Six Nations and Vallentin raise in relation to concerns over the decommissioning of the Site,in relation to both this ground and ground #5 are beyond the scope of Notice No. 3 that onlyprovides for an increase in daily fill rate and conditions to address the increased truck traffic.

The Tribunal agrees that issues associated with the Site decommissioning and other mattersaddressed in Notice No. 2 could have been the subject of a leave to appeal application, but werenot. The Tribunal also agrees with HNSLI’s general proposition that the decommissioning willresult in significant improvement to the environment, as hazardous wastes presently located inunlined trenches will be removed from the Site. It is here that the arguments of UNSLI and theDirector become a bit disingenuous. The act of decommissioning, which HSNLI maintains willimprove the environment, is dealt with in Notice No. 2, which both HNSLI and the Director saycannot be addressed in a leave to appeal application regarding Notice No. 3.

What HSNLI and the Director cannot say is that an increase of the fill rate from 9.07 tonnes to500 tonnes a day can result in an improvement to the environment. For example, theyacknowledge that the fill rate increase will result in greater truck traffic with associated nuisanceeffects. HNSLI is more candid in stating that the increase in fill rate is to create a commerciallyviable operation and that it is the decommissioning dealt with in Notice No. 2 that should resultin an improvement to the environment. The Tribunal, therefore, rej ects the submissions made byHNSLI and the Director that the increase of fill rate, which is the subject of Notice No. 3, couldresult in an improvement in the environment. HNSLI and the Director have tried to keep theseapprovals in separate silos. To use the language of the Director, Notice No. 3 must beconsidered on its own merits.

As has been noted, Valtentin did not apply for leave to appeal Notice No. 2, which dealt with thedetails of the Site Decommissioning Plan and which included the condition that Sitedecommissioning was to start “forthwith”. The Tribunal agrees with HSNLI and the Directorthat the only issue in regard to the Site Decommissioning Plan that is before the Tribunal is thedate for its commencement that was changed from “forthwith” to a fixed date of March 11, 2005.

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Environmental Review Tribunal Decision: 04-1 56/04-157Anne Valleritin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

It is difficult for Vallentin to argue that the condition requiring the specific date of March 11,2005 for the conunencement of site decommissioning is premature given that she did not appealthe condition requiring site decommissioning to take place “forthwith” in Notice No. 2.

In regard to the issue of the adequacy of the funds available for decommissioning, the Tribunalaccepts Mr. Campbell’s evidence on this matter. Finally, in regard to the screening criteria todetermine whether wastes are acceptable for re-landflhling at the Site, the Tribunal finds that thisis clearly a matter dealt with in Notice No. 2, where no leave to appeal was sought. In thisregard, the Tribunal does not have the jurisdiction to consider the granting of leave to appeal inregard to the issue of the criteria to be used for determining the re-landflhling of wastes, a mattersolely addressed in Notice No. 2.

In regard to this ground, the Tribunal finds it unfortunate that Vallentin did not raise herconcerns about the Site Decommissioning Plan at the time Notice No. 2 was issued. TheTribunal finds that Vallentin has not demonstrated that there is good reason to believe that noreasonable person, having regard to the relevant law and to government policies developed toguide decisions of this kind, could have made the decision to issue Notice No. 3 with a change inthe requirement for the Site Decommissioning Plan to be implemented “forthwith” in Notice No.2 to a set date of March 31, 2005 in Notice No. 3. The Tribunal also notes that Vallentin’ssubmissions on this ground seem to contradict her submissions in relation to ground # 2 above,where she raised concerns that it appeared that no decommissioning activities had taken placebetween May 5, 2004 and February 10,2005.

Due to this finding that Vallentin has not met the first part of the test set out in section 41 of theEBR, leave to appeal on this ground is not granted.

Ground # 4: Truck Traffic Impacts

Vallentin raises serious questions about the adequacy of HNSLI’s Traffic Impact Study (“TIS”),prepared by McCormick Rankin, which was the primary supporting documentation for the rateof fill application.

In particular, Vallentin states that the TIS does not satisfy concerns about the potential nuisancethat such expansion might have on surrounding residents. Vallentin submits that the TIS waspredicated upon HSNLI’s representation that “the companies contracted to haul material fromtransfer stations would be required to approach the Site from the east along Highway 3 and from

the north along Haldiniand County Road 56 from the Hamilton direction. Vallentin says there isno evaluation of potential impacts along Highway 54, Indiana Road or Townline Road. She says

38


the latter two roads are of chip and tar construction and would be a shorter route to the Site thanHighway 3. Vallentin submits that if HNSLI took waste from transfer stations west of the Site,such as Brantford, London or Sinicoe, the waste carrier would be approaching the Site from thewest along Highway 54, through Caledonia, York and Cayuga. She says the situation iscompounded by the impending closure of the bridge at Caledonia crossing the Grand River. Shesays that residents along Highway 24, Indiana Road and Townline Road could potentially besubjected to a nuisance resulting from increased truck traffic.

Valientin also submits that there is no evaluation in the TIS of the suitability of Brooks Road,which all landfill traffic will use to sustain the loads associated with a site receiving 500 tonnesofwaste per day. Vallentin asserts that even the Director has acknowledged that the TIS isinadequate by his imposition of Condition 96, requiring HNSLI to undertake an assessment ofthe suitability ofBrooks Road by March 31, 2005. She submits that a matter as fundamental asthe structural suitability of the main access road to the Site is not something that is appropriate orreasonable to leave to a post-approval condition and that the Director should have been satisfiedof the suitability of Brooks Road to Sustarn the increased traffic load prior to issuing theapproval. She says that it is ironic and unreasonable that Notice No. 3 makes it a condition afterapproval has been granted, for the owners to retain a qualified consultant to carry out a study toassess the suitability of Brooks Road to sustain the traffic volume and loads associated with theSite operations. Vallentin maintains that commencement of site operations withoutunderstanding the structural impacts to Brooks Road or the potential impacts on other area roadscould result in significant haim to the environment.

The County, in a letter dated September 8, 2004 to the MOE, indicated that it remainedconcerned that the proposed fill rate will result in “decimation” to the section ofBrooks Roadbetween Highway 3 and the Site, and that they were concerned that the roadway will not becapable ofwithstanding the loads and traffic volumes associated with the proposed use. In anappended report authored by the Manager, Environmental Services Division, the County notedthat in October 2003, when HNSLI asserted that Brooks Rod had a sufficient bearing to carrysite related traffic, the fill rate was only proposed to be 10 tonnes per day with loads of less than10 tonnes. The County said that it is now anticipated that trucks weighing approximately 35tonnes will be using Brooks Road and that in the opinion of County staff, the existing BrooksRoad cannot sustain the loads and traffic volumes that would impact the road. The County urgedthat a report be submitted to investigate the road’s capacity. After outlining what it thoughtshould be in such a report, the County indicated.that the issues pertaining to Brooks Road shouldbe resolved prior to an amendment to the fill rate being approved.

