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Environmental Law Article
This article appeared in the Fall 1998 issue of Municipal World.
How Planning Act Strategies Can Compensate
For MOE Laissez FaireJohn Willms, Willms & Shier, Barristers and Solicitors, Toronto , Ontario and Tom Storey, Storey Samways Planning, Chatham, Ontario
Summary
Regulatory changes, downsizing and downloading, have reduced municipal and public input into the environmental approval of Locally Undesirable Land Uses (LULUs), such as landfill sites. Changes to the Environmental Assessment Act and the Environmental Protection Act make it possible for proponents of major undertakings, including large landfill sites, to obtain environmental approvals without any public hearing. The Ministry of Environment (MOE) is unable and unwilling to regulate or monitor local effects such as noise, odour and dust.
However, recent experience illustrates that host municipalities can use the Planning Act to exert influence over the location and operation of LULUs, and maintain leverage to ensure mitigation of or compensation for local impacts.
First, The Bad News
Regulatory changes are rapidly streamlining environmental approval of LULUs - Locally Undesirable Land Uses. Opportunities for public and municipal input into the environmental approval process have been reduced significantly. Lately we have seen a trend towards fewer and shorter hearings. Refusals are less frequent. Under regulatory reform proposals, some classes of LULUs will be subject to permit-by-rule approval, eliminating the certificate of approval process altogether. It is not clear at this stage whether the public will even know about them unless municipalities make extra efforts to pass along notices received through the MOE.
For more than a decade, provincial bureaucrats laboured in vain to integrate environmental and land use planning systems. The most recent effort culminated in the cryptic and unresolved section 16.1 of the Planning Act1 Now, the combined effects of streamlined environmental regulation and increased municipal authority over planning matters, offer municipalities a way to exert a strong influence over how and where its LULUs operate.
In this article we have used municipal waste landfills to illustrate the shift of responsibility for environmental planning - from proponents and the MOE to municipalities. Moreover, we argue, conscientious land use planning policies adopted by municipal council will be respected by decision-makers and tribunals. Failure to plan will derogate from local control over approval and operation of LULUs.
It is now possible for municipal or private sector proponents to establish or expand waste disposal sites without a public hearing under either the Environmental Assessment Act (EAA) or the Environmental Protection Act (EPA). This summer’s new non-hazardous waste landfill site regulation2 introduces pre-approved "fully protective" engineering designs - potentially eliminating groundwater siting concerns. Proponents utilizing these generic designs can apply to locate large landfill sites in a wide range of settings previously excluded for hydrogeological reasons. Social, economic, nuisance and land use concerns will become the focus of site selection. The extent to which the Minister of the Environment will scope these concerns out of EA Terms of Reference remains to be seen. The first few examples suggest that the Minister will make ‘liberal’ use of the scoping power. Moreover, the EAA and EPA are administered by a downsized, overextended Ministry, while reviews and approvals are subject to tight deadlines.
The Streamlined Environmental Assessment Process
The elaborate and arcane EA planning process of the last decade is defunct, replaced by a more mechanical, proponent-driven, approval-oriented process. The proponent develops an EA roadmap and consults with stakeholders. The Minister approves the roadmap, after considering the stakeholders’ comments. The roadmap (Terms of Reference) is binding on all parties. The Terms of Reference establish the environmental assessment process - and may significantly shorten or eliminate traditional EA requirements, such as the consideration and analysis of alternatives to the undertaking, need for the project and social impact assessment.
The proponent prepares and files the environmental assessment documents and supporting studies with the MOE, there is a public comment period and government staff conduct a review. Comments from the public are again solicited. The Minister may approve the undertaking without a hearing, or may order a mediation of outstanding issues, or a public hearing. The Minister has wide discretion to restrict the scope of a hearing, prohibiting the Board from hearing evidence on issues the Minister chooses to eliminate. The Minister may also impose a deadline for decision on the Board.
