ERT overturns OMAFRA decision, approves NASM Plan for sewage biosolids

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:

The use of Non-Agricultural Source Materials (“NASMs”) in Ontario agriculture is on the rise.  NASMs are materials capable of being applied as a nutrient to farmland that do not come from agricultural sources.  Examples include leaf and yard waste, fruit and vegetable peels, food processing waste, pulp and paper biosolids, and sewage biosolids.  The last example, sewage containing human waste, is controversial.  Application of sewage biosolids to farm fields has raised concerns from nearby residents about odour and the risk of transmission of bacteria and viruses.

Ontario began to regulate land application and storage of NASMs under the Nutrient Management Act, 2002 beginning in 2011.  Anyone who wants to land apply or store sewage biosolids must have an NASM Plan prepared by an OMAFRA-certified plan developer.  The Plan must give effect to the following purposes: 1) “the optimization of the relationship between the land-based application of nutrients, farm management techniques and crop requirements”; and, 2) “the minimization of adverse environmental impact”.  The Plan must contain a contingency plan, including proposals for dealing with unanticipated releases of nutrients from storage or during transport or application and with the inability to store, apply or otherwise use materials or nutrients as a result of weather conditions or unavailability of equipment.

Most NASM Plans must be approved by OMAFRA.  Where approval is not granted, the applicant may appeal OMAFRA’s decision to the Environmental Review Tribunal (“ERT”).  In a recent decision, the ERT overturned a denial by OMAFRA of approval for an NASM Plan that included a new storage lagoon that would receive materials from various sources including washwater from confectionary, digestate mixed with pet food, digestate of grape skins, pomace and winery waste, washwater from winery, washwater from dairy processing facility and liquid anaerobically digested sewage biosolids.  OMAFRA’s Director had refused to approve the Plan on the basis that the proposed lagoon, to be owned and controlled by a non-agricultural operator, was not an “agricultural operation” subject to the Nutrient Management Act, 2002.

The application under review was submitted jointly by two parties – a cash crop farming business and a waste management business.  The two businesses already worked together under the farming business’ existing approved NASM Plans; the waste management business was contracted to implement the plans, including procuring and land applying NASMs.  Now the two applicants proposed to revoke the existing plans and consolidate them into a single NASM Plan, at the same time adding a new storage facility.  That facility – an earthen lagoon – would be located on the property of the waste management business and would be under the sole control of the waste management business.  OMAFRA’s Director determined that the lagoon could not, on that basis, be considered an “agricultural operation”.  The lagoon would require approval from the Ministry of the Environment as a non-agricultural waste facility.

On appeal, the ERT found that the Director was wrong to conclude that a waste management business could not be involved in an agricultural operation.  That is, the proper consideration was of the operation and not the operator.  The ERT found that the relevant regulation under the Nutrient Management Act, 2002 directed the OMAFRA Director to consider the “the comprehensive operation that is proposed”, not the “business activities of one of the operators”.  While the proposed storage lagoon on its own would not be an agricultural operation, the ERT found that the lagoon would form part of an agricultural operation consisting of “six farms operating as a Farm Unit, with the inclusion of a storage lagoon for the storage of NASM dedicated to those six farms that form the Farm Unit.”  Further, the ERT did not agree that the Director’s concerns about potential future use of the lagoon for other (possibly non-agricultural) purposes were relevant; the Director was tasked with considering the specific NASM Plan application before him.

The ERT also did not agree that the blending or agitation of separate types of NASMs as part of the proposed storage lagoon management process constituted an “intermediate operation”, which is by definition a non-agricultural operation.  The Director considered the waste management business to be a “broker” who simply receives materials from one source, does not generate a new nutrient product from the materials, and then transfers the material to another operation.  The ERT accepted the position of the applicants that storage and agitation of the NASMs is not “blending” for purposes of the definition of an “intermediate operation”.  If that were the case, then virtually all NASM storage facilities would be categorized as an intermediate operation and excluded from NASM regulation.  No NASM storage facility could receive material from more than one source, and multiple materials could not be mixed before application to a field.

Finally, the ERT did not accept the OMAFRA Director’s opinion that the proposed NASM storage lagoon was properly regulated as a “waste management system” under the Environmental Protection Act (“EPA”), requiring (as noted above) an Environmental Compliance Approval from the Ministry of the Environment.  In argument, OMAFRA cautioned the ERT that “the more expansive the definition of agricultural operation, then the more likely that the EPA can be avoided”.  In this specific case, however, the ERT was not concerned that a non-agricultural use was being approved as an agricultural one – the storage lagoon and the six farms would be operated as one entity.

