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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 than before.

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 measures.”

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 risk.”

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 received.

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