EPA Certificate Of Approval Hearing Eliminated
Once a landfill undertaking has received approval under the EAA, whether with or without an EAA hearing, the proponent must obtain a certificate of approval under the EPA for the detailed design and operation of the site. The MOE's jurisdiction contracts dramatically - from consideration of the widely defined "environment" in the EAA, to the EPA's limitation to considerations of "natural environment" only.
Historically, the threat of public hearings and legal challenges provided host municipalities with checks and balances to ensure fair treatment by private and public sector proponents. A new EPA regulation3 eliminates a public hearing for any landfill undertaking that has been approved under the Environmental Assessment Act. It will prevent an EPA hearing even where the EA was approved by the Minister without a hearing. The third party right to appeal a certificate of approval provided in the Environmental Bill of Rights may also be foreclosed.
This system adds certainty and predictability for proponents. It will speed many approval decisions and should reduce costs for all participants. It also reduces local influence. Conditions of siting, construction and operation will be negotiated between the MOE and the proponent, guided by the outdated provisions in Reg. 347, and by the generic requirements of the new landfilling regulation and its companion guideline4. This may be adequate in some cases. However, host municipalities have serious concerns that the MOE may have historically ignored, overlooked or overridden. For example, financial issues are a major concern for host municipalities. MOE ignores financial concerns of residents and municipalities.
MOE Downloads Nuisance To Municipalities
Responsibility for local impacts, especially nuisance impacts, falls onto the municipality. Once a project is approved, involvement of the MOE will decrease drastically. MOE resources are spread very thin, and enforcement activities are reserved for highly visible or notorious problems. The Ministry of Environment Business Plan 1998-1999 states:
To deliver this part of our mandate more effectively, the ministry focusses its efforts on areas where the greatest environmental benefit can be achieved. We are continually developing ways to prioritize our operations so that resources go towards dealing with environmental issues that are significant or pose a risk to public health as opposed to nuisance type issues.
This is not news. For some time the MOE has indicated its inability and unwillingness to monitor and regulate local impacts of LULUs. The Minister of the Environment baldly stated this in a letter quoted in the recent Hamilton Harbour Commissioners5 decision. In that case, the City of Hamilton removed animal rendering plants from the list of permitted industrial uses. Rendering industry representatives argued that modern plants utilize sophisticated technology that controls adverse odours. However, the MOE appeared to join the local residents and the municipality in their skepticism concerning promises of "odour free" rendering plants. According to the OMB, the MOE had little confidence in its ability to monitor or regulate the rendering industry, both because its resources were stretched to the limit, and because MOE is "devolving itself of the responsibility to monitor this aspect of the industrial approval process." As evidence, the City produced a letter it had received from the Minister of the Environment regarding a matter of noise pollution, that stated:
It is the position of the Province and the Ministry of Environment and Energy that municipalities are best equipped to address noise, odour and dust problems. It is incumbent on area authorities to set and enforce by-laws to address issues of concern to local residents and businesses. In the absence of appropriate by-laws, it is the responsibility of local officials to consider provincial guidelines and arrive at effective solutions6.
The Good News
A prudent and forward-thinking host municipality can use the Planning Act to preserve the checks and balances that protect local interests in the siting and operation of landfill sites and other LULUs. Municipalities can do background reports, conduct studies, consult with residents, and council can establish rational, defensible policies governing location and operation of LULUs. While outright prohibition of LULUs may be struck down7, reasonable regulation, based on local environmental, economic, social and planning concerns, will likely be respected by the OMB and the courts.