39

Environmental Review Tribunal Decision: 04-156104-157Anne Valleritin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ainistry of the Environment

Mr. Campbell notes that the TIS was initially prepared in January 2003, and amended in May2004 and. August 2004. He says that the consultants were asked to do the traffic study predicatedupon H’SLI’s requirement that the companies contracted to haul material from transfer stationswould be required to approach the Site from the east along Highway 3 and from the north alongHaldimand County Road 56 from the Hamilton direction. ENSLI chose this route because it isthe intention to have a large proportion of waste material arrive transported in high capacityvehicles, from the Brampton, Mississauga or Greater Toronto area from existing waste transferstations. Mr. Campbell says that material from smaller vehicles from within the County wouldlikely approach this Site from the west along Highway 3. As a result, HNSLI made no request tostudy any proposed traffic increase for Highway 54, Indiana Road, or Townline Road, which arenot designed for truck traffic, He says contractual arrangements with proposed waste haulers arenot permitted to travel along those three roads and that was the basis for Condition 97 beingadded to NoticeNo. 3.

The Director states that Condition 97 was imposed in Notice No. 2 to make it mandatory thattrucks to the Site use only Haldimand County Road 56 and Highway 3, unless the trucks arepicking up local waste. Local waste is described in the T1S as waste picked up from within inCounty. The Director also refers to Condition 4 of Notice No. 2, which states that the Site mustbe operated in accordance with the supporting documentation. The TIS is listed as a supportingdocument in Notice No. 3. The Director says that Condition 97 was imposed based on m,,TSLI’s

intention that companies contracted to haul materials from transfer stations would be required toapproach the Site from the east along Highway 3 and from the north along County Road 56 toHighway 3,

In regard to the suitability of Brooks Road, Mr. Campbell claims that at the time of the issuanceof the CofA on February 10, 2005, it was well known to the MOE that site operations could notbegin until late June or early July 2005, assuming the continuation of construction work shortlyafter the granting of Notice No.3. Mr. Campbell says that by imposing a March 31, 2005 datefor the study and an implementation schedule for an improvement or upgrade to Brooks Road, ifrequired, the Director was ensuring that the Road would be suitable for sustaining trafficvolumes by the time those loads were expected to be travelling on Brooks Road.

HNSLI attached a copy of the report dated March 18, 2005 entitled “Geotechnical Investigation..Brooks Road Assessment” done by Inspec-Sol Inc. The Report found that remedial work isnecessary. The authors concluded that: “the existing road structure is therefore inadequate forthe subrade and increased traffic conditions and is considered susceptible to deterioration if not

strengthened..” The Report then set out recommendations for upgrading Brooks Road and

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Environmental Review Tribunal Decision: 04-156/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v, Director, Ministry of the Environment

ensuring that it is maintained in a serviceable condition. Mr. Campbell indicated that he has nodifficulty with the scope of the work required to strengthen Brooks Road and that he saw noimpediment to ensuring Brooks Road is strengthened before the Site is fully operational. HNSLIsubmitted that the work could be completed in a three-day period by the end of May or earlyJune, 2005.

Findings:

There is no dispute that the issue of increased truck traffic is at the crux ofNotice No. 3 whichincreases the fill rate from 9.07 tonnes to 500 tonnes a day. The Director has noted that “thebiggest impact related to an increase in the fill rate is that which could arise from increased trucktraffic.” Vallentin raises a number of concerns in relation to the adequacy of the TIS and theconditions in Notice No. 3. In regard to Vallentin’s concern about the lack of evaluation of thepotential impacts of Highway 54, Indiana Road and Townilne Road, the Tribunal agrees with thesubmissions of the Director and HNSLI that waste being hauled from transfer stations inBrandford, Simcoe and London are not “local waste” and that haulers will have to comply withCondition 97 and use only Highway 3 and County Road 56 to get to the Site. The MOE hasindicated that it can undertake enforcement measures if there is non-compliance.

In regard to Brooks Road, on September 9, 2004, CRA responded to a number of commentsraised by MOE in respect to HNSLI’s application for the rate of fill increase, The MOE hadrequested analysis or any technical justification to confirm that no improvement/upgrade of theservice roads is required based on increased truck traffic and high capacity loading. HNSLIindicated that Brooks Road had previously been upgraded for use as a heavy-load access routefor transfer of aggregate to the Canada Southern Railway right-of way located north of the Site,and as such, “has a sufficient bearing capacity to carry Site related traffic.” However, HNSLIwent on to indicate that it would, within six months of the amendment being approved, retain aqualified consultant to verify the suitability of Brooks Road to carry Site related traffic.

Condition 30 in Notice No.3 provides that:

By March 31, 2005, the Owner/Operator shall retain a qualified consultant tocarry out a study to assess the suitability of Brooks road to sustain the trafficvolumes and loads associated with the Site operations. The fmdings of this study,including a proposed improvement/upgrade, if required, and implementationschedule, shall be submitted to the District Manager, copy to the County ofHalditnand.

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The Tribunal notes that this condition does not indicate when the findings of the study were dueand does not provide that the completion of the study, including any upgrades, if required, becompleted prior to the acceptance of waste at the Site. Condition 96 only provides that aqualified consultant be retained by March 31, 2005. The Tribunal finds that there is good reasonto believe that no reasonable person, recognizing that the main issue arising from Notice No. 3,which provides for an increase in the fill rate from 9.04 tonnes ofwaste a day to 500 tonnes aday, is increased truck traffic, would leave to a open-ended post-approval condition the issue ofthe suitability of the road on which all landfill traffic will access the Site. As well, it is notreasonable to not have a completion date in the CofA for the study and a requirement that anyupgrade to the road, if required, be done prior to the acceptance of waste at the Site.

The Tribunal has already found that the Director’s decision, as a whole, could result insignificant harm to the environment. The Tribunal also concludes that the failure to provide forthe determination of the suitability of Brooks Road to sustain the truck volumes and loadsassociated with an increased fill rate of 500 tonnes per day prior to the acceptance of waste couldresult in significant harm to the environment. Since Vallentin has met both prongs of the section41 test, the Tribunal grants her leave to appeal based on her submissions in relation to ground #4.However, as discussed above, the study has now been completed by the consultant with thefinding that Brooks Road is not suitable in its present form to take the loaffing from the increasein truck traffic. It also appears that work may be underway to upgrade the Road and that this willtake place prior to any waste being deposited at the Site. However, this should not preclude thegranting of a remedy for Vallentin. On the other hand, the Tribunal would urge that the Directorand HNSLI meet with the Applicants and the PLC to discuss the results of the consultant’s studyon Brooks Road and its implementation.

Ground # 5: Suitability of the Site

Vaflentin submits that the information in both her affidavit and the affidavit ofMr. Ruland raiseserious questions regarding the fundamental unsuitability of the Site for use as a landfill. Inparticular, she argues that the Site may be hydrogeologically unsuitable for landfihling and thatthe Site contains provincially significant wetlands.

Valientjn acl.mowledges that these issues might have been addressed at the second step of theapproval process, Notice No. 2. However, she argues that the issuance ofNotice No. 3 providesHNSLI with the last piece of the puzzle, and presumably contains the key to a commerciallyviable operation. Vallentin submits that it is within the Tribunal’s jurisdiction to consider issuesrelevant to the entire landfill approval, all of which are fundamentally affected by the rate at

42


which waste may be received at the Site. To do otherwise would permit HNSLI to gain asignificant benefit from a process designed to deliberately limit public scrutiny,

The Director submits that all of these arguments are in relation to Notice No. 2 and claims that ifValleritin wanted to take issue with the design and operation of the Site, she should have appliedfor leave to appeal Notice No. 2. He argues that section 38 of the EBR is clear that the subject ofa leave application is the decision whether or not to implement a proposal posted on the EBRRegistry, which, in this case, is Notice No. 3. The Director submits that it is not within theTribunal’s jurisdictionto consider issues relevant to the entire landfill approval as asserted byValientin. However, he does address the substantive submissions raised by Vaflentin in regard tothis ground.

