ORAL SUBMISSIONS re: Dillon et al v. Ministry of the Environment

From: Michael and Maureen Cassidy, Ottawa and Tatlock

Oct. 31, 2001

Re: Permit Granted to OMYA (Canada) Inc. # 00-P4096 under s. 34, OWRA

EBR Registry Number: #IA00E0427

1. Introduction: Our grown children, their children and future generations face a world where, for reasons of climate change and trade agreements, water is likely to become an increasingly scarce resource. Our society needs to take great care with this legacy that we hope to leave to future generations - namely, sufficient clean and safe water to satisfy personal needs and our common needs for a healthy life and economy. Water budgets, conservation, and careful consideration of how we use water will have to become the norm in the days to come. The politics of water will be a hard struggle, one where we must carefully examine the path we take or risk losing our way. This is why we are at this hearing.

2. The OMYA Permit to Take Water (PTTW) has attracted an unusually high level of public concern, as reflected in the 283 letters that responded to electronic posting of the permit application; the number and diversity of the appellants; and the length of the hearings

3. At the request of the Chair, the parties appealing the OMYA permit developed a consolidated list of issues and divided the lead on these various issues among themselves. We are united in seeking a safe and sufficient water future. We support the concerns of our fellow appellants, notably with respect to the water and trade issues, the terms and conditions of the OMYA permit, and the inadequate provision for public input into the permit’s proposed Phase II.

4. Issues: Two groups of issues in the consolidated list remain of particular concern to us:
I: Failure of the Ministry of the Environment (MOE) to apply an ecosystem approach in its decision on OMYA’s permit application, including failure to consider the whole watershed;

II: MOE’s failure to have proper regard to conservation and caution in granting the permit, as evidenced by its failure to secure sufficient information from OMYA to make a sound decision.
5. Failure to apply an ecosystem approach: During the hearings ecologists Nancy Doubleday and Ted Mosquin both testified as to the current understanding of the application of an ‘ecosystem approach’ to environmental decision-making. As outlined in MOE’s Statement of Environmental Values, this approach views the ecosystem "as composed of air, land, water and living organisms, including humans, and the interactions among them." The SEV also states that in making decisions, the Ministry will consider cumulative effects on the environment and "the interrelations among the environment, the economy and society." In testimony it was agreed that the Ministry’s SEV applies to decisions on water-taking permits through its incorporation in Regulation 285/99 under the OWRA. We also noted the strong emphasis MOE has given to its SEV in its most recent annual business plans. The 1999-2000 plan states that "The Ministry’s mandate, articulated in the statement of environmental values (SEV) that underpins all its activities, is to protect the quality of the natural environment so as to safeguard the ecosystem and human health and to foster the efficient use and conservation of resources." We believe that the Tribunal should ensure that the Ministry’s actions match its words.

5a. Calcium carbonate ("calcite") from OMYA’s quarry at Tatlock is an essential component of OMYA’s production at its plant 40 km. away at Glen Tay, where it produces large quantities of slurry by grinding calcite and mixing it with water. From our perspective as seasonal residents with a cabin located only two miles from the quarry, we saw that a PTTW that allows a fivefold increase in OMYA’s water supply will bring comparable increases in calcite production at the OMYA quarry and in the number of heavy trucks transporting calcite between Tatlock and Glen Tay. Such an expansion has the potential to cause enormous harm to the environment and to the social and economic future of a large area of northern Lanark County. We submit that these are among the ecosystem impacts that should be addressed and resolved before OMYA receives the amounts of water it originally applied for.

5b. At the hearings we calculated that OMYA’s projected annual production of four million tons of calcite was equivalent to 100,000 truckloads per year moving between Tatlock and Glen Tay. This translated into a truck travelling north or south along the County Road 511 corridor once every two or three minutes 24 hours a day, every day of the year. These figures were not contested at the hearings. Evidence was submitted that noise and other forms of pollution from OMYA’s truck traffic are already a serious issue in north Lanark. MOE witnesses were among those who agreed that this volume of heavy truck traffic could have adverse effects on their environment if it passed through the area where they lived. Evidence was put forward, when Mr. de Launay of the Ministry of Natural Resources appeared, that MNR should have considered the potential impact of truck traffic when it increased OMYA’s quarry permit at Tatlock to 4 million tons per year in 1967, but that this was not done. We believe that the permit now being sought by OMYA provides a second chance to address an important issue that MNR appears to have overlooked four years ago.