Deference to municipal planning policies adopted by council is illustrated by the recent North Simcoe Waste Management Inc8. decision. The Environmental Assessment Board (EAB) considered an application by North Simcoe Waste Management Inc. for a processed organic waste transfer facility. The MOE had no technical objections to issuing a Certificate of Approval. The EPA permits the EAB to declare that a by-law that "affects the location or operation of a proposed waste disposal site" does not apply to the waste disposal site9. Instead of challenging the Township zoning at the OMB, the proponent asked the EAB to declare that the municipality’s zoning by-law would not apply to the proposed facility. The applicant may have hoped that an environmental tribunal would favour technical acceptability of a project over planning considerations - a result far less likely at the OMB. The EAB held that the proposed land use would not comply with the municipality’s Official Plan or zoning by-law. Compliance with the Official Plan was high on the list of the EAB's considerations in turning down the application and refusing to exempt the facility from the by-law.
The EAB stated:
The community was solidly against the proposal, and argued that if the by-law is declared inapplicable the integrity of the Township's planning will be disregarded. ... We are not persuaded that the planning framework of the municipality should be ignored.
In this light, the new EAA process could be characterized as an attempt to streamline and standardize the environmental approval system, leaving the onus on the municipality to ensure that it has a comprehensive well considered land use plan in place.
The demise of intervenor funding will also increase the focus on the municipal council as the main forum for public input, consultation and appeal. If Council acts rationally then it can rely on the Planning Act for protection. If it acts unreasonably or in bad faith, then its attempts will die on the sword of section 36.
A comprehensive policy adopted by municipal council can serve to protect local concerns that might not otherwise be served by the streamlined environmental approval process. Consider the following:
The development of municipal policy by council forces all parties to think strategically
A clear statement of municipal intent should improve communications between parties and allow the proponent to design its approach appropriately, from the earliest stages.
The relationship between environmental approvals and Planning Act approvals is illuminated
Public consultation and education takes place as part of the planning process, and mindless or frivolous opposition is diffused.
Policy adopted by municipal council acts as a guideline in considering the various applications for LULUs. This ensures consistency in approach which in turn can lead to enhanced credibility for the municipality.
The final and implementing approval may be the rezoning of the site by the municipality. This can provide leverage for a host municipality when negotiating with a proponent, provided it acts rationally.
Critics of the EAA process have long argued that the proper forum for decisions on the siting of LULUs is the land use planning process. It is time to put that approach to good use. Local government can ensure that waste disposal facilities and other LULUs are established and operated responsibly by utilizing the Planning Act to steer the inevitable LULUs to the most appropriate sites and make sure that they are subject to reasonable conditions that meet local needs.
Precedents show that reasonable LULU planning provisions, developed through due process at the municipal level, are respected by the OMB and the EAB. Municipalities can take advantage of this to maintain a strong role in the approval process.
Footnotes:
Section 16.1 states: "The council of a municipality or a planning board may by by-law elect to follow the prescribed processes and develop the materials prescribed for the preparation of an official plan and any processes followed or materials developed in the preparation of the plan may be considered under the Environmental Assessment Act with respect to any requirement that it must meet under that Act." No regulations have been passed to implement this provision.
O. Reg. 206/97. Ontario Water Resources Act regulation 207/98 prevents OWRA hearings for sewage works subject to the EAA.
O. Reg. 232/98 and Landfill Standards, A Guideline on the Regulatory and Approval Requirements for New or Expanding Landfilling Sties (MOE, May 1998)
Hamilton Harbour Commissioners v. Hamilton (City) (1998), 36 O.M.B.R. 485 (O.M.B., Krushelnicki)
36 O.M.B.R. 485 at p. 492. The draft new Municipal Act proposes to formalize these nuisances as areas of municipal jurisdiction.
At least in the absence of planning rationale for an unqualified exclusion. See Hamilton Harbour Commissioners v. Hamilton (City, Note 4, at page 498.
Re: North Simcoe Waste Management Inc.(1997), 25 C.E.L.R. (N.S.) 24, (E.A.B.)
To comment, call John Willms in Toronto at (416) 863-0711 or send email to
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| Revised: May 25, 2001. ©Willms & Shier Environmental Lawyers LLP, 2004. |
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