Appendix 2: EBR LEAVE TO APPEAL APPLICATIONS – July, 1995 to March, 2001

Appendix 2 - EBR LEAVE TO APPEAL APPLICATIONS

July, 1995 to March, 2001

Parties and Date of
Leave Application
Description of Grounds
for 
Leave to Appeal
Decision on Leave Application Status/Final Outcome, Decision
Date and Comments
Registry #

Applicants: Albert Hunter

Ministry: MOE

Proponent: OSBBC Ltd.

Date of Application:July, 1995

Instrument: C of A

Tribunal: Environmental Appeal Board (EAB)

Leave to appeal application made by the EAB for a decision made by a Director at MOE to issue a certificate of approval (C of A) for the operation of eight air emission points at a wood product plant owned by OSBBC Ltd., a subsidiary of Boise Cascade. The main finding of the EAB was that the Director acted “reasonably” by applying “standard Ministry procedures” in assessing the environmental dangers.

The EAB felt it was not necessary to address the potential for “significant harm to the environment” since the first arm of the test was not cleared.

Leave to appeal denied.

The EAB sees the two parts of the test as separate and distinct.  Therefore, one does not have to move to the second part of the test until the first part is satisfied.

“The applicant bears the onus of showing on a balance of probabilities” that the two branches of the test have been met.

*Note- it may be that even if a ministers decision is patently unreasonable the second arm of the test may still defeat the appeal.

The board took a purposive view of its role under the EBRin this first case..

Registry #: IA5E0647

Applicants: APT (Assuring Protection for Tomorrow’s) Environment

Proponent: Uniroyal Chemical Ltd.

Ministry: MOE

Date of Application:August, 1995

Instrument: C of A

Tribunal: Environmental Appeal Board (EAB)

The applicant sought leave to appeal a decision by MOE to amend a C of A for sewage works granted to Uniroyal Chemical Limited in Elmira. The amendment appealed proposed the additional contaminant and treatment of groundwater from the top beds of an aquifer located on UCLs property. The appeal was based on the grounds that the decision was unreasonable and that the C of A as drafted would result in significant harm to the natural environment. The Appeal Board found that the  change to the certificate was not a Class II instrument under O. Reg. 681/94 of theEBR. Therefore, ATPE was not entitled to bring a leave application as the instrument being appealed was not prescribed under the EBR.

The Board also found that the instrument was not unreasonable in light of the intent by MOE to control the release of contaminants from the Uniroyal site. Furthermore, the EAB decided that the  treatment of some contaminated water at the site would not result in significant harm to the environment.

Leave to appeal denied.
Registry #: IA5E1655

Applicants:Northwatch

Proponent: Harbour Remediation and Transfer Inc.

Ministry: MOE

Date of Application:February, 1996

Instrument: C of A

Tribunal: Environmental Appeal Board (EAB)

This appeal concerned a decision by MOE to issue a C of A for a project involving the shipment of treated sewage sludge. Some of the concerns raised by the applicants were: the project was not given adequate review, biosolids are not an appropriate cover for mine tailings, adverse environmental impacts,  biosolids will not act as an effective oxygen barrier to reduce acid mine drainage, and MOE had not responded in a satisfactory manner to its concerns. The Board did not grant leave to Northwatch on the basis that the decision not to provide an equivalent opportunity to comment was not within the authority of the Director and therefore was not unreasonable. In addition, it was found that the wish of Northwatch to have the approval to HRT deferred and considered jointly with the application to dispose the biosolid wastes at Falconbridge Mines was effectively granted. Leave to appeal denied:April 2, 1996

Reasons issued by the EAB on August 16, 1996.

The EAB found that an unincorporated association was within the meaning of a person found in s.38 of the EBR and allowed Northwatch standing.

Registry #: IA5E2387

Applicants: Wetlands Preservation Group of West Carleton (WPG)

Proponent: Coopers and Lybrand

Ministry: MOE

Date of Application:March, 1996

Instrument: PTTW

Tribunal: Environmental Appeal Board (EAB)

The WPG applied for leave to appeal the renewal of a permit to take water (PTTW) issued by MOE to Coopers and Lybrand. The ground for the appeal was a reasonable risk of serious environmental harm. The applicant alleged that the discharge of pesticides and fertilisers used on the golf course was entering the ecosystem of the Class I Constance Creek wetland through the shallow groundwater and the  drainage system of the golf course. The board found that the PTTW was “not the appropriate instrument to address the concerns” raised by the applicants. The WPG was mainly concerned with the discharge of chemicals.

