Keep Napanee Great fails in appeal of Tomlinson environmental compliance approval for asphalt plant

The Ontario Land Tribunal (OLT) has dismissed a “leave to appeal” application made by Keep Napanee Great to annul a government decision to grant an Environmental Compliance Approval for R.W. Tomlinson Ltd. to operate a hot-mix asphalt plant in Greater Napanee. 

The decision was delivered in writing by OLT vice-chair Hugh S. Wilkins and member Jennifer Innis and made by order of the OLT on Thursday, Nov. 9, 2023.

In April 2022, R.W. Tomlinson Ltd. (Tomlinson) applied to the Ministry of the Environment, Conservation and Parks (MECP) for an Environmental Compliance Approval (ECA), which regulates air and noise under Section 9 of the Environmental Protection Act, to operate a hot-mix asphalt plant in conjunction with the existing quarry at 8205 County Road 2 in Greater Napanee. That quarry is licensed under the Aggregate Resources Act. 

On September 1, 2023, the MECP issued an amended Environmental Compliance Approval Number (No. 3078 CTHPUN) to Tomlinson to operate a hot-mix asphalt plant in conjunction with the existing quarry. The proposed activities include extraction of aggregate material, crushing and screening, hot-mix asphalt production and storage, material handling, and any ancillary and support processing and activities.

Keep Napanee Great (KNG) filed an application within the 15-day timeframe prescribed by Ontario’s Environmental Bill of Rights, 1993; that application sought leave to appeal the MECP Director’s decision to issue the proposed ECA.

The proposed ECA would permit a hot-mix asphalt plant that would operate at a maximum rate of 80,000 tonnes of asphalt per year, with operations occurring approximately 160 days a year, from April to the end of November.  Asphalt production and shipping generally occur during daytime hours at a maximum production rate of 180 tonnes per hour, with occasional projects requiring the plant to operate during nighttime hours.

The proposed ECA imposes specific conditions that require the entire operation on the property to be designed, developed, built, operated, and maintained per Tomlinson’s Emission Summary and Dispersion Modelling Report, Acoustic Assessment Report, and the supporting information used by the MECP in the proposed ECA issuance.  

The proposed ECA offers limited operational flexibility for future construction, alternations, extensions, or replacements to the operation, provided those changes are within the scope of the hot-mix asphalt plant and existing quarry operations, do not increase the overall production limit, and result in compliance with the performance limits. The proposed ECA also establishes a “Facility Production Limit” of up to 80,000 tonnes of hot-mix asphalt produced at the hot-mix asphalt plant and 1,200,000 tonnes of aggregate per year at the existing quarry. There are a total of 14 terms and conditions in the proposed ECA.

Section 41 of the Environmental Bill of Rights, 1993 sets out that, when adjudicating applications for leave to appeal, the Tribunal must consider the reasonableness of the decision and whether the decision could result in significant harm to the environment. 

KNG submitted that issuing the ECA was an unreasonable decision by the MECP Director because it did not consider the MECP’s Statement of Environmental Values as required under s. 7 and s. 11 of the Environmental Bill of Rights, 1993; the common law rights of residents; nor the Environmental Protection Act and Ontario Regulation 419/05.

The MECP’s Statement of Environmental Values sets out that “the Ministry adopts an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them.”

The OLT found that KNG’s application did not focus on how the proposed ECA will affect the interactions among air, land, water and living resources, but rather that it argued that “there are gaps and flaws in the data that the [Tomlinson] used when assessing the air, noise, dust, and other impacts of the proposed facility.” The application to appeal also alleged that the MECP failed to properly assess the cumulative effects of the proposed facility.

The tribunal’s decision stated, “To apply the ecosystem approach, comprehensive data is required in order to assess and consider the processes, functions and the interactions among components of the environment that may be impacted by the decision or activity in question… [KNG] does not contest that [Tomlinson] completed air, noise, dust and other studies regarding the impacts of the proposed facility, but it argues that other data and methodologies should have been applied.”

The decision continued, “The Tribunal must consider how the decision was reached and what was considered, and it must consider the decision itself to determine whether the reasonableness test is satisfied.” The test, they write, “is not whether the [MECP] Director’s decision could have been improved, made differently, or whether there is evidence in support of a different decision. There must be good reason to believe that the decision is outside the range of reasonable decisions that were possible given the facts and the applicable laws and policies.” 

Further, the OLT found no evidence demonstrating “that processes, functions and the interactions among components of the environment may be impacted” by the MECP Director’s decision to issue the ECA. They noted that KNG “has demonstrated that the decision could have been made in a different manner and that there is evidence in support of a different decision, but it has failed to demonstrate any good reason to believe that no reasonable person, having regard to the ecosystem approach, could have made the decision to issue the proposed ECA.”

With regards to the Environmental Protection Act and Ontario Regulation 419/05, the tribunal found that the Director took into account the requirements in the Act and the Regulation; had MECP experts review Tomlinson’s air, noise, odour and dust studies and reports; and made her decision based on their findings and advice. KNG’s team, the decision stated, “demonstrated that different methodologies could have been used resulting in different modelling, but… failed to demonstrate why these should be preferred.”

Thus, KNG’s request for “leave to appeal” was denied.

In August 2020, Tomlinson applied for an amendment to the Zoning Bylaw for the Town of Greater Napanee to permit the establishment of a permanent hot-mix asphalt plant and a permanent ready-mix concrete plant on the property adjacent to the existing quarry with the same municipal address. The Town Council voted in opposition; Tomlinson has appealed this matter to the OLT (Case No. OLT-22-003833). The tribunal held a hearing on this separate matter from August 14 to 25, 2023, and the decision is currently pending before another panel of the OLT.