Read the ERT decision at:  2020 CanLII 48637.

Timelines to appeal Ontario environmental orders are strict - miss the deadlines at your peril

Another decision of the Environmental Review Tribunal ("ERT") has confirmed that the process and deadlines for appealing orders made by Provincial Officers are strict; failure to comply with the process and deadlines means that the ERT has no jurisdiction to hear an appeal.

In a July, 2015 decision, the ERT dismissed a proposed appeal on the basis that the proceeding related to matters outside the jurisdiction of the ERT (Rule 119).  A Provincial Officer with the Minister of the Environment and Climate Change ("MOECC") had issued an Environmental Protection Act ("EPA") order on May 13, 2015 against the appellant.  On June 3, 2015, the appellant wrote to the ERT to appeal the order.

Under the EPA, a person may seek the review of a Provincial Officer's order to be conducted by the MOECC Director (one step above the Provincial Officer); the request must be made within seven days of the order.  It is only the decision of the Director on the review that can then be appealed if necessary to the ERT.  In the case commenced before the ERT in June, no written request directly to the Director for a Director's review had been made.  There was evidence that the appellant had made an oral request for the review to the Provincial Officer and that the appellant's lawyer had then written to the Provincial Officer to request an "indulgence with respect to the timelines in the Provincial Officer's Order."

Before the ERT, the appellant argued that it had effectively requested a Director's review of the Provincial Officer's Order (through the oral request followed by the written request for an indulgence, although both requests were made to the Provincial Officer).  Alternatively, the appellant argued that the information sheet on the review process provided by the Provincial Officer was vague and misleading and led to an assumption that, if a review was not requested within seven days, the Provincial Officer's Order would be deemed to be confirmed by the Director.  Under the EPA, if a request for a review is made and no decision is issued by the Director within seven days, the Director is deemed to have confirmed the Provincial Officer's Order (and that deemed decision can be appealed to the ERT). 

An appeal to the ERT from the Director's order or decision (deemed or otherwise) must be commenced within 15 days of the date on which the appellant was served with the Director's Order (or the date on which it was deemed to have been made).  There is provision for the ERT to extend the time for appealing, but only where, "in the Tribunal's opinion, it is just to do so because service of the order or decision on the person did not give the person notice of the order or decision."  

Where there was no Director's decision at all, there is no jurisdiction for the ERT to hear an appeal whether it was filed on time or not.  In the recent case, the ERT ruled that the written request for an indulgence cannot be considered a written confirmation of the oral request for a review that was made by the appellant to the Provincial Officer.  The EPA allows for an oral request followed-up by a written confirmation, but the written confirmation must be sent to the Director.  Further, the written follow-up in this case did not include other information required by the EPA (e.g. details of the order to be reviewed).  The ERT concluded that there was no deemed confirmation of the Provincial Officer's Order by the Director and, therefore, there was no Director's order or decision that could be appealed to the ERT.

This decision, like many before it, confirms that the environmental legislation in Ontario (the EPA and the Ontario Water Resources Act) provides very narrow windows of opportunity to appeal orders made by Provincial Officers.  If an order is issued to you and you wish to dispute it, do not delay in seeking legal advice and requesting a review in the manner required by the legislation.  Miss the deadlines and you lose your right to appeal.

Read the decision at: COX FARMS LTD. V. ONTARIO (MOECC).

Do Wind Energy Projects harm the soil? Do pipelines?

On an appeal of a Renewable Energy Approval (REA) for a 49-turbine wind farm, the Environmental Review Tribunal (ERT) considered whether the project would cause harm to soils.  The appellants in the case raised issues including harm to farm animals due to electro-magnetic fields and harm to farming practices.  Lay evidence and expert evidence was called on the issue of harm to soils, including evidence relating to the effect of pipeline projects on farm land and production.

The appellants argued that the soils to be affected by the installation of the wind turbines were unique soils particularly suited to potato farming.  Those soils would be permanently affected by the project, which would result in serious and irreversible harm to land (while other poorer lands were available to accommodate the project). 

