In Ontario, no person is allowed to establish, operate or expand a waste disposal site (i.e. landfill) unless an Environmental Compliance Approval has been issued under the Environmental Protection Act (EPA).
This general prohibition has been in place for decades, but it has been occasionally strengthened by the Ontario Legislature through amendments to the EPA that prohibit landfills in particularly sensitive areas.
In 1994, for example, the Legislature amended the EPA to prohibit new or expanded landfills within the Niagara Escarpment Plan Area. This amendment was supported by CELA and other stakeholders who were concerned about the adverse impacts of landfilling upon the internationally significant Niagara Escarpment biosphere.
Similarly, in response to public outcry about the ill-fated Adams Mine Landfill proposal, the Ontario Legislature enacted further statutory changes in 2004 which prohibited landfilling in natural or artificial lakes greater than 1 hectare. This EPA amendment was also supported by CELA, which had represented clients opposed to the Adams Mine Landfill proposal.
But in 2013, despite well-founded public concerns about the risks of landfilling at fractured bedrock sites, the Ontario Government has apparently decided not to change the EPA at all.
In July 2013, CELA, the Mohawks of the Bay of Quinte, and the Concerned Citizens’ Committee/Tyendinaga & Environs jointly submitted an Application for Review of section 27 of the EPA. Filed under the Environmental Bill of Rights(EBR), this Application concluded that it was in the public interest to review and revise the EPA in order to:
- prohibit new or expanded landfill sites in fractured bedrock and other hydrogeologically unsuitable locations; and
- prohibit proponents from re-applying for EPA approvals in relation to sites which had already been refused for hydrogeological reasons.
The EBR Application described the compelling environmental reasons why landfilling should no longer be permitted on fractured bedrock sites. In essence, groundwater flow systems at such locations are complex and difficult to predict, and it may be virtually impossible to effectively monitor, contain or clean up leachate contaminants which escape into vertical or horizontal fractures, folds or faults (especially if karstic). The EBR application also included examples of other Canadian and American jurisdictions which have established siting standards which prohibit landfills at fractured bedrock locations.
After it was filed with the Environmental Commissioner of Ontario, the EBR Application for Review was endorsed by a number of other individuals and groups across the province.
In October 2013, however, Ontario’s Ministry of the Environment (MOE) announced that it would not undertake the requested review of the EPA. In a sparse letter to CELA and the other two EBR applicants, the MOE opined that since the existing approvals process already enabled Ministry staff to assess site suitability, “a prohibition on landfill siting in statute is not required.” Aside from this brief commentary defending the status quo, the MOE refusal letter was essentially unresponsive to the legal and technical issues described in the EBR Application.
Nevertheless, the MOE letter indicated that the Ministry would review its guidance materials, such as landfill-related policies and guidelines, to see if changes are warranted. This offer is unacceptable to CELA for two main reasons:
- since the guidance materials are, by definition, non-binding and generally unenforceable in law, merely reviewing or revising them does not address the current gap in section 27 of the EPA; and
- since the guidance materials already caution against landfilling at hydrogeologically unsuitable locations, it is now time to incorporate this common sense policy into the EPA itself.
CELA and other stakeholders will continue to pursue these long-overdue changes to the EPA in order to establish clear legislative rules on which types of sites are off-limits to landfilling for hydrogeological reasons. Further developments in this law reform campaign will be described in future CELA blogs.