Vallentin’s concerns with the suitability of the Site and the Director and FINSL1’s responses aresummarized as follows:

Potential harm to an existing wetlandVallentin submits that the area surrounding the landfill is recognized as a ProvinciallySignificant Wetland by the Ministry ofNatural Resources (“MNR”). She says it is part of theNorth Cayuga Slough Forest, which is part of the Carolinian Forest. Vallentin states that asignificant portion of the Site is mapped by MNR as a Provincially Significant Wetland. Sheargues that the MOE cannot reasonably ignore the physical reality that the Site, which the ownerintends to massively alter, is within an area that both the Governments of Canada and Ontariohave determined to be within a sensitive environmental area in particular need ofprotection.Vallentin maintains that expanding a dumpsite on a wetland will increase the potential foraquifer contamination by landfill leachate.

HNSL1 refers to the Town of Haldin’aand Official Plan, which indicates that none of the policiesset out for provincially significant wetlands for the County apply to the Site while there is aCofA in existence. Mr. Campbell also points to a copy of a letter dated April 12, 2002 from theGrand River Conservation Authority (“GRCA”) to the County in response to the first applicationsubmitted to amend the Certificate of Approval. In that letter the GRCA notes that “at thepresent time, the Site consists of uncontained waste with no environmental protection measuresin pIae that we are aware of, Consequently, the risk associated with the contamination ofsurrounding areas, including the adjacent wetlands, will be reduced by implementing suchmeasures.”

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Environmental Review Tribunal Decision: 04-156104-157Anne Vallentin on behalf of Haldimarid Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

The Director notes that he is aware of the proximity of the provincially significant wetland. Hesays that the requirement for a buffer zone between the Site and the wetland has been met. Healso notes that there is a conditionin Notice No. 2 which requires HNSLI to consult with MNRto review any possible impacts of the operation on the adjacent natural heritage features aridfunctions. The Director also states that the MOE’ s review of HNSLI’s consultant’s reportsconcluded that the re-designed site will meet the MOE’s groundwater and surface water criteriaand therefore, there should be no impact on the adjacent wetlands. He also refers to theconditions in Notice No. 2 which require HNSLI to monitor ground and surface water impactsand to implement contingency measures if any impact is found.

Potential harm to a National Historic SireVallentin says the landfill abuts Ruthven Park, which has been identified as a National HistoricSite containing rare and endangered species.

HNSLI says that Vallentin is mistaken with respect to the statement she makes about the landfillsite abutting Ruthven Park. Mr. Campbell says that the Park is a site of approximately 1500acres extending from the Grand River all the way to Brooks Road, but north of Townilne. Hesays at its southeastern most limit, the Park is just under three-quarters of a kilometer from themost northwest point of the Site. Mr. Campbell says that it in no way abuts or is “kitty corner”to the Site.

Lack oftreatment or disposal planfor leachateVallentin submits that HNSLI has no plan to treat the leachate that will be generated from theoperation of the Site. She says that it is HNSLI’ s intention to have it collected and transported toa local waste treatment facility that is willing to accept it. Vallentin argues that it is not clear ifany such facilities can deal with high levels of PAHs, a critical contaminant present in the Site.HNSLI refers to excerpts from its November 2002 Hydrogeological Performance Assessmentand the Development and Operations Report dealing with leachate control systems. The Directorand Mr. Campbell note that under Conditions 32 and 33 of Notice No. 2, HSNLI is requiredimmediately upon l.andfihling to have the leachate quality analyzed so as to determine whichlicensed liquid waste disposal facility is appropriate for accepting and treating the leachate.

Existence ofgypsum minesVailentin submits that there are numerous uncharted abandoned gypsum mines. She says thatgypsum is nearly always associated with high underground water levels and instability. She sayswhen gypsum has dissolved underground, the resulting formations are called karsts. Vailentinsays that Mr. Bob Vick, a retired high school chemistry teacher and geologist, examined an aerial

44

Environmental Review Tribunal Decision: 04-156/04-157Anne Vallentin on behalf of Haidimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

photograph of the Site and was able to identify two sinkholes on the Site. She also submits thatthe Site is riddled with very old gas wells.

HNSLI replies that Vallentin’s evidence with respect to gypsum mines is mostly ccmjecture. Mr.Campbell says that none of the extensive number of hydrogeological reports filed to support theCofA have found any evidence of gypsum mines on the Site. He also says there is no evidenceto support the allegation that the Site is riddled with very old gas wells, In respect to “sinkholes”, Mr. Campbell says that it appears that one of these is a man-made pond dug by theformer owners and the other, a shallow area where waste was deposited, both features which hesaid the former owners confirmed,

The Director notes that both the MOE and HSNLI’s consultants are aware of old gypsum minesin the area, and, in particular, that there is one located on the adjacent property. He notes that theconsultant’s initial investigation, which included drilling boreholes on site, did not reveal any oldmine shafts/tunnels on the landfill site. The MOE’s hydrogeologist reviewed these findings andrecommended that further investigation be carried out with respect to the possible influence ofeither nearby gypsum mines or the Grand River on the bedrock aquifer. The Director notes thatHNSLI’s consultant has carried out further studies in accordance with Conditions 45 and 48 ofNotice No. 2 and that these have been submitted to the MOE and are presently under review.

Change in type ofwaste received

Vallentin submits that there has been a change in the type of waste received at the Site. Shenotes that the 1980 CofA maintained the restrictions onwaste types as were set out in the 1971Cofk. She says that Notice No. 2 permits any solidnon-hazardous municipal waste to bedumped at the site, including residential, commercial and industrial waste, includingcontaminated soils, and processed organic waste. Vallentin says there are no longer anyrestrictions on the percentage of ICI waste that may be landflhled at the Site.

Mr. Campbell says that the 1980 CofA provided for no restrictions on the holder in terms ofwhere the waste could be received from and that it was, therefore, a province-wide certificate.He submits that Notice No. 2 confirmed that the service area was province-wide except formunicipal waste.

Findings:

The Tribunal agrees that the issues raised by Vallentin in regard to this ground are matters thatcould have been pursued in regard to Notice No. 2. Vallentin concedes that she could have

45

Environmental Review Tribunal Decision: 04-156/04-157Anne Vallentin on behalf of Haidimand Against Landfill Transfers (HALT)and Six Nations of the Grand River v. Director, Ministry of the Environment

addressed these issues through the filing of an application for leave to appeal at the time NoticeNo. 2 was issued on May 5, 2004. The Tribunal finds it unfortunate that Vallentin did not do so.

However, Vallentin submits that the Tribunal can consider issues relevant to the entire approval,“all of which are fundamentally affected by the rate at which waste may be received.” Yet, thecomments summarized above in relation to this ground pertain to concerns with the suitability ofthe Site in general and with the design and operations of the Site, all ofwhich are addressed inNotice No. 2. The material in Vallentin and Mr. Ruland’s affidavits, in relation to this ground,raise numerous concerns with the suitability of the site, but are not specifically linked to theincrease in the rate of fill, The concerns raised relate primarily to the general hydro geologicconditions at the Site for landfilling and are stated as such. Even the change in waste type, whichVallentin raises as a concern, was made in Notice I’.o. 2, not Notice No. 3.