The Board suggested that the applicants could use other mechanisms under the EBR to address their concerns.

Leave to appeal denied:May 9, 1996

This case is an example of how s. 38 is linked to s. 41. While s. 38 presents a low threshold, it must still be met for the appeal to succeed.

Registry #: IA5E0790

Applicants: Barker, Major, Kiers and Skipper

Proponent: Robert R. Cooke and Son Ltd.

Ministry: MOEE

Date of Application:May, 1996

Instrument: C of A

Tribunal: Environmental Appeal Board (EAB)

Baker et al. applied for leave on a decision by MOEE to issue a C of A. The C of A was to allow the receipt of waste at a waste disposal site in Southwestern Ontario that had been out of operation since 1978. The Applicants were concerned that the decision was unreasonable and could be detrimental to the environment. In granting leave to appeal this decision, the Board concluded that the Director may have acted unreasonably and that the decision to permit the reopening of the site could result in significant harm to the environment.

In this decision, the Board decided to use a lower standard of proof at the leave to appeal stage. The EAB  lowered the test from a “balance of probabilities” to that where the applicant has to show a “prima facie case”. Therefore, one must now show “preliminary merits” or raise a “serious question” to obtain a leave.

Leave to appeal granted:March 24, 1996

This was the first successful third party leave to appeal application.

The parties reached a settlement in November, 1996.

The applicants withdrew their appeal in February, 1997 when the instruments required to carry out the settlement were posted on the Registry.

Registry #: IA6E0241

Applicants: Carruthers, Lovekin and Rohde

Proponent: County of Northumberland

Ministry: MOEE

Date of Application:May, 1996

Instrument: EPA s. 27 – C of A for a waste disposal site

Tribunal: Environmental Appeal Board (EAB)

The Applicants appealed a decision of the MOE to amend the County of  Northumberland’s provisional C of A for its waste processing site. The

amendment was to change the existing three-stream waste operation to a two-stream waste operation. The reasons for seeking leave included: the two-stream waste operation could result in a higher landfill disposal rate and therefore, greater harm to the environment.

The Board found that the Applicants had an interest in the decision, however, they had failed to provide any evidence that the Director’s actions were unreasonable or that significant harm would result from the amendment to the certificate of approval. The two stream waste processing system was found to create less harm to the environment than sending all the Country’s waste to a landfill.

The Board also noted that the County has agreed to incorporate some of the applicant’s suggestions into the operational procedures for the facility.

Leave to appeal denied:August 1, 1996

Reasons issued February 7, 1997.

Registry #: IA6E0344

Applicants: K&E Blackwell Road Landfill (LAC)

Proponent: Philip

Ministry: MOE

Date of Application:July, 1996

Instrument: C of A for a waste disposal site.EPA s. 27

Tribunal: Environmental Appeal Board (EAB)

A member of the Land Advisory Committee for the K&E Blackwell Road Landfill site sought leave to appeal on a MOE decision to allow the company to treat hazardous waste, Electric Arc Furnace Dust (EAF dust) and dispose of it as non-hazardous waste at the K&E Blackwell Road Landfill Site.

Waste materials at the site were not to exceed 20K tonnes while condition 60(2) on the certificate allowed no more than 100K tonnes of processed EAF dust to be disposed.

The grounds for seeking leave included; that there was inadequate information available about the processing of EAF dust; possible ground water contamination; inadequate communication with residential neighbors; the waste represented a higher risk to the residential neighbors; and that the land fill might not be appropriate for such high risk material.

The onus on the applicant (Hunter) to meet the standard of proof is as set out in Barkerfor an application for leave.  There must be a “serious question” raised by the Applicants.

The Director’s decision here was reasonable “having regard to the relevant law and to the government policy” as set in s. 41.(a).   The applicant was given two opportunities to

initiate a review by an outside source but failed to. The Director also took all reasonable measures and  adequately assessed the impact of environmental risks

Having found that the Director had not acted unreasonably, the Board felt there was no need to examine whether there was a risk that the decision could cause serious harm to the environment.

