In Concerned Citizens Committee of Tyendinaga and
Environs v. Director, Ministry of the Environment,
neighbours have obtained leave to appeal a Ministry approved
closure plan for the notorious Richmond landfill. The strongly
worded decision of the Environmental Review Tribunal requires the
Ministry of the Environment, whenever there is scientific
uncertainty, to consider a potentially polluting activity
to be "as hazardous as it could possibly be, and to
place the onus of establishing the absence of environmental harm
upon the source of the risk.."
This approach may be in justified in the Richmond Landfill case,
but it risks making environmental innovation even harder in Ontario
The Richmond landfill was built on thin overburden over
fractured bedrock in Greater Napanee. Local residents depend on
groundwater for drinking, and the aquifers are "especially
vulnerable to contamination". The landfill was opened in the
1950s and steadily expanded. By 1988, it was licensed to receive
residential, industrial, commercial, institutional, construction
and demolition waste from anywhere in Ontario.
In 2006, the MOE turned down an application for a further
expansion, on the grounds that "[t]he entire region has been
identified as being underlain by fractured limestone bedrock with
minimal soil protection and having aquifers that are highly
vulnerable to contamination," and "[i]t is reasonable to
assume that [the unlined] cell is a potential source of groundwater
contamination." But the existing landfill kept operating.
The Environmental Commissioner called for its
immediate closure in his 2008-09 Annual Report: "the continued
operation of the site poses an unjustified risk to the environment
... The geology of the site is inherently unsuitable for waste
disposal... Contamination of the groundwater appears to be
inevitable.... The ECO is concerned that even a robust monitoring
program will not reliably detect groundwater contamination and will
not provide sufficient lead time to implement protective
The MOE did eventually order the landfill to stop accepting new
waste after June 30, 2011 , but the existing 60 years'
worth of waste will still pose a contamination threat for a long
time. The current appeal concerns the terms of the closure and
monitoring plan for the closed landfill.
According to the residents, the closure plan approved by the MOE
did not do enough to protect their water supply. They sought leave
to appeal seven of the conditions in the ECA: Condition 8.5
(Monitoring Programs); Condition 9.1 (Groundwater and Surface Water
Impact Contingency Plan); Condition 9.2 (Leachate Collection System
Contingency Plan); Condition 9.5 (Public Notification Plan for
Contingency Plans); and Conditions 14.1, 14.2 and 14.3 (Monitoring
Reporting and Annual Reporting).
The Ministry argued that the ECA is intended to provide
monitoring on an interim basis, rather than constituting a final
approval for the landfill's closure plan, and therefore that
this application for Leave to Appeal is premature.
"Essentially, the Director states that given the state of
uncertainty surrounding the landfill, the appropriate approach at
the present time is to further monitor and investigate the site.
The Environmental Review Tribunal entirely rejected this
approach: "Where evidence indicates that the landfill may be
causing contamination, a precautionary approach requires that the
harm be presumed to be occurring unless and until there is concrete
evidence that it is not. In situations where scientific uncertainty
exists as to whether an activity is having an adverse effect, the
precautionary principle requires that it should be considered to be
as hazardous as it could be. "
"The issuance of an ECA with particular terms and
conditions is not necessarily a reasonable decision simply because
the ECA is as good or better than the approvals that applied to the
site previously... In the face of scientific uncertainty,
the application of the precautionary approach calls upon
the Director to consider the landfill to be as hazardous as it
could possibly be, and to place the onus of establishing
the absence of environmental harm upon the source of the
Could the closure plan pose an environmental risk? The MOE said
they had improved environmental protections at the landfill.
According to the ERT, that's not enough if they could and
should have done more:
"The issuance of an ECA could be said to pose a risk of
environmental harm if relevant laws and policies require, prescribe
or suggest more stringent conditions or more urgent preventative or
remedial action than the ECA provides."
The ERT therefore granted the neighbours leave to appeal all the
disputed conditions of the Environmental Compliance Approval, and
good reason to believe that their appeal will be warmly
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