Appendix V                                               ERT    Ostrander submission

“Unfortunately, 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.”

“The Director’s 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

1. 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.

2. 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 2008)

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.

3. The  Fred Fairman Revelation:

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 been completed.

4. The Myth of Continuous Monitoring:

A repeated 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.

5. 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? 

Source testing 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:

Failure to call public health physicians as witnesses to Air Pollution public  hearings and public meetings.

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