Leave to appeal denied:October 24, 1996
Registry #: IA7E0117

Applicants: Morrison, Eugene/George Knowles

Proponent: Aaroc Aggregates Ltd.

Ministry: MOE

Date of Application:June, 1997

Instrument: C of A for a waste disposal site.EPA s. 27

Tribunal: Environmental Appeal Board (EAB)

Leave was sought on a MOE decision to grant a C of A for a waste disposal site (processing ) to Aaroc Aggregates Ltd. The C of A allows Aaroc to receive a max of 1,500 tonnes of construction and demolition material per day for recycling. The max amount of waste allowed to be stored on the site is 100,000 tonnes.

The applicants put forth 13 reasons they felt the decision was unreasonable and 7 reasons they felt the environment would be impacted significantly including a nuisance argument.

The Environmental Appeal Board denied leave to appeal in this case. The Board found that the applicants succeeded in showing good reason to believe the Director acted unreasonably on one of the ground alleged-inadequate consideration of ground water and surface water issues. However, the Board found that the applicants failed to show that the decision could result in significant harm to the environment (s. 41(b)). Leave to appeal denied:  October 10, 1997.
Registry # IA6E1637

Applicants: Kenneth and Ethel Ricker

Ministry: MOE

Proponent: Dunnville Rock Products Ltd.

Date of Application:June 19, 1997

Instrument: Permit to take water (PTTW), s. 34, OWRA

Tribunal: Environmental Appeal Board (EAB)

The applicants sought leave to appeal the decision of MOE to grant a PTTW to Dunnville Rock Products Ltd. for the purposes of quarry dewatering. The applicants own residential property near the quarry and rely on well water for drinking and domestic uses. The EAB granted the leave to appeal application for two grounds: whether there are changes in the terms and conditions of the PTTW that could improve compliance by the proponent; and whether there should have been an expiry date on the PTTW to take water. Leave to appeal granted:September 3, 1997

Appeal withdrawn on January 24, 2000

The appeal was withdrawn after prolonged negotiations between the parties.

Registry #IA8E0664

Applicants: Regional Municipality of Durham

Ministry: MOE

Proponent: Can-Sort Recycling Ltd

Date of Application:August 26, 1998

Instrument: C of A for a waste disposal site

Tribunal: Environmental Appeal Board (EAB)

The Municipality of Durham launched a leave to appeal application on an amendment to a C of A for a waste disposal site issued to Can-Sort Recycling Ltd. The appeal is based on the following grounds: the decision did not adequately address previous non-compliance by Can-Sort, safety concerns, and concerns regarding the large increase of waste volumes. The Region withdrew its appeal in mid-September 1998. Appeal withdrawn:September 16, 1998.
Registry # IA7E1900

Applicants: Aegean Enterprise

Ministry: MOE

Proponent: Recycle Plus Ltd.

Date of Application:September, 1998

Instrument: C of A for a waste transfer station under s.27 of the EPA.

Tribunal: Environmental Appeal Board (EAB)

The applicants challenged an MOE decision to grant a provisional C of A for a waste transfer station to Recycle Plus Ltd. The Applicants seek leave to appeal on several grounds including: environmental harm has and will continue with the operation of the site, the certificate does not require a system for the proper collection and treatment of lea hate generated by the food waste processed by the company and the Toronto (Etobicoke) Zoning code prohibits the facility. Furthermore, Recycle Plus has been operating without MOE approval contrary to the EPA and an MOE field order. The Board denied the application on the basis that the test for leave to appeal had not been satisfied by the Applicants. The Board found that the Director had exercised his discretion in a reasonable manner in determining that a public hearing was not required under the EPA. Furthermore, the concerns of the applicants had been addressed by the C of A and their comments were considered by the Director.

The Board further noted that the adequacy of the conditions contained within the C of A depends upon whether the instrument holder is complying with the conditions and whether those conditions are being enforced. These are separate issues from whether the conditions themselves are reasonable. The Board noted the need to monitor this facility carefully, especially in regard to the site operation and record keeping requirements.

Leave to appeal denied:November 12, 1999.
Registry #IA8E1042

Applicants: Greta Thompson and Keith Thompson et al.

