Ontario Land Tribunal begins to hear evidence regarding asphalt plant in Napanee

Lawyers working for R.W. Tomlinson Ltd., the Town of Greater Napanee, and a group of concerned citizens known as Keep Napanee Great presented their opening arguments to the Ontario Land Tribunal today in what is expected to be a 10-day hearing.

The matter before the Tribunal is an appeal by R. W. Tomlinson Ltd. of the Planning Act of the Town of Greater Napanee’s refusal of an application to amend a Zoning ByLaw (“ZBLA”) for the property municipally known as 8205 County Road 2 in order for Tomlinson to install a permanent asphalt plant there.

Lawyers from Gowling WLG were led by Michael S. Polowin, Partner, on behalf of Tomlinson, who began, “I’m getting old, and so over the years, I have done many, many hearings. In the vast majority of hearings that I’ve done. I can understand why we are there. I may not agree with the other side, but at least I understand. Rarely, I have no idea why we’re at a hearing. And this is one of those.”

He went on to explain his position that he and Tomlinson are seeking a zoning amendment to “permit a permanent rather than just temporary hot mixed asphalt (HMA) plant.” The issue of the HMA plant being permanent is important, he said, because the existing bylaw already permits a temporary HMA plant that may exist for the duration of a contract or for a year (whichever comes first) and then requires dismantling.

However, he argued that there is no definition of what dismantling means and so, “In theory, you could do a partial dismantling at the end of the year. Reassemble it the next day for a new contract and start all over again. So the temporary HMA plant can be operated on a virtually ongoing basis.”

Polowin continued by presuming aloud what the arguments of his opponents will be in the coming days and then attempting to discredit those arguments.

“It is clear that KNG and perhaps the Town would prefer that the entire quarry not operated at all but that is not why we are here,” he speculated.

He called into question some forthcoming testimony by citizens who live close to the asphalt plant’s proposed location, “This is classic neighbourhood evidence,” he said, and “those neighbours would clearly prefer that the HMA plant be located elsewhere even though they presumably enjoy driving on town roads paved with asphalt… The reality is that unpopular uses must go somewhere.”

“What sums up all of this are these facts,” he finished. “If the Tribunal in its wisdom were to turn down our appeal the following will still be true: the quarry with blasting, drilling and rock brushing, will still operate legally. And the temporary HMA plants can still operate for up to a year at a time with no required fallow period during operations. All of which is why I started out by saying, I have no idea why we are here and why we will be spending two weeks on this hearing.”

Of course, despite this condescension, John Ewart, the Town’s Solicitor, argued that there were indeed differences between the operation of a temporary asphalt plant and a permanent HMA plant.

Firstly, he indicated that the property where this is to be located is within the settlement area of the town, “where the site itself is bordered by a number of uses,” and he planned to articulate why that makes the change significant.

Secondly, the permanent nature of the plant itself, he argued, brings into question “the quality and the sufficiency of the review that was undertaken by the peer reviewers or even the proponent’s experts in this particular matter,” specifically with respect to air quality as well as noise. 

He also offered that planning evidence would support of Town Council’s decision to deny the rezoning and that the decision was based on what it felt was in the best interest of the citizens of Napanee.

Specifically, he pointed to Polowin’s conclusion that the townspeople would rather not see the quarry in operation at all. “There is no dispute” he argued, that in this existing quarry, the temporary plant has been working, “but that’s not the specific issue before the tribunal.”

Instead, what is before the Tribunal is “the strict requirement for a site-specific zoning” to site an operation such as a permanent HMA plant, he indicated, saying that “the Tribunal will hear evidence from those experts called on behalf of both KNG and the Town that the siting of a permanent asphalt plant, as proposed, simply is not in the public interest nor does it represent good planning.”

Therefore he called the Council decision to deny the bylaw amendment “well-founded,” and “when borne out, the right decision.“

For his part, Richard Lindgren a staff lawyer at the Canadian Environmental Law Association (CELA) introduced his client, Keep Napanee Great (KNG), as “an incorporated citizen’s group whose objectives include protecting the environment, conserving natural resources, and safeguarding public health in Napanee and across the broader Quinte region.”

Some members and supporters of KNG have homes or property adjacent to or near the existing quarry and near the site of the permanent asphalt plant and the permanent concrete plant being proposed by the appellant, he said, “I can advise that through its directors KNG was actively involved in the municipal planning process for the proposed asphalt and concrete plants. And KNG supported and continues to support the Town’s refusal to grant the rezoning request by the appellant.” 

Lingren said that he would be calling both expert and lay witnesses. 

Expert evidence would show, he indicated, with regard to air quality, dust and odour matters arising from the HMA plant, the Tomlinson air quality impact assessment is “missing key information that contains critical gaps regarding the discharge of airborne contaminants from HMA plant operations… wholly fails to identify or assess air emissions from the proposed concrete plant [and] has determined there will be significant exceedances of air quality criteria” for silica, and suspended particulate matter “at and beyond the property boundary line, even with mitigation measures in place.”

He also noted that there are new stricter federal standards on the horizon for the maximum cumulative limit for nitrogen dioxide and that the predicted concentration of that compound will exceed the 2025 federal standards.

So, he concluded that it is premature to conclude that the HMA plant can be built and operated in a manner that complies with applicable requirements and does not adversely affect sensitive receptions. 

An expert witness would also show that Tomlinson’s acoustic assessment “wholly failed to identify or evaluate sound emissions from the proposed concrete plant…. that the proposed plants.”

The OLT hearing is scheduled to take place over ten business days this month. Anyone interested can watch the Tribunal online.

This is a developing story with more to come, Kingstonist will provide updates.