This poses a dilemma for the Tribunal. As discussed in greater detail in relation to ground #6below, HSNU’s Design and Operations Report, dated October 2002, and amended in November2003, was based on a fill rate of up to 500 tonnes/clay. The Design and Operations Report alsoindicated that HNSLI intended to apply for an increase in the fill rate from 9.07 tonnes per day to500 tonnes per day. Further, in a letter dated September 9, 2004 to landowners in the vicinity ofthe Site, CRA indicated that HNSLI’s application (Notice No. 3) did not require any changes tothe proposed design of the site. Yet as discussed in relation to grounds #3 and #6, Valientin didnot seek leave to appeal Notice No. 2, where the issues raised in this ground and the contents ofall reports dealing with the assessment of the hyrdrogeology of the Site, the Design andOperations Report, and other related reports could have been brought forward.

Therefore, the Tribunal finds that it does not have the jurisdiction to deal with the concernsraised by Vallentin in regard to the issues raised in this ground as they pertain to Notice No. 2and not Notice No. 3. However, the Tribunal recognizes that both HNSLI and the Director havetried to respond to the substantive concerns raised by Vallentia in relation to this ground.

Ground #6: Flawed Approvals Process

Vallentin submits that normally any proponent wishing to establish a new 600,000 cubic metrelandfill in Ontario would be subject to a mandatory public hearing. She maintains that theapproval process followed by HNSLI was designed to circumvent that requirement. She arguesthat in 2001, the new owners of HNSLI identified the existence of a closed landfill and a bareCofA that had never been revoked by the Director, even though the Site had been closed for over20 years. Vallentin maintains that HNSLI proceeded to apply for an approval that relocated the

46


landfill to an entirely different footprint on another part of the Site and that the Director approvedthese changes without referring the application to the Tribunal for a hearing. She says thatHNSU then sought approval for the last piece of the puzzle, an increase in the rate at whichwaste may be received at the Site and that the Director approved that change without a publichearing, despite 155 submissions in response to the ERR posting.

Vallentin submits that no reasonabie Director, having regard to the hearing provisions in the EPAand the Ministry’s Statement of Environmental Values, could have made the decision to approvea new landfill site at the site of the closed Edwards Landfill Site in three steps in order to avoid apublic hearing on the application, especially when construction and operation of the Site couldresult in significant harm to the environment. She argues that “this unconscionable process canbe redressed through the granting of leave to appeal the issuance of Notice No. 3.”

HNSLf submits that Vallentin’s submissions are flawed, It says that it has not established a“new 600,000 metre cubic landfill.” HNSLI says that it obtained an administrative ruling on theexisting capacity of the Site and asked for permission to redesign the Site to make use of thatcapacity while cleaning up the hazardous waste that was deposited on the Site over 30 years ago.It says that once the administrative ruling was obtained, HNSLI put forward its application forredesign of the Site for which there was considerable public notice and consultation yet noapplications for leave to appeal the redesign were filed once it was approved on May 26, 2004.

HNSLI also notes that there were requests for a designation of the Site under the EnvironmentalAssessment Act, which were denied by the Minister in January 2004. It states that only after thislatter decision was made by the Minister, did further processing of the application proceed withthe Director’s decision to permit the redesign of the Site being made on May 5, 2004 (Notice No.2). HNSLI says that during the period from November 2002 to May 5, 2004 there wasconsultation with the County and a number of public meetings were held.

The Director submits that this leave application can only address Notice No. 3. The Directorargues that Vallentin has attempted to broaden the scope of this application by addressing allthree amendments to the CofA and that, therefore, the Applicant’s claim that the approvalprocess was flawed is not relevant to the leave to appeal test. However, he goes on to deal withVallentin’s submissions on this ground. The Director says that it is the proponent’s choice as tohow to apply for amendments to a CofA, He says that the proponent submits an application andthe Director assesses the application that is before him.

HNSLI, in this case, chose to submit three separate applications over a period of four years. TheDirector says that there was not a requirement for a hearing for the application to amend the

47


CofA nor would there have been if the applications were submitted as one combined application.He also says that it was his opinion that a discretionary hearing under section 32 of the EPA wasnot necessary and that this decision is also not relevant to the leave test under the EBR.

In summary, the Director says that Vallentin has failed to indicate how this ground relates to theleave test set out in section 41 of the EBR.

Findings:

The Tribunal can understand Vallentin’s frustration with the lack of a public hearing for such alarge undertaking as this one, involving the decommissioning of a landfill site with aconsiderable amount ofhazardous waste and the recominencement of a landfihling operation atthe Site. However, the Tribunal is limited by the test set out in section 41 of the EBR for adetermination of whether leave to appeal can be granted. It does not appear that there is any lawor policy preventing a proponent from applying for an amendment to a ColA in stages. In regardto the first step, that is, determining the site capacity to allow HNSLI to decide whether toembark on a decommissioning and subsequent landfill operation, while there is some debatebetween the parties as to whether an “application” was filed or whether HNSU was just seekingadministrative clarification, there was no law or policy brought to the Tribunal’s attention thatsuch a determination could not have been made.

However, where the Tribunal has more difficulty is the separation of Notice No. 2 from NoticeNo. 3, given the circumstances of this case. This is not the situation where a proponent appliesfor a design for a specified fill rate and then determines a few years later that it would bepreferable to increase the fill rate and then applies for an amendment. Here, Mr. Campbell saysthat BNSLI always intended to apply first to re-design the Site and once that application wasgranted, to apply to increase the daily fill rate. He says that this intention was set out in theDesign and Operation Report which indicated that the site design was to accommodate a fill rateof up to 500 tonnes a day and that “the Proponent anticipated seeking an amendment in thefuture to the fill rate to permit landfiuing of an additional 490 tonnes per day of ICI waste.”Gregory Ferraro, P. Eng., CRA, in a letter to the Director dated May 26, 2004, outlined thepublic consultation activities undertaken and noted that a number of meetings with the publicidentified that a fill rate amendment was to be sought by BNSL1.

HNSLI, in its submissions, also notes that “it is obvious that a daily fill rate of 10 tonnes per daywould not create a commercially viable operation sufficient to enable the HNSLI to pay for the

decommissioning of the hazardous waste” (emphasis added). The Tribunal questions why, if it is

48


so obvious that the approved daily fill rate of approximately 10 tonnes a day is not viable, thatHNSLI not apply for the increase at the same time it was putting forth its plans to decommissionthe Site and revive its operation as a waste disposal site.

Again, if so obvious, it is not clear why the Director agreed to this two-step process, once the sitecapacity had been determined in Notice. No. I. While the Director maintains that it is aproponent’s choice as to how to proceed with amendments to a CofA, in this case, the Directorclearly knew that the approved daily fill rate of 9.07 tonnes would not make the operation viable,and that a signifIcant increase in daily fill rate would be necessary in this regard. The Directorsays it must “assess the application that is before him.” Here, the documents clearly indicatedthat the Site was being designed to accommodate a daily fill rate of 500 tonnes. Yet, the Directormade the deliberate decision to agree with HNSLI that it could proceed in the way it did byseparating the application for decommissioning and redesign of the Site from the application foran increase in the rate of fill.

