Solid Waste & Recycling

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Implications of the Lafarge Decision

A proposal from Lafarge Canada Inc. to burn scrap tires and certain other wastes in a cement plant in Bath, Ontario has received what could be considered an approval in principle by that province's en...


A proposal from Lafarge Canada Inc. to burn scrap tires and certain other wastes in a cement plant in Bath, Ontario has received what could be considered an approval in principle by that province’s environment ministry. Environment Minister Laurel Broten is not requiring an environmental assessment of the project, though it will still have to obtain a Certificate of Approval (C of A) under the province’s Environmental Protection Act (EPA).

This is a significant development in the province for several reasons.

First, the environment ministry has avoided making controversial decisions in recent years; this decision seems to indicate a greater willingness to make “tough” decisions.

Second, the decision has implications for waste disposal. Waste-to-energy projects may be at the early stages of finding favour again in Ontario, as refuse derived fuel (RDF) becomes part of a broad matrix of alternative energy sources (along with wind, biogas and geothermal power) feeding the electricity grid, and part of the solution to a perceived “crisis” related to declining domestic landfill disposal capacity. (Ontario plans to shut down its coal-fired generators and is scrambling to find “green” replacement for the missing megawatts.)

Minister Broten’s decision not to designate Lafarge’s project under the Environmental Assessment Act (EAA) may seem strange to some observers as it is often assumed that all significant undertakings that could have an impact on the environment will be subjected to an EA. In fact, there are several approval processes in Ontario that apply to such proposals and as such, an EA approval may be redundant in certain circumstances. The requirement of a C of A under the EPA is one of the most common; this sets out the conditions under which undertakings can operate in an environmentally responsible manner.

So why not designation under the EAA?

The story of the EAA is full of irony. Originally, the EAA was intended to apply to government undertakings, not private sector ones. Yet, over the years, the situation has reversed and regulations now exempt a great many government proposals which were originally intended to be subjected to EA. At the same time, provisions have been enacted that allow the government to require certain significant private sector undertakings to be designated for EA via regulation (or, where a proponent is willing, to enter into a designation voluntarily through an agreement with the ministry).

Requests can be made to the minister to designate certain undertakings under the EAA. Opponents of significant undertakings often do this, their ostensible motivation being to make sure that the potential benefits and environmental impacts of a project are objectively weighed. The EA process, however, is so time consuming and expensive, and the outcome often so uncertain, that project opponents sometimes request EA designation simply to frustrate a project, in hopes that it might be killed altogether. This has happened often enough to waste management and disposal proposals that there is currently a dearth of much-needed waste infrastructure in Ontario, and industry practitioners (including this author) have called upon the government to reform the EA process to give it more certainty.

This is why the minister’s decision about the Lafarge project is interesting. A citizens’ group that is opposed to the project (or at least has serious questions about it) made a request that the minister designate Lafarge’s proposal under the EAA. Lafarge’s plan is to supplement up to 10 per cent of conventional fuels with alternative fuels at the company’s Bath plant (near Bellville in eastern Ontario). The alternative fuels include scrap tires as well as garbage such as cellulose, plastics and bone meal. In November, the minister sent a letter to Lafarge confirming she would not designate the proposal under the EAA.

In her letter to the party that requested the designation, the minister notes that some waste materials such as scrap tires and some plastics are not easily recyclable. Their rejection by recyclers would result in additional materials being sent to landfills. She also notes that an earlier plan to burn used oil had been withdrawn by Lafarge.

Implications

The implications of the Lafarge decision will please some and disappoint others. People who oppose thermal treatment of waste and who believe that almost everything can be recycled will likely be disappointed. Proponents of potentially controversial undertakings may see the decision as heartening. The minister has made a decision despite its potential to attract negative attention.

Finally, the decision has implications for the alternative power generation sector, which faces challenges not unlike those of the waste industry. To date, electricity in Ontario has been generated almost entirely by a combination of hydro-electric, nuclear and coal facilities with relatively small contributions from natural gas and alternative sources. With the planned phase out or coal generation and the growing demand for power, the government is starting to consider renewable sources of energy including RDF, landfill gas and biogas, to name but a few.

In the context of the Lafarge decision and the pressure on the government to resolve both the waste and energy “crises”, it appears the time has come for some of these projects to receive a level of consideration that has, to date, been lacking in the province.

Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at achamberlain@airdberlis.com


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