ERT Ostrander submission
although the MoE got off to a good start in 1970 in the regulation of Air Pollution, more recently their behavior in this
arena has consistently been Regressive and Devious.”
Decision on Ostrander has been compromised by the documented pattern of conduct by the MoE in the regulation of air pollution
in eastern Ontario in the past 15 years.”
Pushing the Envelope of the SEV
- Dirty Tricks: The Christmas Party Trick.
On two occasions,
in December 2006 (Bath, Lafarge), and in December 2012 (Ostrander, Gilead) , the MoE announced a Director’s Approval immediately before the Christmas and New Years break, during which a two week period was allowed for Appeal of the decision.
- In the “What Were They Thinking?” category:
In the Decision
by the ERT (April 4, 2007) in the citizen’s Application for Leave to Appeal in Dawber v. Director MoE, in the Bath, Lafarge application to burn tires: the Tribunal
noted that: “under the Env Bill of Rights 1993 it appears that there is
good reason to believe that no reasonable person, having regard to relevant law
and government policies, could have made the Decisions dated December 21, 2006 (to
grant the two certificates of approval) to Lafarge Canada Inc.”
In the subsequent
appeals of the ERT decision by Lafarge to the Ontario Divisional Court and later
the Ontario Court of Appeal, the Divisional Court noted that it would only make a finding against the Decision of the regulator
if the actions of the regulator in making the Decision could be described as : egregious;
bungled; or betraying the public trust. The Divisional Court
did in fact make such a finding (June 2008), although they did not indicate which
of the three epithets pertained. The Court of Appeal agreed. (November
However it is clear
that Directors of the MoE are not unreasonable people, otherwise they would not hold such a position. Therefore one must conclude
that the Director, at least in that particular case, was marching to a drummer
other than the MoE Statement of Environmental Values. In that case presumably the different drummer was the interests of industry
which the regulator had placed ahead of their own SEV ethic.
- The Fred Fairman
In the course
of research by citizens in the Bath case, the late Dr. Fred Fairman (retired professor of mathematics
, Queen’s University) discovered that the MoE had for some time been allowing Lafarge to surreptitiously import hazardous
waste from New York State to be burned in the Lafarge cement kiln, this without the appropriate public approvals process having
- The Myth of Continuous Monitoring:
practise by the MoE when approving applications for facilities which release
toxic industrial air emissions was to reassure the public that there would be
Continuous air emissions monitoring in place, with Strict, Stringent, Rigorous and Robust standards, for the protection of the public health. These public pronouncements were repeatedly made by the MoE in Trenton, 2000 (Norampac
Steam Reformer), Bath 2005 (Lafarge cement kiln), and Clarington 2010 (Covanta municipal waste incinerator).
While it was technically
true that air emissions monitoring in these cases was Continuous, this was a very misleading and deceptive statement which
could easily be misinterpreted by the public. Although various less hazardous emissions would indeed be monitored continuously
in these operations, when it came to more hazardous emissions such as Particulate Matter, Heavy Metals, and chlorinated organic
poisons, monitoring would actually only be done as 3 X 3 hour stack tests on one day each year. This amounts to monitoring
over 1/1000 of the year, which could better be described as Rare monitoring, or statistically speaking, no effective monitoring
at all. It certainly was not continuous monitoring.
It was also revealing
that the MoE persisted in this method of public reassurance in the Clarington case despite the revelations and fallout from
the Lafarge case of five years before.
- Smoky Stacks and the Three Bears: Mama Bear, Papa Bear and Baby Bear;
or: Why use a superior method when you can
use an inferior one?
vs POI vs AAQC methods of industrial air discharge monitoring.
In the 1990’s
and before, the standard of practise for air discharge monitoring from a polluting smokestack in Ontario was to do POI, Point
of Impingement, testing, in which air samples were taken at the property limit of the facility
to measure contaminant fallout from the stack. This could be described as a “Simple but rather Ineffective”
system. In his 2005/06 annual report ECO recommended, based on Env Canada recs,
that the MoE move to Source testing, which uses direct measurement of chemical
discharges by in-stack probes, and which could be described as a “Simple and Effective” method of monitoring.
However the MoE instead chose to proceed with their initiative to abandon POI in favour of AAQC, the Ambient Air Quality Criteria
method. This uses computer models to predict deposition of contaminants in the
region surrounding sources of pollution, and requires no chemical sampling at all. It could be described as a “Complex
and Ineffective” method of regulation.
It is also noteworthy
that despite the observations of the Tribunal in Dawber, and by the ECO, there remains as of today no absolute limits on chemical
air discharges in Ontario (Guidelines A7 and A8), so the solution for air pollution in Ontario continues to be that of dilution.
6. An Apple a Day keeps the Doctor away:
call public health physicians as witnesses to Air Pollution public hearings and
In the course of
public hearings and public meetings regarding Air Pollution issues at Oakville (West Lincoln, OWMC hazardous waste treatment
facility, Joint Board,1994), Cornwall (MMR pcb hazardous waste incinerator ERT 1999), Trenton (Norampac steam reformer, public
meeting, 2000), Bath (ERT, 2006), Clarington (Covanta incinerator, public meeting
2009), and apparently Ostrander (2013 ERT) no public health physicians have ever been called by the MoE to appear as Witnesses.
Given the lack of expertise of the MoE in human health, this is inappropriate.
Alban Goddard Hill February 16, 2013