5c. In testimony Dr. Doubleday agreed that the impact of the projected volume of trucking on people and the environment in the 511 corridor and through the village of Lanark could be considered as an ecosystem impact. Catherine Clarke, the MOE witness on the Ministry’s SEV, stated that the potential impact of the increased truck traffic in the corridor could be addressed through the SEV’s reference to the ‘interrelations among the environment, the economy, and society." However Brian Kaye, acting Director when the OMYA PTTW was issued, and Victor Castro, the official who handled the OMYA application, insisted in testimony that only the permit’s impact on the aquatic ecosystem of the Tay River needs to be considered. In our view, this restricted perspective does not reflect the intent of the Ministry’s SEV or of Regulation 285/99. We urge that the tribunal take a broader view.

5d. Since MOE is one of several government bodies with responsibilities in north Lanark, we proposed that the tribunal endorse creation of a North Lanark Task Force that would include representatives of Ontario ministries, local agencies and governments, of OMYA and of citizens. Its mandate would be to address all the various issues in north Lanark connected to OMYA’s projected water-taking and associated expansion. We welcome the Chair’s interest in this kind of approach and hope it is included in her recommendations and in the conditions of any OMYA permit.

5e. A portion of County Road 511 along which OMYA’s trucks travel - the section between Highway 7 and Balderson - lies within the Tay River watershed. It is for this reason that we believe the issues referred to above are both an ecosystem and a watershed issue.

5f. With respect to the other north Lanark issues that were addressed in the hearings:
- We recommend that lakes and wetlands located near the Tatlock quarry, including Murray Lake, be monitored closely to ensure they are not adversely affected by the expansion of calcite production associated with the OMYA water-taking or by water containing calcium compounds being pumped from the quarry. - We recommend that means be developed to address local issues arising out of the OMYA water-taking and associated expansion - such as the noise and other impacts from its blasting and quarry operations. One such means would be the Task Force noted above.
6. Conservation and caution: Our second major concern is that neither OMYA nor MOE demonstrated during the hearings that they had shown proper regard for conservation and caution in arriving at the permit under appeal. The most notable examples relate to the volume of water-taking and the lack of any direct input from OMYA.
I: Volume of Water-taking not Justified: According to evidence at the hearing, OMYA required an average of 639,000 litres of water a day from its groundwater production wells at Glen Tay in the year 2000. MOE witnesses did not disagree with calculations put to them that if OMYA carries through its plan to raise calcite production at Tatlock to the four million tons per year allowed by its quarry permit, it would need something less than 1.8 million litres of water per day for its slurry production. This calculation was based on the current 50% ratio of slurry to total production of calcite products at OMYA’s Glen Tay plant, and the current 25 per cent ratio of water in its slurry, i.e. one ton water to every three tons of calcite. Since OMYA disclosed no other major use for water, we conclude that its proposal for a permit allowing 4.5 million litres of water-taking per day is more than double its requirements and cannot be justified.

II: No Opportunity to Secure Information from OMYA: When a PTTW is applied for, MOE officials would normally expect to meet with the applicant in order to confirm that the application was justified and secure any needed additional information. No such opportunity occurred during the present hearing because OMYA did not call any officials or consultants capable of providing information about the company’s application, needs or operations. The absence of these officials prevented appellants from cross-examining OMYA representatives on the company’s plans for water-taking or on the impacts of its proposals outside the Tay aquasystem. We believe that this information gap makes it extremely difficult for the Chair to make an informed decision on the permit being appealed.
7. Conditions: Finally, we wish to make four major proposals relating to the OMYA permit :
- Dates in the permit should be advanced by one year to acknowledge the passage of time since the original OMYA application.

- OMYA should be restricted to an annual average water-taking of 1,000 cubic metres per day in Phase I and 2,000 cubic metres per day if Phase II is allowed, in line with the principle of conservation and with OMYA’s actual needs. With this condition, no change is reuired in the maximum water-taking allowed by the permit on any particular day.

- Citizen participation in OMYA’s permitting should be ensured, preferably by making Phase II a separate permit subject to the Environmental Bill of Rights. Regular ongoing consultation between OMYA, citizens and local leaders should be guaranteed through the kinds of mechanism suggested by the Tribunal Chair.

- The permit’s conditions should be widened to ensure that all ecosystem and environmental impacts of OMYA’s water-taking and expansion are considered, not just those those involving the Tay River’s aquatic ecosystem.
8. Narrow focus: During these hearings we have sought to respect the spirit of the MOE’s Statement of Environmental Values in applying an ecosystem approach to a range of first and second-order issues related to OMYA’s water-taking proposal. However, the Ministry and OMYA have taken a very narrow approach. Our concerns go far beyond the intake site. We need to look to the future, Madam Chair, and we need your help in that task. The issues we have discussed through almost five weeks of hearings are vital for Lanark County, for Ontario, and for us all. We thank you for giving us the opportunity to participate so fully in this process.

Respectfully submitted

Michael and Maureen Cassidy

Ottawa and Tatlock, Ontario

Oct. 31, 2001