Ministry: MOE

Proponent: Ridge Landfill Corporation

Date of Application:November 5, 1998

Instrument: Certificate of approval (CofA)s. 27, EPA

Tribunal: EAB

The applicants sought leave to appeal the decision to amend a CofA  extending the time frame for which a waste disposal site is able to accept industrial, commercial and institutional (IC&I) waste from all of Ontario from December 21, 1998 to the date upon which the site reaches approved capacity.  The grounds for seeking leave included: amendment attempts to circumvent the minister’s approval to expand the landfill site under the EAA; permits IC&I waste disposal on lands not zoned for waste disposal uses; and the proponent has a lengthy history of non-compliance with applicable regulatory requirements. The EAB granted the leave to appeal application.  The EAB found that the amendment to the CofA circumvented the minister’s approval  to expand the landfill site under the EAA.  The EAA approval was based on the approved service area in force at that time, which only allowed waste from all of Ontario to be accepted until December 21, 1998.  The EAB found that the MOE Director’s decision to grant the amendment to the CofA was not reasonable.

After the appeal was granted, however, the applicants decided they could no longer justify the cost, time, and effort in pursuing their appeal of this amendment.  Even success on appeal would be short-lived due to the recent developments.

Leave to appeal granted:December 29, 1998

Appeal withdrawn onFebruary 2, 1999

After being granted leave to appeal, the following events occurred: on January 20, 1999, the Ontario Municipal Board decided to dismiss, without a hearing, the appellants’ appeal of the re-zoning by-law for the landfill site; on January 27, 1999, MOE, without a hearing, issued a new C of A to the Ridge Landfill Corporation which permits the disposal of IC&I waste from all of Ontario for the next twenty years; and on January 28, 1999, the EAB lifted the stay of the operation of the certificate of approval that was the subject of the leave to appeal application, after considering Environmental Assessment documentation, enabling Ridge Landfill Corporation to accept industrial, commercial and institutional waste from all of Ontario.

Registry #IA8E1707

Applicant: Soyers Lake Ratepayers Association Inc.

Ministry: MOE

Proponent: Woodlands Ranch

Date of Application:February 3, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicant sought

leave to appeal the decision to grant a PTTW permitting Woodlands Ranch to take up to 4,540 litres of water per minute or 2,724,000 litres per day from Little Soyers Lake for the purpose of irrigation for 25 years.  The grounds for seeking leave included: insufficient notification and consultation by MOE; extinguished flow to Soyers Lake; and reduced irrigation of the Soyers Creek wetlands.

The EAB granted the leave to appeal application.  The EAB found that there was disagreement among the parties about the surface area and water capacity of Little Soyers Lake.  Other assumptions which were the basis for the Director deciding to issue the PTTW also appeared to be flawed or questionable.  The appeal hearing is limited to the subjects of the rate of water taking and the terms of two special conditions, unless all parties agree otherwise, or the EAB determines otherwise. Leave to appeal granted:February 3, 1999

Appeal withdrawn on June 16, 1999.

As a result of a meeting between the Soyers Lake Ratepayers Association, MOE, and Woodlands Ranch, held on June 9, 1999, a set of conditions were drawn up by MOE for the PTTW that essentially addressed all of the concerns raised in the appeal.

Registry #IA8E1232

Applicant: Northwatch

Ministry: MOE

Proponent: Enviro-Med Canada Limited

Date of Application:March 30, 1999

Instrument: CofA, s. 27, EPA

Tribunal: EAB

The applicant sought leave to appeal the CofA permitting the proponent to operate a biomedical waste management facility in North Bay and dispose of residual waste in the North Bay landfill.  The grounds for seeking

leave included: there are conflicts with the MOE strategy stating that biomedical wastes should be managed close to their point of generation; the technology has not undergone sufficient testing and review; and the decision could result in significant environmental harm.

The EAB denied the leave to appeal application on the following grounds: the MOE strategy had not been adopted and was not binding; a condition requires technology testing before the proponent can begin operation; there is a negligible chance that there would be a release to the environment of dioxins and mercury; and wastewater from the facility will be collected, tested and disposed of in an appropriate manner. Leave to appeal denied:May 18, 1999
Registry #IA9E0365

Applicants: Federation of Ontario Naturalists et al.

