Canada: Strong Opposition To Sewage Processing Facility Foiled By Filing Error

Last Updated: January 9 2013
Article by Dianne Saxe

Lystek's controversial sewage sludge processing facility in Southgate, Ontario, will not face an appeal of its Environmental Compliance Approvals, because opponents, after fighting the facility for so long, made a critical error in seeking leave to appeal. See Green v. Ontario.Under the Environmental Bill of Rights, leave to appeal applications must be filed, within 15 days, with the Environmental Review Tribunal as well as with the Environmental Commissioner, the Ministry of the Environment and the approval holder. In this case, the First Nations and other opponents only filed their applications on time with the Environmental Commissioner. As a result, the Tribunal ruled that it did not have jurisdiction to consider their application.

Thus, the Environmental Compliance Approvals are in effect and will not receive further review:

[1] ECA No. 8850-8V6S7Z approved a waste disposal site for sewage biosolids, untreated septage, processed organic waste and liquid waste from food processing and preparation operations.

[2] ECA No. 2478-8W4L3W approved an organic materials recovery facility, consisting of underground storage tanks, outdoor lined and covered storage lagoons, reagent tanks, process reactors, ancillary structures such as weigh scales and a biofilter used to control emissions from the facility.

Both facilities are located in the Village of Dundalk in the Township of Southgate, County of Grey.

The opponents argued that:

  • The ECAs could cause serious and irreversible harm to plant and animal life, and to the natural and environmentally sensitive local area and broader region by disturbing agricultural land, and by disturbing and harming wetlands, other environmentally protected and sensitive lands, waterways and airways, and by disturbing and destroying wildlife, their habits and their habitats;
  • The MOE's decision to grant approval for more waste processing than what the proponent applied for without a full environmental assessment is unreasonable;
  • The project is located too close to Dundalk residential and school areas and could cause immeasurable discomfort and serious long term health problems to residents who would be subject to increased and unavoidable truck traffic, noise, odours and emissions;
  • The MOE's decision does not mention or acknowledge the developers' option to purchase additional adjacent lands;
  • The MOE's decision does not take into account cumulative impacts that could be caused by future developments in the industrial park; and
  • A financial assurance of $490,886.96 does not seem sufficient to remove the maximum amounts of material permitted at the site.
  • The ECAs will cause serious harm to human health;
  • The ECAs will harm and destroy plants and trees of medicinal value to the Onkwehonwe people;
  • The ECAs were issued without an archaeological and environmental assessment;
  • There has been insufficient and incomplete consultation and accommodation;
  • The Haldimand Treaty cannot be abrogated without the consent of the Mohawk Nation and the Six Nations (Iroquois) Confederacy;
  • The ECAs will have a negative impact on the Onkwehonwe people's hunting and fishing rights in the project area and greater region of the Grand River; and
  • No notice of the postings was supplied to Six Nations and commenting on the instruments on the Environmental Registry was not an option known to them.

This is not the first time that would be appellants have been deprived of their chance to seek to leave to appeal because of a filing error, which came from misunderstanding the Commissioner's website. The ERT concluded:

"[59] It is unfortunate that the Applicants made one critical mistake that goes straight to the viability of the applications themselves. For the reasons set out in this decision, the Tribunal finds that its only available option is to dismiss the applications. Nevertheless, as this case shares many similarities with other recent cases where leave to appeal applications have been dismissed for lack of jurisdiction, the Tribunal makes the following observations.

[60] The limitation period in the EBR is unforgiving. It is short, inflexible and has no equitable exception. This is in contrast to other statutory provisions, such as s. 129(2)(b) of the Safe Drinking Water Act, 2002. Now that there has been nearly 20 years of experience with the EBR, and taking into account the number of times prospective applicants have run afoul the limitation period, it may be worthwhile for an analysis of the remaining barriers to the effective use of the EBR rights to be undertaken and acted upon.

[61] This is not the first time that an applicant has made a compelling case for equitable relief in the face of the existing EBR limitation period. However, this access to justice issue is for the Legislature, not the Tribunal, to address.

[62] Regarding the issues raised in the leave applications in this case, the Tribunal urges the Director and Approval Holder to engage in constructive discussions with the Applicants in an effort to address their concerns. "

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
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