In the posting of the Notice of Decision for Notice No. 2 on the EBR Registry on May 7, 2004,the MOE summarized the comments it had received from the public, and in response to acomment that truck traffic should have been addressed as part of the review of the application,responded that the “daily rate of fill, hence the number of trucks going to the landfill site remainsunchanged from the original approval.” This comment was made with the fall knowledge that anapplication fot a rate of fill increase was pending. In fact, it was only three weeks later, on May26, 2004, that KNSU filed its application for a rate of fill increase.

Herein lies the dilemma for the Tribunal. The information in the Design and Operations Reportand HNSLI’ s intention to later apply for an increase in site capacity was public knowledge. Yet,as discussed in relation to grounds 3 and # 5 above, Vallentin did not seek leave to appealNotice No. 2, where the contents of the Design and Operations Report, and the other reports fliedby HNSLI in relation to its application for Notice No. 2, could have been raised.

The Tribunal agrees that there is no mandatory requirement for a hearing in regard to Notice No.3. Further, the Minister clearly has the discretion not to subject the undertaking to theEnvironmental Assessment Act, a decision she made in January 2004. Section 32 of the EPAgives the Director discretion as to whether to require a public hearing, which he chose not toexercise. No party takes issue with the discretionary authority of the Director to have required apublic hearing in relation to Notice No. 3. While his decision not to hold a public hearing maybe unfortunate given the magnitude of the undertaking and the public concern, the matter beforethis Tribunal is whether or not leave to appeal should be granted in relation to Notice No. 3, not

49

Environmental Review Tribunal Decision: 04-1 56/04-157Anne Vallentin on behalf of Haldimand Against Landfill Transfers (HALT>and Six Nations of the Grand River v. Director, Ministry of the Environment

Notice No. 2. Vallentin’ s exhortation to the Tribunal that the entire process can be redressedthrough the granting of leave to appeal the issuance of Notice No. 3 is one that the Tribunalreluctantly finds that it cannot entertain.

Finally, Vallentin refers to the MOE’s commitment to public participation as asserted In itsStatement of Environmental Values as follows: “The Ministry is committed to publicparticipation and will foster an open and consultative process in the implementation of theStatement of Environmental Values.” The Tribunal finds that this statement while supporting theimportant concept ofpublic participation cannot be read as grounding a claim that a “publichearing” is required and that no reasonable person could have made the decision to approveNotice No. 3 without a public hearing. Due to this finding that Vallentin has not met the firstpart of the test set out in section 41 of the EBR, leave to appeal on this ground is not granted.

However, the Tribunal notes that greater accountability and transparency in environmentaldecisionrnaking and protecting environmental integrity, two key purposes of the EBR can beaddressed by a Director exercising his discretion to hold public hearings under section 32 of theEPA in relation to proposed amendments to CofAs for major waste management undertakings,such as the decommissioning and reopening of a existing landfill site. In this case, the Tribunalnotes that from the time HNSLI submitted its application for Notice No. 2 on November 4, 2002to the time approval was granted for Notice No. 3 on February 10, 2005, there would have beenample opportunity for a public hearing under the EPA on the merits of the amendments toHNSLPs CofA.

Decision

All the written documentation submitted was reviewed in detail by the Tribunal. The Tribunalwants to thank all Counsel for their detailed submissions in this matter.

For the reasons stated above, the Tribunal finds that the section 41 test for leave to appeal hasbeen met by both applicants. The Tribunal, therefore, grants both the application of Six Nationsand the application of Vallentin for leave to appeal the Director’s February 10, 2005 decision toamend HSNLI’s CofA (Notice No. 3).

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Within 15 days of the release of this decision, any of the leave applicants who wish to appeal theDirector’s decision shall serve on the Tribunal, the Director, HNSLI, the EnvironmentalCommissioner and the other leave applicant, a notice requiring a hearing, setting out the groundsfor their appeal on which they intent to rely in respect of Notice No. 3. As discussed above, theTribunal can only address matters in relation to the subject of the posted instrument, that is,Notice No.3.

The Tribunal urges both leave applicants to enter into discussions with the Director and }fNSLIto resolve outstanding issues.

Applicationfor leave to appeal by Six Nations granted.Application for leave to appeal by Vallentin granted.

“Toby Vigod”Toby Vigod, Chair

51

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JUL 19 2006 937 RN FR DIUISIONAL COURT41S 32? 5549 TO 94163619459 P.02/13

DIViSIONAL COURT FILE NOW: 291105DATE: 200707i

ONTARIOSUPERIOR COURT OF JUSTICE

DiVISIONAL COURT

BETWEEN

)ANNE VALLENT1Th, ROSANNE ) Mr. A. Roman and Mr. I. Tidball, for theBELLIVEAU AND HALDIMAND ) ApplicantsAGAINST LANDFILL TRANSFERS )

)Applicants )

)-and. )

))

DIRECTOR, MINISTRY OF THE ) Ms. I. OConnor and Mr. A. Enei, for theENVIRONMENT AND HALDIMAND- ) Directory Ministry of the EnvironmentNORFOLK SANITARY LANDFILL NC. )

) Mr. D. Rubiti for Haidimand-Norfolk) Sanitary Landfill ln.)

Respondents )))) HEARD AT TORONTO: March 15, 2006)

HOWDEN, J.

l1 This application for judicial review seeks to quash three decisions of the DirectorsMinistry of the Environment, affecting a previously approved waste disposal site in the Countyof Haldimand, located four kilometers east of Cayuga. The applicants submit that the Directorexceeded his statutory authority by failing to refer the applications of the respondent HaMimandNorfolk Sanitary Landfill Inc. (H-N.SLI) to the Environmental Revie’ Tribunal for a publichearing pursuant to s3O(1) of the Environmental Protection Act, R.S.O. 1990, cE. 19.

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Background

[21 The waste disposal site was first approved under the Wa$re Management Act, S.D. 1970,c.44 as a landfill site in 1971 by a provisional certificate, which required submission of a detailedsite plan in conformity with the Act. The provisional certificate was renewed several timesthrough the 1970’s under the Environmental Protection Act, S.O. 1971, c.86 and theEnvironmental Protection Amendment Act, S. 0. 1972, e. 106, In 1980, a provisional certificateof approval was issued by the respondent Director for the use and operation of the 15-acre wastedisposal site. This certificate contained no expiry date. It stipulated that the category of wastewas limited to domestic, with a very small component of other non-hazardous waste. Beyondthis restriction, the provisional certificate required that the site operation was to comply with asite plan, the application and supporting information forms. The site was operated on. a smallscale until the late 1970’s. Since then, it has been mostly dormant.

[3] The 1980 provisional certificate of approval was never suspended or revoked and remainsin effect. When H.-N.S.L.L first applied in. December 2001 to redesign this Site by a proposal toamend the certificate, no site plan for the waste disposal site was found. The 1 80 certificaterestricted the type of waste and the acreage of the waste disposal site but without the site plan,the certificate was silent as to capacity of the waste disposal site, its operating area within the 30-acre lot, and other effective environmental controls. The application contained a maximumdepth of fill but no maximum height. It proposed a fill rate of 10 tons per day.