Ministry: MOE

Proponent: Norampac

Date of Application:May 21, 1999

Instrument: Order for preventative measures, s. 18, EPA

Tribunal: EAB

The applicants sought leave to appeal the decision to issue an Order for preventative measures to Norampac Inc., that requires the company to eliminate the use of Dombind as a dust suppressant over a period of time. The grounds for seeking leave included: the Order doesn’t ensure that the use of Dombind as a dust suppressant will be phased out by the end of the year 2000 or that the terms and conditions regarding the application of Dombind as a dust suppressant on roads will be adequately enforced. The EAB granted the leave to appeal application for one of the stated grounds – whether the requirements and conditions for the application of Dombind as a dust suppressant as set out in the MOE Order provide an adequate means of enforcement.  Leave to appeal on all other grounds was denied. Leave to appeal granted in part: August 27, 1999

Final decision: October 20, 1999

The EAB accepted the minutes of settlement signed by the parties and dated September 23, 1999, and ordered that Appendix I to the Director’s Order be deleted and replaced with the conditions agreed to by the parties.  Any remaining issues raised by the appeal were dismissed.

In the settlement, the parties agreed on the requirements and conditions for the application of Dombind dust suppressant, including the following: Dombind, mixed or blended with wastes, shall not be applied without a C of A; any Dombind containing greater than 5 parts per million of polychlorinated biphenyls (PCBs) shall not be applied as a dust suppressant; Dombind shall not be applied to any point which is within 50 metres of any water or watercourse or within 15 metres of a water well; and Dombind shall not be applied in such a manner that could result in its deposit, either directly or indirectly, into waters frequented by fish.

Registry #IA9E0487

Applicants: Walter Schneider et al.

Ministry: MOE

Proponent: Clublink Capital Corporation

Date of Application:July 13, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicants sought leave to appeal the decision to issue a PTTW allowing a change in the allowable water taking from Hamer Bay of Lake Joseph to increase from 120,000 to 3.4 million litres per day.  The grounds for seeking leave included: there was no condition of approval that ClubLink adhere to its own proposed construction techniques and operation protocols; and the failure to require a monitoring program as a condition of approval of the PTTW. The EAB granted the leave to appeal application on the grounds that the Director failed to impose conditions that would prevent certain water quality impacts that might result from the irrigation of the proposed golf course.  The EAB accepted the applicants’ submission that the Director should apply an ecosystem approach and attempt to prevent pollution in order to protect, preserve and sustain the province’s water resources.  The EAB also found that there is the potential for significant harm to the environment. Appeal was granted: August 31, 1999

Appeal withdrawn:December 13, 1999

The applicants withdrew the appeal after negotiating a settlement with the Ministry of Environment and the Clublink Corporation.  The proponent’s related C of A for sewage works was amended to ensure that the water quality monitoring program encompassed the possible adverse impact from the run-off from the golf course.  Also, a condition was added to the PTTW requiring ClubLink to comply with the water monitoring conditions of the sewage works CofA.

Registry #IA8E1260

Applicants: Madeline Gilbertson et al.

Ministry: MOE

Proponent: Pickerel Lake Cottage Association

Date of Application:July 20, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicants sought leave to appeal the decision to permit the Pickerel Lake Cottage Association to construct a dam designed as a passive water control structure that will regulate water levels using a spillway structure with no active control.  The grounds for seeking leave included: the likelihood that downstream lake levels will be adversely affected; the possibility that the higher lake level will result in the release of mercury and greenhouse gases; and possible adverse effects for downstream fish habitat. The EAB denied the application for leave to appeal because it was not received within the 15-day time period set out under section 40 of theEBR.  The EAB indicated that, had the application been submitted within the required time limit, it would have found that the Applicants did not establish that the Director failed to act in a reasonable manner with regard to the relevant law and to any government policies developed to guide decisions of this kind, nor was there any basis to suggest that the decision could have resulted in significant harm to the environment. Leave to appeal denied:August 20, 1999
Registry # IA8E1600

Applicants: Sylvanus General et al.