The project proponent argued the opposite, putting forward evidence that the soils in question were not the only soils in Ontario well-suited to potato production and that soil restoration would be possible following the project.  The proponent's expert witness, Dr. Gregory Wall, suggested that the soil modification required for a wind turbine is not as drastic as for a pipeline, and testified that farmers, and pipeline companies, have been successfully remediating compacted soil for many years.  He said that on a recent pipeline project, he "expects these lands to return to original crop production levels within ten years," and says, "it is my understanding that landowners affected by pipeline construction are often compensated on this basis."  Dr. Wall also testified that with "major changes" in mitigation techniques, lands affected by pipeline projects are now experiencing "full yields" approximately two-years post-construction.

While Dr. Wall was qualified by the ERT as an expert in "soil science"; it's not clear that he was qualified to provide any opinion on compensation for crop loss (and whether that compensation is adequate).  One might also question the large discrepancy in his evidence about the time it takes to return farm land to full production following a pipeline project. 

The ERT found the amount of land to be affected by the proposed wind project to be relatively small in size, so that a relatively small amount of soil would be disturbed.  The ERT then found that the "amount of soil to be disturbed in order to construct and operate the Project is consistent with the scale of disturbance for roads, farm buildings and other facilities required in the normal use of agricultural lands."  However, the ERT noted that in a different project, it could be that a relatively small disturbance could be considered serious.

The ERT also accepted that the mitigation measures, if applied as described by expert witnesses for the parties responding to the appeals, will be successful in restoring the soils to productive agricultural use and are appropriate to the scale of soil disturbance that will result from the project.  Therefore, the appellants failed to establish that the project would cause serious and irreversible harm to soils.

Read the decision at: Bovaird v. MOE.

ERT dismisses Chatham Kent wind turbine appeal

The Environmental Review Tribunal (ERT) has dismissed an appeal by the Chatham Kent Wind Action Inc. of a Renewable Energy Approval (REA) of a 270 MW wind farm near Tilbury and Ridgetown, in the Municipality of Chatham-Kent, Ontario. 

 

Key findings were made by the ERT at paragraphs 63 and 64 in its decision:

 

[63] The Tribunal has the duty to apply the statutory test. The onus is on those challenging the REA to establish how engaging in the renewable energy project in accordance with the renewable energy approval will cause serious harm to human health. Although Mr. Erhard raises concerns with respect to the accuracy of noise prediction, evidence is needed to establish that the alleged inaccuracies with noise predictions will cause serious harm to human health. No evidence and no submissions were made to connect the alleged inaccuracies with respect to the noise predictions with harm to human health or the environment.

 

[64] In conclusion, the Tribunal finds that the Appellant, the participant and the presenter have not shown that engaging in the Project in accordance with the REA will cause serious harm to human health as required by s. 145.2.1(2)(a) of the ERT.  The Tribunal, therefore, dismisses the appeal.

 

Read the decision at: Chatham Kent Wind Action Inc. v. MOE.

Decision on wind turbine judicial review "coming soon"

Ian Hanna's application for judicial review of wind turbine setbacks in Ontario was heard by a three-judge panel of the Ontario Divisional Court last Monday in Toronto.  The Prince Edward County resident has challenged the 550 metre setback under the Green Energy Act regulations.  The responding party, the Province of Ontario, believes that the case should be heard by the Environmental Review Tribunal rather than the Court.  The Divisional Court panel raised the question with counsel for Hanna, but eventually agreed to hear the case. 

The hearing had been scheduled for two days, but was completed in one.  The panel indicated that a decision could be expected "soon".

Read the Countylive.ca story at: Decision on Ian Hanna case "soon".

Appeal of Wind Farm Approval in Chatham-Kent on the Environmental Registry

EBR Registry Number: 011-1039

Approval for a renewable energy project - EPA s.47.3(1)
Instrument Holder: Kent Breeze Corp. and MacLeod Windmill Project Inc.( Kent Breeze Wind Farms )
Instrument Issued by: Ministry of the Environment

 

Application for Appeal Initiated by:

Applicant Name:   Bill Wachsmuth

Decision under Appeal:
A Renewable Energy Approval issued to Kent Breeze Wind Farms, located in the Municipality of Chatham-Kent, for a Class 4 Wind facility consisting of eight wind turbine generators, each rated at 2.5 MW generating output capacity, with a total generation capacity of 20 MW.

 

Grounds for Appeal:
The Appellant is appealing the approval on the following grounds:

1. the lack of a Traffic Management Plan for the project, which was a condition of approval.

2. the proponent did not provide a plan for night lighting that will minimize the impacts on birds.

3. the turbines, which are not permitted to operate while under construction, should not be allowed to operate in foggy conditions once fully operational.

Read the Notice at: EBR Notice.