Statutory Framework and the Director’s Decisions

[4] The relevant statutory provisions of the Environmental Protection Act include thestatement of stamtory purpose [s..3(1)1, the role and effect of certificates of approval [s27(1)),requirement of a public hearing ts.30(1)1, the Director’s discretion as to public hearing (s.32(i)],application for certificate of approval (s.3 8), and powers of the Director [s.39(l) and (2)1.

Section 3(1) The purpose of this Act is to provide for the protection andconservation of the natural environment. R.S.O. l90, c. E.19, s, 3.

Section 27(1) No person shall use, operate, establish, alter, enlarge or extend,(a) a waste management system; or

(b) a waste disposal site,

unless a certificate of approval or provisional certificate of approval therefor has beenissued by the Director and except in accordance with any conditions set out in suchcertificate. R.S.0. 1990, c. E.19, s, 27.

Section 30(1) Where the Director receives an application for a certificate of approval forthe use, operation, establishment, alteration, enlargement or extension of a waste disposalsite for the disposal of hauled liquid industrial waste or hazardous waste as designated In

.UL IS 00S S39 All FR DI)ISIONL CCURT4IS S27 5545 TO 94163513459 P.04/13

the regulations or any other waste that the Director ascertains, having regard to the natureand quantity of the waste, is the equivalent of the domestic waste of not less than 1,500persons, the Director shall, before issuing or refusing to issue the certificate of approval,require the Tribunal, by a notice in writing, to hold a hearing. R.S.O. l90, c. E.19,s. 30 (1); 2000, c. 26, Sched. F, s. 12 (12).

Section 32(1> Where the Director receives an application for a certificate of approval forthe use, operation, establishment, alteration, extension or enlargement of,

(a) a waste management system that does not include a waste disposal shereferred to in section 30; or

(b) waste disposal site other than a waste disposal site referred to in section 30,the Director may, before issuing or refusing to issue the certificate of approval, requirethe Tribial, by a notice in writing, to hold a bearing. R.S.O. 1990, c. E.19, s. 32 (1);2000, c. 26, Sched. F, s. 12(12).

Section 38 An applicant for a certificate of approval shall submit to the Director plansad specifications of the work to be undertaken together with such other information asthe Director may require. R.S0. 1990 c S.19, s. 38.

Section 39(1) The Director, after considering an ajpllcation for a certificate of approval,may issue a certificate of approval or provisional certificate of approval.Section 39(2) The Director may,

(a) refuse to issue or renew;

(b) suspend or revoke; or

(c) impose, alter or revoke terms and conditions in, a certificate of approval orprovisional certificate of approval where,

(d) the waste management system or the waste disposal site does not comply with thisAct or the regulations; or

(e) the Director considers, upon probable grounds, that the use, establishment,operation, alteration, enlargement or extension of the waste management systemor the waste disposal site may create a nuisance, is not in the public interest ormay result in a hazard to the health or safety of any person.

(5) The three decisions of the Director that are central to this application for judicial revieware referred to as Notices 1, 2 and 3. The application to redesign this site, which resulted inNotice 1, as well as the subsequent two applications and Notices 2 and 3, were posted publicly

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and contemporaneously on the Environmental Registry pursuant to the Environm.snuzl Bill ofRights1 SD,, 1993, c.28, s.S(1) (EBR). The first application to redesign the site operation waswithdrawn before issuance of Notice I • and Notice 1 itself was not posted on the registry,because the Director’s position is that Notice 1. prohibited any operation, alteration orenlargement of the site, The Environmental Registry is an internet site, the purpose of which isto provide information about the environment tø the public. y s.6(2) of the EBR, informa±ionabout the environment includes information about proposals and decisions that could affect theenvironment such as notice of applications for approvals under s.27 of the .nvironmenta1Protection Act. The public is given 30 days in which to submit comments to the Ministry(s.22(I), EBR). Notice of a proposal to amend or revoke an instrument need not be given if theMinister considers the potential effect to be insignificant (s.22(3), EBR).

t6] Notice 1 was issued on August 22, 2002. It amended the existing provisional certificateof approval by determining the capacity for which approval had been granted in 1971. Therespondent H.-N.S LI. had ittitiated the process through its consultants in. July 2001, indicatingits intention to apply to redesign the waste disposal site and its operation. As no site plan wasavailable from which the capacity of the Waste disposal site (as approved) could be determineddirectly, the engineering firm retained by H.-N.S.L.I. submitted an estimated capacity calculationfor the Director’ s staff and the Director to review. The staff initially accepted that calculation atover 800,000 cubic metres.

t71 Prior to this time, in the early 1990’s, the Ministry of the Environment had become awareof the problem of older approved sites for which no capacity limits were contained in thecertificates of approval. A committee established by the Ministry developed the LandfillCapacity Detennination Protocol in December 1993 to provide a standard methodology todetermine approved capacities. The evidence of the Director, which is not seriously disputed onthis point, is that the protocol was based on engineering practices of the 1970’s and has beenused in other cases for this purpose, including cases before the Environmental Review Tribunal,

8] The Director’s staff reviewed the capacity issue following receipt of the formalapplication to redesign the site and found that its original view was in error. From the 1971documents, it was known that the trench method was being used on the site, an operationalpractice that resulted in less capacity for waste disposal. The Director advised I-L-N.S.LL onApril 12, 2002 that the original estimate was not supportable. The revised calculation of 624,065cubic meters was submitted and was accepted. The staff and the Director found it to besupportable because (I) it was based on the landfill protocol, and (2) it recognized the “trenchmethod with banks” used on this site and described in the Ministry guideline entitled WasteDisuosal by Landflhling 1974, as welt as soil balance for this site, good engineering practices,and waste disposal methods of the 1970’s (Affidavits of D.Odame-Osafo, para.13 and I. Parrott,psra.28).

[9 Notice 1 had a further important restriction. No waste could be placed at this site untildesign and operational plans and hydro-geologicalisurface water assessments were received andapproved.

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(1 0J H...NS.LJ. then brought forward its application to redesign the landfill site on November4, 2002, resulting in the Director’s decision contained in Notice 2 of May 5, 2004. During thepublic comment period following the EBR posting, two individuals requested that the Ministerdesignate the proposal under the Environmental Acsessmenr 4cf, R.S.O. 1990, c.E. 18. Thoserequests were not accepted by the Minister on the grounds that (1) the problems of historiccompliance were met by the fact that a new operator was in place and by the updating ofenvironmental controls on the operation and (2) the concerns about site conditions andenvironmental impact were addressed by the reviews of all environmental, health and safetyaspects under the Environmental Protecrkrn Act and the Onzrio Wattr Resozrces Act, R.SO.l90, c.0.40, (Affidavit of I. Parrott paras. 33-35 and Ex. M.) By Notice 2, the Directoramended the provisional certificate of approval by attaching 94 conditions within. which thewaste disposal site must operate. The landfill area remained unchanged at 15 acres. Thelocation of the wase disposal site within the 30-acre property was fixed north of the existinglandfifled area. The conditions continued to restrict the type of waste to non-hazardousmunicipal waste at a fill rate of 10 tons (9.07 tonries) per day, and required the decommissioningof the prior waste disposal operation and removal of contaminated soil from the site. They alsoaddressed ground and surface water issues, air!du.st monitoring, hours of operation, and nuisancecontrol, among other things.