Ministry: MOE

Proponent: Canadian Gypsum Company Limited (CGC)

Date of Application:October 15, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicants sought leave to appeal the decision to issue a PTTW to CGC for industrial processing and mine dewatering.  The grounds for seeking leave included: widespread environmental impacts arising from previous PTTWs issued to the CGC; CGC’s non-fulfilment of the conditions precedent for renewing the PTTW; and the PTTW was issued without complying with Part II of theEBR regarding public notice and comment.  The applicants alleged that there were two Registry notices in relation to this PTTW and that they presented inconsistent information and comment periods. The EAB denied the application for leave to appeal on the following grounds: the applicants did not provide sufficient supporting data; granting leave to appeal would only delay the removal of potentially contaminating materials from the West Mine; the effect of the PTTW would be to restore the natural environment, which would be in keeping with the objectives of the EBR; and that the applicants failed to show that the PTTW would have a significant impact upon the present levels of the groundwater aquifer, water levels in the Boston Creek, or the stability of land in the area.  The allegation concerning non-compliance with Part II of theEBR was not dealt with in the EAB’s decision. Leave to appeal denied:December 20, 1999
Registry #IA9E0144

Applicants: Brian Felske et al.

Ministry: MOE

Proponent: Artemesia Waters Ltd.

Date of Application:October 19, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicants sought leave to appeal the decision to issue a PTTW to Artemesia Waters Ltd. for commercial water bottling and distribution.  The grounds for seeking leave included: the OWRA was inconsistent with section 92A of the Constitution Act, 1867; the PTTW may adversely affect downstream riparian owners; there were technical inadequacies in the proponent’s studies; and an ecosystem approach was not taken. The EAB denied the application for leave to appeal on the following grounds: the provinces and the federal government have shared jurisdiction over water and theOWRA is a valid law; the decision cannot be construed as being in conflict with the moratorium announced by the minister; the Director made a reasonable decision with the information available and added two conditions to the PTTW to protect the water supply and the natural environment; and MOE ensured environmental protection.  The EAB noted that the ecosystem approach is still being incorporated into MOE’s decision-making processes and expressed hope that MOE will take note of the importance of its Statement of Environmental Values in evaluating all undertakings that fall under its jurisdiction. Leave to appeal denied:December 17, 1999

On January 13, 2000, the ECO received a letter from one of the applicants requesting a review of perceived errors in the EAB’s decision.  On January 28, 2000, the EAB issued supplementary reasons clarifying, but not changing, its decision.

See related sections 4.1 and 7 in the main report.

Registry #IA9E0375

Applicant: Alex Kolodziejski

Ministry: MOE

Proponent: Mansfield Ski Club Inc.

Date of Application:December 28, 1999

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicant sought leave to appeal the decision to issue a PTTW to Mansfield Ski Club Inc.  The grounds for seeking leave included: the impact of the increased water taking on previous existing adjacent agricultural land use and subsequent financial losses; the ecosystem principle was not taken into account; and water interference for other users. The EAB granted the leave to appeal application on the ground that there exists a potential for significant harm to the environment, in particular the Pine River, due to the runoff which is affecting the quality and quantity of the water in the Pine River.

After a hearing in March, the Board denied the appeal. The Board noted that the appeal highlighted issues of drainage from the exposed ski hills, as well as the possible vulnerability of the Pine River in the runoff area from the Mansfield Ski Club.  The Board found, however, that the appellant had not demonstrated with any solid information that the melted snow runoff had been detrimental to the quality of water in the Pine River, either intrinsically or as a habitat for a coldwater fishery.  The Board also found that new storm drainage measures, initiated in 1998, showed every promise of providing effective control of flooding and sedimentation of the Pine River.

Leave to appeal granted:February 14, 2000

Appeal denied: April 5, 2000

Reasons were issued by the Board on April 28, 2000.

Registry #IA9E1088

Applicant: Carmen D’Angelo, Community Liaison Committee for the Taro East Landfill

Ministry: MOE

Proponent: Philip Enterprises Inc.

