Tomlinson continues application process for asphalt plant despite Napanee Council decision

Despite the public outcry and lengthy appeals process, R.W. Tomlinson appears to be confident that they will get their asphalt plant in the Town of Greater Napanee, as they continue to invest in applications for environmental approvals from the Province.

This comes after the Town Council voted against the zoning by-law amendments proposed by the company at the Council Meeting held on Tuesday, Apr. 5, 2022. The more-recently-filed proposal is for an Environmental Compliance Approval (ECA) with Limited Operational Flexibility (air & noise) for R. W. Tomlinson Limited, a hot mix asphalt plant to be located in the Town of Greater Napanee, Ontario.

The Town of Greater Napanee, at their regular Meeting of Council on Tuesday, Apr. 5, 2022, denied the zoning by-law amendment request from RW Tomlinson to permit a permanent asphalt plant at the quarry on County Road 2 “on the basis that it does not appear to be in the best interest of the community. Council also passed a motion to advise the Provincial government that Greater Napanee is an unwilling host for a permanent asphalt plant at this specific location.”
Image of proposed location and an asphalt plant via Town of Greater Napanee documents.

Through the Environmental Bill of Rights, all Ontarians have the right to comment on certain proposals that might affect the air, water, soil and wildlife in Ontario. The consultation period for Environmental closes at 11:59 p.m. on August 20, 2022. Anyone can submit a comment within the comment period online through the Environmental Registry of Ontario (ERO).

According to the ERO website, “It’s important to know that we consider the content of the comments as more important than the number of comments we receive. We’ll also decide whether your comment can be posted for others to see. We will not post your comment if it: contains inappropriate or offensive content (language or links), is off topic, or contains personal information.”

On Tuesday, May 3, 2022, the Town of Greater Napanee received a Notice of Appeal from Gowling WLG on behalf of R.W. Tomlinson Ltd. pursuant to Section 34(11) of the Planning Act, in response to the Town’s refusal to amend Zoning By-Law #02-22 to permit a permanent asphalt plant and concrete batching plant at 8205 County Road 2.

The Planning Act provides for an applicant’s ability to appeal a municipal decision refusing an application. Appeals are forwarded to the Ontario Land Tribunal (OLT) to make a final decision on the matter in accordance with governing legislation.

It is anticipated by the Town that approximately eight to 12 months will pass before the municipality will be notified by the OLT of any scheduled proceedings. Following formal proceedings, the Tribunal’s final decision may not be made until several months following the conclusion of any proceedings.

So, why continue with an ECA well before the facility can lawfully be established and operated? Multiple attempts to speak with Rob Pierce, Senior Vice President, Planning & Development at Tomlinson, or anyone else at the company went unanswered.

According to Gary Wheeler, media spokesperson for the Environmental Registry of Ontario, it is common for companies to apply for their ECA and their zoning approvals at the same time. The company can decide whether they want to risk spending money to design a site and apply for an ECA for an activity that may not be allowed to proceed. 

“An ECA does not override any local planning decisions, and therefore, a site can not operate without the appropriate zoning in place,” he assured. “The matter of zoning is a separate independent process from the ECA approvals process.”

Wheeler said there is no advantage to Tomlinson if the ECA is approved.

“The ECA approval process under the Environmental Protection Act and decisions related to zoning under the Planning Act are separate processes. The ECA approval process helps ensure that facilities are complying with ministry environmental legislation and regulations when engaging in activities that may impact the environment,” he explained.

“Any company can apply for an air ECA prior to obtaining the necessary zoning, but the company runs the risk of not being able to proceed with its project even if the Ministry determines that an air ECA can be issued, but the company does not obtain the necessary zoning,” Wheeler stated.

Logo via the ‘Keep Napanee Great: Greater Napanee Residents Against the Asphalt Plant’ Facebook page.

Richard D. Lindgren of the Canadian Environmental Law Association is one of the lawyers representing the grassroots group ‘Keep Napanee Great: Greater Napanee Residents against the Asphalt Plant,’ which has vehemently opposed the proposed asphalt plant in relation to the rezoning appeal and the ECA application.

“I have been practicing environmental law since the 1980s and, in my experience, it is unusual and premature for a proponent to apply for a technical permit or licence for proposed land use that cannot yet be lawfully established on the subject property,” Lindgren said.

“In this case, my client is concerned about the timing of Tomlinson’s ECA application, particularly since the rezoning appeal may not be heard and decided by the Ontario Land Tribunal for quite some time. But more fundamentally, my client is concerned about the airborne emission of various chemicals, compounds, and other substances from the proposed asphalt plant if approved,” he continued. “This is why ‘Keep Napanee Great’ will be filing comments with the Environment Ministry in opposition to the proposed ECA.”

Residents may make their own comments on the ECA proposal via the Environmental Registry of Ontario.

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