[Ill On May 26, 2004, H.-N.S.L.L applied to increase the rate of fill to 500 tonnes per day.Notice 3, issued February 10, 2005, represents the Director’s approval of that application byfurther amending the provisional certificate of approval as requested, subject to conditionsregarding traffic control. The application was posted on. the Environmental Registry for publiccomment on two separate occasions. Comments were received and considered prior to issuanceof Notice 3. The applicants have since been granted leave to appeal Notice 3 to theEnvironmental Review Tribunal under the EBR. They did not seek leave to appeal from Notice

t12 Although discretionary relief was clainied by H-N.S.L.L on grounds of delay andexistence of an alternative remedy by way of leave to appeal under the EBR, it is not deemednecessary to deal with those submissions in view of the conclusIons I have reached. The issuefundamental to this application is one of statutory interpretation.

Positions of the Parties

[13] The applicants’ position is that s.30(1) of the Environmenjal Protection Act required theDirector to refer the Issues in all three notices to a public hearing before the EnvironmentalReview Tribunal. Mr. Roman submitted on their behalf that, unlike s.32(1i, s.30(1) gives theDirector no discretion in’ that regard. By s.30(1), landfills are divided into two capacitycategories: those for disposal of waste from less than 1500 persons and those for waste fromgreater than 1500 persons. The subject site is for disposal of greater than 1500 person& waste;therefore, any significant change must be the subject of a public hearing. Because the decisionof the Director not to refer the issue of capacity and the two applications by H.N.S.L..L to apublic hearing is one of statutory interpretation and affects the jurisdiction of the tribunal as wellas himself, the standard of review should be correctness, and he exceeded his authority unders.3 0(1) in not referring those matters to a public hearing.

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[14] Counsel for the applicants further argues that no volumetric capacity had beendetermined for this waste disposal site and that the process leading to Notice 1 involved anapplication to determine the capacity gap which requires a public hearing under s.30( 1). It issubmitted that s.30(1) requires a public hearing whenever any material change to conditions of acertificate of approval is contemplated to an over’ 1500 waste equivalent site which may affectresidents in the neighbourhood. Mr. Roman several times drew an analogy to an application forthe establishment of a new waste disposal site on the same land with the capacity as determinedhere where no prior certificate of approval had issued. He stated that s.30(i) required a hearingin that case and therefore a bearing should be required in this instance. It is implicit in theapplicants’ submission that where capacity of a waste disposal site is above the equivalent wasteof 1500 persons, a proposal to change the site or conditions must be subject to a tribunal hearingunder s.30(1). When asked if this view of s.30(1) meant a public hearing even where the changesought was of a tri’vial nature. Mr. Roman answered no, that a public hearing was required onlywhere the change was a signifIcant or material one.

[153 In summary, the applicants view the three Notices as one application that changes the siteapproval by inserting a capacity well beyond the waste equivalent of that from 1500 residents.Even if Notice I were upheld, Notices 2 and 3 alter and enlarge the existing landfill and changethe fill rare significantly, and thus fall within s.30(1) requiring a public hearing. Mr. Romancited Re Thwnship of Narwich and Ridge Landfill Corp. Limzted (l980) 31 O.R (2d) 363(Div.Ct) and Harwirh (Township) v. Ridge Lcrndfill Corp., [1981 0.3. No. 994 (Div.Ct) asauthorities for the proposition that any proposal of substantial change in the terms of a certificateof approval, including insertion of a capacity lithit where none existed before, comes withins.30(l) and therefore requires a public hearing.

[163 Counsel for the Director opposed the applicants’ view of s.30(i) Ms. O’Connor and Mr.Engel subrniued that, using a contextual approach, the Director acted correctly under s.39(i) toauthorize the amendments to the existing provisional certificate, because s.30( 1) does not applyto the H.-N.S.L.L proposals. The public’s right to a hearing under s.30(I) is not engaged herebecause no increase to the site capacity or change to the type of waste was involved in theDirector’s decisions.

[17] For purposes of the standard of review, the fundamental issue in this case is theinterpretation of s.30(i) of the Environmenzal Protection Act. I accept the submission of counselfor the applicants that the standard of review is correctness, To be clear, the issue focused on bythe applicants is not ascertainment by the Director of the equivalent ofdomestic waste of not lessthan 1500 persons, a problem no doubt well within the Director’s expertise and core jurisdictionto which a more deferential standard would be accorded under the pragmatic and functionalapproach in Pushpanathan v. C’anada (Minister ofCitizenship and ImmigratIon), [19983 1 S.C.K.982 (SCC.). The applicants’ point in this case is that the Director exceeded his authority in notrefetring the respondent H.-N.S.L.I.’s intended initiative to the Environmental Review Tribunalfor p.thlic hearing because the Site capacity is several times the order of maiitude of thestandard for the 1500-person waste equivalent of 4000O cubic metres referred to in OntarioRegulation 232/98, s.2, and the Landfill Capacity Determination Protocol, MOE, December1993, para. (vil). The determination of the Director not to refer under s.30(1) is the target of thisapplication for judicial review, informed by the applicants perception that the Environmental

JUL 19 2006 9:40 M FR DIU1SIONL COURT41B 327 5549 TO 94163613459 P.08/13

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Protection Act process requires a public hearing for any material change in a waste disposal sitewith a capacity above the equivalent waste from 1500 persons.

Analysis

[18) The starting point for statutory interpretation in Canada is the approach to legislativemeaning set out in E.A. Driedger’s Construction ofStatutes (4th ed., R. SuUivax, Butterwortha,

-2002) at pg. 1

Today there is only one principle or approach, naxnely the words of an Act are tobe read in their entire context, in their granmatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the Intentionof Parliament

See Bell E.xpressVu Limited Partnership v. Rex, [20021 2 S.C.R. 559, at para. 26..7; Barrie Public Utilities v Canadian cable Thievisian A.sociafion, [2003] 1S.C.R. 476, at para. 20; Hilewitz v. Canada (Minisby of Citizenship andImrnig-ration); Re fang v. Canada (Ministry of Citizenship and Immigration)[2005] 2 S.C.R. 706 atpara. 81.

[19) The Environmental Protection Act, as it exists today, dates back to the early 1970’s andretains much of its early language in the sections dealing with regulation of waste managementsites, The growth in expertise and experience novi available to the Minister and to his delegate,the Director, as well as to the Environmental Review Tribunal, in carrying out their respectiveduties, is considerable. The purpose of the Act remains as expressed in s.3 (1) — to provide for theprotection and conservation of the natural environment. Section 30(1) must be read within thecontext of that purpose, the Act as a whole and, in particular, the statutory scheme forenvironmental control established in the Environmental Protection Act.

[20] The control device selected for waste disposal sites was and remains the certificate ofapproval. Despite the increased knowledge and regulatory sophistication now available toapplicants for approval and to the Ministry, certificates and provisional certificates issued 20 to30 years ago, without a sunset condition, continue in effect.. The Legislature has not seen fit torevoke or suspend them, nor has the Minister or the Director. Without a certificate of aDprovaL,no one can use, operate, establish, alter, enlarge, or extend a waste disposal site. Where there is aprovisional or Ml certificate of approval, the activities must comply with all conditions of thatcertificate.