Date of Application:February 8, 2000

Instrument: CofA, s. 27, EPA

Tribunal: EAB

The applicant sought leave to appeal the decision to amend the CofA for the proponent’s waste transfer and processing site.  The grounds for seeking leave included the following: the more stringent restrictions on waste stabilization and disposal announced by MOE should be imposed on this CofA; the CofA should be withdrawn until the independent expert panel that is to be established has investigated the Ecosafe process for stabilizing hazardous waste; and the CofA should be withdrawn pending a decision on a proposed regulation that will affect the Ecosafe process. The EAB denied the application for leave to appeal on the following grounds: the applicant failed to provide any valid evidence that no reasonable person could have made the decision, and that the decision could cause significant harm to the environment; and the applicant provided no evidence that the Director’s actions in issuing the CofA were contrary to his responsibilities under the EPAor the EBR.  Also, the applicant did not abide by the EAB’s Rules of Practice and Procedure. Leave to appeal denied:March 8, 2000
Registry #IA9E1353

Applicant: The Concerned Citizens of Haldimand, Incorporated

Ministry: MOE

Proponent: 1340152 Ontario Inc.

Date of Application:February 24, 2000

Instrument: PTTW, s. 34, OWRA

Tribunal: EAB

The applicant sought leave to appeal the decision to issue a PTTW to the proponent for commercial water bottling.  The grounds for seeking leave included: this community is experiencing water shortages; MOE does not have sufficient data on environmental impacts in the community and is relying on the proponent’s data; MOE is unable to ensure ecosystem integrity; and MOE has failed to ensure riparian rights to land owners affected. The EAB denied the application for leave to appeal on the following grounds: the Director showed that the proposed well is not located in the Oak Ridges Moraine Aquifer, and that the area of water taking is not drained by Cold Creek and the associated provincially significant wetlands; and the surface waters are not affected and the safeguard provisions of the 1 year permit ensure continuity of water supply.

The Registry notice of the C of A was misleading because it referred to 2 wells taking water for 10 years, as the applicant had requested.  However, the actual CofA issued was for 1 well taking water for 1 year.  The EAB noted that the applicant may have been misled by “the ambiguity of the EBR Registry listing – the regrettable and inexcusable lack of transparency….”

Leave to appeal denied:April 10, 2000
Registry #IA00E0311

Applicant: Garofalo Brothers Construction Ltd.

Ministry: MOE

Proponent: 901612 Ontario Ltd. o/a Pat Rogers Towing

Date Application received by ECO:May 9, 2000

Instrument: Certificate of Approval (C of A)  (Air), s. 9, EPA

Tribunal: Environmental Review Tribunal (ERT)

The applicant sought leave to appeal the decision to grant a C of A permitting 901612 Ontario Limited o/a Pat Rogers Towing to operate a mobile metal shearing machine and a crusher in conjunction with the recycling of motor vehicles. The grounds for seeking leave to appeal included: the noise level created by the operations of the proponent would result in significant environmental harm to the applicant, who owns residentially zoned land immediately adjacent to the westerly boundary of the proponent’s property; the applicant is also proposing to redevelop its lands to the south of the proponent’s property as a subdivision. Leave application withdrawn.

The applicant was involved in an Ontario Municipal Board Hearing which was related to the issuance of a certificate of approval to 901612 Ontario Limited.  The Ontario Municipal Board matter was settled and as part of the settlement the applicant agreed to withdraw its application for leave to appeal.

Leave application withdrawn: May 29, 2000
Registry #IA9E1791

Applicants: Mr. and Mrs. Anthony Maddaloni

Ministry: MOE

Proponent: Photech Environmental Solutions Inc.  Date Application received by ECO: June 30, 2000

Instrument: C of A (Waste Disposal Site), s. 27, EPA

Tribunal: ERT

The applicants sought leave to appeal the decision to issue a C of A to Photech Environmental Solutions Inc. to operate a waste disposal site for the processing of industrial hazardous and non-hazardous waste. The grounds for seeking leave to appeal included: use of land does not conform to zoning by-law; failure of proponent to comply with a previous C of A; slow emergency response times for residential properties located near the subject site. The ERT denied the leave to appeal application on the following grounds: it is the municipality’s responsibility to ensure that its zoning by-law requirements are met by Photech, not the Director’s; there is no evidence to substantiate the possibility that significant environmental harm may result from the issuance of the C of A to Photech; there was no risk associated with the response time of the fire department; the terms of the C of A indicate a rigorous regime of regulation. Leave to appeal denied:August 10th, 2000
Registry # IA00E0427

Applicants: Carol S. Dillon and Melvyn E.J. Dillon; The Council of Canadians; Ken McRae;

Michael Cassidy and Maureen Cassidy; Eileen Naboznak; Barbara Zents and Ray Zents; Anne German;

Kathleen Corrigan

Ministry: MOE

Proponent: OMYA (Canada) Inc.

