Gord Miller, the Environmental Commissioner of Ontario, has announced that his office will apply to intervene as a “friend of the court” in an Environmental Bill of Rights case that he believes could have long-lasting impacts on the future environmental decision-making.
Lafarge Canada Inc. is seeking a judicial review of a decision from the Environmental Review Tribunal. The case concerns two certificates of approval (C of As) issued to Lafarge by the Ontario Ministry of the Environment (MOE). Lafarge operates a cement manufacturing facility near Bath, Ontario.
In December 2003, Lafarge applied for a C of A to operate a waste disposal site at the facility and, in February 2004, the company applied for a Comprehensive C of A (Air) to replace its existing C of A (Air) for all sources of air emissions at the plant. An application to use alternative fuels was part of the application. It consisted of a proposal to discharge emissions into the air from the utilization of solid non-hazardous waste materials, including tires, animal meal, plastics, shredded tires, solid shredded materials and pelletized municipal waste as an alternative to primary fuels in its cement kiln.
The proposals were amended and posted several times to the Environmental Bill of Rights Registry under the Environmental Bill of Rights, 1993 (EBR). Numerous citizens made comments on the proposal.
“Citizens also requested that the proposals be made subject to an environmental assessment under the Environmental Assessment Act, but the Minister of the Environment denied those requests in November 2005,” says the decision of the Environmental Review Tribunal.
In December 2006, two environment ministryy directors issued the C of As to Lafarge. In January 2007, several local citizens, citizen groups and the Lake Ontario Waterkeeper (the applicants), applied under the EBR for leave to appeal the decisions of the directors.
To be granted leave to appeal, the applicants must show that it appears that there is good reason to believe no reasonable person could have made the decision in question and that it appears that the decision could result in significant harm to the environment.
The applicants alleged that the decisions of the directors conflicted with the ministry’s Statement of Environmental Values (SEV) under the EBR. On the same day that the directors issued the C of As, the ministry issued a Notice of Proposal for Regulation to ban the burning of tires in Ontario, the applicants noted. The decisions of the directors also failed to take into account the ministry SEV’s ecosystem approach and precautionary approach.
The directors argued that the decision to issue the C of As centred on the fact that all evidence indicated that Lafarge would be in compliance with regulatory standards. However, “[T]he Tribunal did not agree that approval of a C of A based upon compliance with numerical standards in regulations is automatically or necessarily a reasonable decision if reliance upon those standards results in a failure to observe provisions in other laws and policies also applicable to the decision,” says the decision. In the end, the Tribunal granted the leave to appeal.
Lafarge is seeking a judicial review of this decision, arguing that the Tribunal made an error when it decided that the ministry’s SEV is part of the relevant law and government policies developed to guide ministry decision-making.
“This is very important to me and will affect many more decisions going forward,” Gord Miller, the Environmental Commissioner of Ontario, told EHSjustice.ca newsletter. “My position is that the EBR and the SEV should be considered by ministry staff when they make decisions on approvals such as those that were granted to Lafarge.” However, he added, “how I view the EBR is not how ministry lawyers view the EBR.”
He also noted that he isn’t picking sides on the actual issue.
“This is a leave to appeal. [The parties] haven’t even gotten to the appeal. First, they have to get through this judicial review,” he said. Miller added that Lafarge hasn’t filed its judicial review yet, but that the reviews tend to “go quickly.” Most of the time, the judge wants to get on with them, he said. As a result, Miller expects the judicial review will occur early in 2008.
This news item was adapted from a short article by Editor Jennifer Holloway that first appeared in our affiliate news and legal information service EHS Justice. To subscribe, visit EHSjustice.ca
The Lafarge case is being closely watched by solid waste industry professionals, as the decision will determine the allowance of Ontario cement kilns to burn various wastes that are currently disposed of in landfill or, in some cases, diverted for other purposes. For further analysis as it purtains to scrap tires, read the “Blog” column by Usman Valiante entitled “Tires: Starvation in a time of plenty” (Solid Waste & Recycling magazine, October/November 2007 edition, available online).