Until the mid-1990s, increasing amounts of resources had been committed to the environmental assessment (EA) process. From a business point of view, however, resources required in the form of legal fees and consulting fees were only part of the problem for those who sought environmental approvals. Even if a project could justify an EA that consumed hundreds of hours of lawyers’ and consultants’ time, when the outcome of the process was not particularly certain the risk to the proponent was unbearable.
Ontario is a case in point. Prior to the introduction of amendments to the Ontario Environmental Assessment Act in 1996, EA hearings for proposed waste facilities consumed copious amounts of time and often resulted in either refused approvals or, as in the case of the Storrington Landfill, so many conditions were attached to the approval that the project was no longer financially viable.
The dilemma that Ontario’s government faced in 1995 was how to balance environmental safety with a rational and reasonably certain process. The course taken by the government was to introduce a Terms of Reference (ToR) document that would be approved by the Minister.
The ToR process allows the proponent and the environment ministry to ensure that all issues appropriate to a particular proposal are canvassed and dealt with comprehensively while also ensuring that issues that are not of great concern in a particular situation do not consume inordinate resources.
Once the EA documentation is completed the minister, in consultation with staff, review it and decide whether a hearing of the EA Board is required (to consider all or part of the application).
Under the 1996 amendments a “scoped” hearing allows matters that are unique, technically innovative or of particular public importance to receive the expert attention required, while allowing other matters to move through the approval process in a more expeditious manner without a hearing.
Adams Mine case
One recent example of a scoped hearing is the 1997 EAB hearing with respect to the Adams Mine proposed landfill. The Adams Mine was, until approximately 10 years ago, an active, open pit iron mine near Kirkland Lake in Ontario. The hearings dealt with a proposal to convert one of six of the abandoned pits into a municipal solid waste landfill designed to receive waste by rail haul.
While many of the issues dealt with were common to those at all landfills (such as dust suppression, noise and potential effects on surrounding wildlife and vegetation) some of the more technical aspects of the landfill were fairly new to Ontario. As a result, the minister referred these technical matters to the EAB while approving the other aspects of the application.
The hearing was conducted in approximately eight weeks and primarily dealt with the technical question of the containment of leachate within the landfill. The specific issue was whether the “hydraulic containment” approach to containment would be appropriate. Hydraulic containment refers to the use of the constant inward flow of groundwater from the area immediately surrounding a landfill to prevent leachate from escaping, instead of using a clay liner or other barrier to contain the leachate.
The EAB, having heard extensive evidence from the proponent’s and other consultants, came to the conclusion that the hydraulic containment system was reliable and approval was granted to the project subject to one condition.
In the case of the Adams Mine, hydraulic containment will be maintained by continuously pumping leachate out of the landfill in the initial phase of the operation in order to keep groundwater flowing in. After the first phase of the landfill (the first 100 years post closure), a passive system will be used to maintain inward groundwater flow for the following 900 years.
Following the approval of the landfill a judicial review was brought forward by the Adams Mine Intervention Coalition, which had participated in the hearing. The three-judge panel of the Divisional Court in its decision of July 1998 upheld the EAB’s decision to approve the site and impose the condition on the proponent for the approval.
Every EA involves different issues. The 1996 amendments to the EA Act allow the EAB, the environment ministry and the proponent to consider novel issues carefully (as they should) while not wasting precious time and resources on the “run of the mill” issues that can be dealt with by the proponent in conjunction with ministry staff.
This has obvious benefits for business, as EA applications that would have been prohibitively expensive (due to the anticipated length of the hearings) will now be more reasonable and predictable in terms of the consumption of resources.
It’s important to remember that there are no guarantees for environmental approval. Unsound or poorly considered proposals will not be approved blindly by the minister or the EAB. But with the more appropriate allocation of resources, the public can be sure that business and government will have the time and resources to ensure that controversial, novel or technically innovative approaches to particular projects are examined carefully to ensure that they are environmentally sound.