Date Application received by ECO:September 6, 2000

Instrument: Permit to Take Water (PTTW), s. 34, OWRA Tribunal: ERT

The applicants sought leave to appeal the decision to issue a PTTW allowing a change in the allowable water taking from the Tay River to increase to 4,500 m3/day by the year 2009.The grounds for seeking leave included: the Director failed to protect the quality of the natural environment, and foster the efficient use and conservation of resources, by granting permission to take more water than the proponent requested; the Director based his decision on insufficient data; lack of independence in the important functions of study, recording, and monitoring; the Director failed to follow the Ministry of the Environment’s Statement of Environmental Values. The ERT granted the leave to appeal application on the grounds that it was not reasonable for the Director to issue a PTTW for the taking of water in the absence of sufficient, pertinent data on the Tay River watershed. The ERT found that the absence of this information creates a degree of uncertainty about impacts on the aquatic habitat of the Tay River which raises the possibility of significant harm to the environment. Appeal still pending.

Leave to appeal granted:November 6, 2000

Registry # n/a (although required by s. 22 of the EBR, the MOE failed to post this Class III instrument on the Registry)

Applicants:William M. Oates and Tucker Creek Limited (TLC)

Ministry: MOE

Proponent: Imperial Oil

Date Application received by ECO:November 15, 2000

Instrument: C of A, s.53, OWRA

Tribunal: ERT

The applicants sought leave to appeal the decision to issue a C of A to Imperial Oil for a sewage works for treatment and disposal of 150,000 litres per day of wastewater. The applicants own property adjacent to that of Imperial Oil and are concerned over the lack of limits to the volume of discharge of specific contaminants into the ground, and the possibility of effluent ponding on TLC property. The ERT denied the leave to appeal application on the grounds that the application was filed outside its jurisdiction. The instrument which is the subject of this application is a Class III instrument under theEBR. Therefore, it is not an instrument for which leave to appeal may be sought under s. 38 of the EBR. Leave to appeal denied:January 19, 2001
Registry IA00E1460

Applicants: Colin Heard and Peter Jordan

Ministry: MOE

Proponent: Cavanagh Construction Ltd.

Date Application received by ECO:January 24, 2001

Instrument: OWRA s. 34 – PTTW

Tribunal: ERT

The applicants sought leave to appeal the PTTW on the grounds that the Director did not give due regard to the potential impacts of the water-taking off-site in accordance with the ecosystem approach. Moreover, the Director failed to take into account the inadequacies of the Proponent’s hydrogeological study. All in all, the information available to the Director was inaccurate, incomplete, and inadequate. The Tribunal denied the leave to appeal application because the Director demonstrated through expert engineering evidence that a water supply aquifer does not exist above the bottom of the quarry. The concern with regard to the wuality of the water discharged were met by evidence of low phosphorous levels and nitrate levels below limits. In addition, the PTTW requires monitoring of the discharge levels. Leave to appeal denied:March 1, 2001
Registry IA00E1113

Applicants: Robert Burton

Ministry: MOE

Proponent: Sithe Energies Canadian Development Ltd.

Date Application received by ECO:February 8, 2001

Instrument: s. 9 - EPAApproval for discharge into the natural environment other than water (i.e. air)

Tribunal: ERT

The applicants appealed the approval of the permit on the basis that the general level of air pollution in the Metro Toronto area would be increased by approximately 1% if the proponent’s generating stations are licensed. There is no demonstration of need for the plant in the Proponent’s application or in the approval. Finally, the Proponent is an American company, which is required to restrict emissions on similar generating stations that it operates in American jurisdictions to levels of at least half of those permitted in the approval. The Tribunal held that the Director’s decision was reasonable having regard to the relevant law and policies of the government of Ontario and denied the leave to appeal application. They stated that there is no requirement in Ontario legislation to demonstrate the need for the facility. The Environmental Assessment Act has been amended to exclude the requirement that need be demonstrated. Furthermore, evidence submitted to the tribunal was that the emissions were well below the limits allowed under current Ontario legislation and regulations and the regulations of other jurisdictions are not relevant. Leave to appeal denied:March 9, 2001
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