Blog posted by Isobel Mason, CELA Communications Intern
While the amount of environmental anxiety and public health concerns seem to grow daily in Ontario, the idea that we will soon be swimming in our own garbage due to alleged landfill shortages should not be one of them.
Bill 197 (COVID-19 Economic Recovery Act, 2020) made a number of significant changes to the Environmental Assessment Act (EAA). One key change is that proponents of new, large landfills must obtain written support (in the form of a council resolution) from the host municipality, as well as neighbouring municipalities with residential areas within 3.5 kilometres of the proposed site.
At present, the Ontario government is proposing that certain “waste management projects” – landfills greater than 100,000 cubic metres of disposal capacity, hazardous waste sites, and some types of thermal treatment sites ¬– should be subject to Comprehensive EAs under Part II.3 of the EAA. However, only landfills appear to be subject to the municipal support requirement created under Bill 197. The environmental rationale for this differing treatment is unclear, especially since other types of waste disposal projects (i.e. incinerators) may also cause adverse impacts within the host municipalities and to neighbouring communities.
Public and political discussions have dragged on for decades on whether approved landfill capacity is running out in Ontario, and this topic has been re-ignited over Bill 197’s introduction of the municipal approval requirement. However, it must be recalled that landfills are intrinsically linked to numerous off-site problems.
Potential impacts from large landfills include potential groundwater/surface water contamination, emission of greenhouse gases, impairment of local air quality, vermin infestation, noise, dust, blowing litter, and processions of loud, heavy trucks causing accelerated road deterioration. These and other direct effects on local communities make it imperative to strengthen the role of municipal views on new landfill proposals.
However, seemingly lost in the recent conversation about landfill capacity shortages is the fact that the Ontario government retains considerable discretion on whether to require municipal consent on a case-by-case basis. For example, in the Environmental Registry bulletin regarding the Bill 197 changes to the EAA, the Environment Ministry confirmed that this requirement may be waived if there are “severe landfill constraints” or “public health concerns.”
In light of this wide-ranging governmental discretion, CELA concludes that the proponent-driven criticism of the new municipal consent requirement is overstated and unmeritorious.
In addition, it is not clear whether First Nation communities will enjoy a substantially similar right under the EAA to consent to (or oppose) new landfills, as municipalities are now entitled to do under Bill 197. For example, the Attawapiskat First Nation is currently challenging a proposal for a private 100,000 cubic metre landfill near its community which could cause future environmental and public health impacts. In this context, recall that the 2019 report by the United Nations Special Rapporteur noted, “Indigenous peoples are disproportionately located in close proximity to actual and potential sources of toxic exposure,” such as landfills, incinerators, refineries, and other waste and manufacturing facilities. In CELA’s view, this case in Attawapiskat clearly demonstrates the importance of ensuring that First Nation voices are included in landfill siting proposals, and that First Nation communities hold the same rights as municipalities throughout Ontario to withhold consent for risky landfill projects.
While the Ontario Waste Management Association released an estimate that the province will reach landfill capacity by 2032, the numbers appear to ignore or downplay the possibility of significant improvements over the next decade in extended producer responsibility, waste diversion, landfill bans, and other recently announced initiatives under Ontario’s Resource Recovery and Circular Economy Act.
Richard Lindgren, CELA counsel, has been involved in waste disposal cases across the province for over three decades. Having heard many alarmist warnings from proponents about looming landfill shortages, Lindgren says that if such claims are actually true, then “the best thing we should be doing is hoarding or safeguarding capacity, and not allowing it to fill up with things that shouldn’t be there,” such as “pop cans, bottles, newsprint, cardboard” and other valuable resources that should not be buried in landfills or burned in incinerators.
While the Ontario government has occasionally mentioned possible landfill bans, there appears to be little or no tangible progress being made on this front. Lindgren noted the need for “good, aggressive landfill bans” to make a strong impact on reducing solid waste volumes and preserving current landfill capacity on a go-forward basis.
Another key factor is how the current government plans to overhaul Ontario’s blue box program in order to shift greater financial responsibilities and other obligations upon the producers of the products and packaging collected in the program. However, the low diversion targets and the slow pace of implementation proposed by the government may render the initiative less effective unless substantial improvements are made as soon as possible.
“It’s time to really get serious and move forward,” said Lindgren, noting the general provincial failure to move much beyond the same waste management debates that have occurred in Ontario since the 1980s.
Requiring municipal consent could conceivably make it slower or more difficult for proponents to obtain approval for new or expanded landfills, but that new constraint may, in fact, kick-start long overdue action on waste reduction, Lindgren noted.
“Instead of focusing on where we put it, and where we bury it, we should be focusing on how we stop generating so much waste in the first place.”