[21} The Director’s factum (,para. 75) correctly stares that the certificate for the waste disposalsite in question continued to confer an approved status without limits on location within the 30-acre property, height above grade, and ultimate capacity. Without these controls in plwze endwithout the site plan referred to in the provisional certificate of approval, the proponent of thissite would be limited as to type of waste (domestic, non-hazardous) but as to capacity, “only bygood engineering practice in determining when the site had reached its capacity”. The Minister

JUL 13 2006 9:4, RM FR DIL)ISIONRL COURT41B 327 5549 TO 4t63613459 P,Ø9/13

would be under a duty, of course, to respond to any detrimental environmental effects incontravention of the law if or when they might be found to have occurred,

[22] The authority over issuance of certificates of approval or their amendment, suspension orrevocation is given to the Director under s.39. In cases falling within s.30(l), the EnviromnentalReview Tribunal has the discretion and power over the certificate’s issuance, amendment orrevocation, which it exercises through a public hearing process. Subject to limited rights ofappeal, the Tribunal’s decision must be implemented by the Director (s33). For waste disposalapplications within the statutorily specified activities other than a waste disposal site referred toin s.30(1), the Director has a discretion to refer the matter to the Tribunal for public hearing ornot. It is apparent from the legislative scheme that the environmental purpose of the Act does notin itself require a public hearing. The Act recognizes that in eases not coming within s.30(l) andnot referred to a hearing under s.32(I), no public hearing will be required. Public notice andresponsiveness to public comment is maintained under the EBR. internet posting requirementsand other public notice provisions in the statute and regulations and the leave to appeal provisionunder the EBR.

[23J Section 30(1) applies to applications not only for use or establishment of a new wastedisposal site, but also to applications for use, operation, alteration, enlargement or extension ofany waste disposal site including sites subject to prior certificates of approvaL It is this omnibuscharacter of s30(1) in relation to the multiple activities specified in ss.27, 30(1) and 32(l) thathas created some difficulty. However, when considered in the context of the particular legislatedantivity or activities contemplated in any particular application, its meaning becomes clear. It issignificant that s.32 refers to a site “other than a waste disposal site referred to in s.30” and to awaste management system “that does not include a waste disposal site referred to in s.30”. In sostipulating, the Legislature obviously saw a s.30(l) waste disposal site as an objecti’velydeterminable concept.

[24] Section 30(1) applies to waste disposal sites failing within the following two criteria orbenchmarks:

(i) where the application for approval is to use, establish, alter or enlarge a site forthe disposal of hauled liquid industrial waste or hazardous waste, or

(ii) where the site application proposes to use, establish, alter or enlarge a site fordisposal of arty other waste determined by the Director to be the equivalent of thedomestic waste of nOt less than 1500 persOns.

The legislation uses type of waste and quantity of waste (where it is neither hazardous nor liquidindustrial) as the two determining thresholds for its application.

[25) In this case, clearly no change in the type of waste, or the waste stream, is in issue, Noadditional capacity was sought beyond the capacity determined to have been approved in 1971and continued in the 1980 provisional certificate of approval. Where waste other than liquidindustrial or hazardous waste is to be disposed of, the Legislature set the benchmark to establish,use, alter, enlarge or extend a waste disposal site as the I 500-person-waste-equivalent. Where anew site is proposed for use nd establishment as a waste disposal site to receive a quantity of

JUL IS 2009 9:41 AM FR DIVISIONAL COURT4I,S 327 5549 TO 94163613459 P.10/13

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“other waste” exceeding the 1 500-person waste equivalency, s.30( 1) requires a public hearing.Where the application relates to an already approved site, i.e. an application to alter, extend orenlarge it, and no change in the waste stream is sought, the alteration, extension or enlargementmust exceed the 1 500-person waste-equivalency in order to require referral for public hearingunder s..30( I). In other words, an increase to that equivalency triggers the public hearingrequirement under s.30(1). it would seem absurd to require a public hearing in every case wherea change in a condition which affects no one significantly may be requested, simply because theparticular site, already approved, has an over-I 500 person waste capacity. Counsel for theapplicants suggests that “significant” or “material” should be read in to mcidif’ the alteration orenlargement. In my view, the legislation would become a source of subjective uncertainty andunnecessary frustration if t.bis were to be the holding. As well, if the intent was to modify themeaning of the activity words hi s.30( 1) to significant’ or material’ use, alteration orenlargement, the Legislature would have done so.

[26) The proponent H.-N.S.L.L requested a determination of the volumetric capacity of thisapproval site. The Director had at his disposal the lancli1l determination protocol which hadbeen produced by a ministerial committee in 1993 to address the problem here — the continuingviability of old certificates of approval which lack a capacity control. The evidence is that theprotocol was developed according to recognized contemporary engineering practices in order toprovide an objective standard for such determinations. See: Howick (Township) v. Ontario(MOE), [2005) O,E.R.TD. No. 30 (E.R.T.). The Director made the determination of capacity atthe reduced amount to reflect the trench method of landfill approved in 1971 for this 15-acre site.No increase in such capacity was sought or approved by Notices 1, 2 and 3. Therefore theDirector acted in accordance with s.30(1) In i referring the capacity determination and theapplications to redesign and to increase the Liii rate.

[27] The cases cited by the applicants counsel do not support their position on thisapplication. In Re Township of Harwich c#ld Ridge Landfill Corp. (1980), 31 O.R. (2d) 363(Div. Ct.), a provisional certificate had issued without limits on the type of waste to be depositedon the site. It was renewed annually without a hearing. The Ministry issued a provisionalcertificate without a bearing providing that only specified wastes could be received on the site.They included certain types of hazardous wastes. The Court held that because the Directorpurported to renew a certificate allowing hazardous waste to be deposited onthe site, it was notsimply a renewal of the prior provisional certificate and a hearing was required by thepredecessor to s,30(l). In the subsequent case in 1981, the Divisional Court held that the type ofwaste to be disposed of is limited to only those named in the certificate. In the application beforeus, Notice I effected no change in the type of waste, nor did Notices 2 and 3. No change wassought in. the capacity of the approved sire. In the absence of the site plan, capacity wasdetennined in accordance with the ministerial protocol for approved waste disposal sites as of the1971 approval. Therefore neither of the conditions required for a public hearing under s30(1)was engaged.

Condusion

[281 1 find that the Director acted correctly in not referring the subject of Notices 1, 2 and 3for a public bearing under s.30( I) of the Environmental Protection Act. He did not act in excess

JUL 19 Ø6 9:4 RN FR DIU1SIOAL COURT4I6 37 5549 TO 94163613459 P. 11/13

- l0

of his authority. As the Act reads at the present time, it is my finding that the Director acted inaccordance with its intent and meaning. The application is dismissed.

[291 If costs are not aeed, counsel may ifie written submissions within 30 days.

2.pstein,J.

Snton, 3.RELEASED: July 19 2006

JUL 19 943 pj FR DIOISIONRL COURT4IS 327 5549 TO 94163613459 P.12/13

11 -

DIVISiONAL COURT FILE NO.: 291105DATE: 2OO07jg_

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNE VALLENTIN, ROSANNE BELLIVEAUAND HALDIMAND AGAINST LANDFILLTRANSFERS

Applicants

• and—

DIRECTOR. MINISTRY OP THEENVIRONMENT AND HALDIMANDNORFOLX SANITARY LANDFILL INC.

Respondents

REASONS FOR JUDGMENT

HOWDEN, J.

Released: Julyfi, 2006

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