OMYA wants to take 500% more water
Province asked to OK consumption of 4,500 cubic metres daily
The Ottawa Citizen
Wednesday, December 04, 2002
Intense lobbying by Perth-based OMYA (Canada) Inc. appears to have left the company poised to increase its industrial water consumption by 500 per cent, and to eclipse the limits set by a recent environmental tribunal.
If it gets the green light from Ontario Environment Minister Chris Stockwell, OMYA will soon be allowed to pump 4,500 cubic metres of water a day from the Tay River. The proposed intake amount is equal to that used by all 6,000 residents, businesses and civic facilities in Perth.
Breaking with judicial protocol, Mr. Stockwell recently agreed to consider approving OMYA's increased water bid, while an earlier ruling on the case is under an Ontario Superior Court of Justice appeal.
That followed a flurry of letters from OMYA to Ontario cabinet members.
Any attempt to use political pressure to trump a tribunal verdict would set a dangerous precedent, says professor Stepan Wood of Toronto's Osgoode Hall Law School.
"These kinds of appeals to the minister should be allowed only very, very rarely -- with great reluctance by the government," said Mr. Wood, who has reviewed the OMYA case. "It should occur only when it is clear that a tribunal has gone right off the rails. But this is a case where the process has worked quite well."
OMYA currently withdraws 872 cubic metres of water a day from wells adjacent to its plant, which produces a liquefied calcium carbonate slurry for export by rail car. It had applied to remove up to 4,500 cubic metres a day (almost one million gallons) from the Tay River for potential production increases, but strong objections from a Perth-area citizens group led to a tribunal hearing.
Unlike the town of Perth, OMYA does not withdraw, filter and then return the water to the eco-system for use by downstream residents and farms. Its liquid slurry production process permanently removes the water from the watershed. This became a key environmental issue for the tribunal.
After 35 days of evidence, including reports from many expert scientific witnesses, the tribunal ruled that OMYA's water withdrawal limit be capped at 1,483 cubic metres a day, and increased only if stringent conditions were met. These terms were assented to by Environment Ministry officials.
That ruling allowed OMYA to double its water consumption, and increase plant production. Yet before and just after the tribunal verdict, OMYA spearheaded a political campaign to get much more. One ally has been Norm Sterling, the Lanark-Carleton MPP and a cabinet minister in the Ernie Eves government.
In February 2000, Mr. Sterling wrote to Health Minister Tony Clement.
"Your assistance in responding to (OMYA vice-president Olivier) Chatillon's concerns about a timely evaluation of this application would be most appreciated," wrote Mr. Sterling.
Soon after, Mr. Chatillon wrote directly to other Ontario cabinet ministers, saying: "I ask for your support in getting our application approved on its technical merit and not rejected due to a public outcry."
That March 2000 letter did not provide any details about how much water OMYA was applying for, but could easily have led the cabinet ministers to conclude that OMYA faced the prospect of having no water at all.
"People must realize that water is required to run any business and to not have water means very serious consequences to this plant, up to and including closure of the operation," Mr. Chatillon warned. "This would place hundreds of people directly from OMYA out of work, not to mention the hundreds of spin-off jobs in the communities surrounding the plant."
Yet three weeks after the February 2002 tribunal ruling that allowed OMYA to double future water consumption, Mr. Chatillon sent a letter objecting to that verdict to the premier and seven Ontario cabinet ministers.
"Due to the extremely unfortunate Environmental Review Tribunal ruling, we find ourselves uncertain about the climate for investments such as ours here in Ontario," Mr. Chatillon wrote on behalf of OMYA. "We have found ourselves trapped within an appeal process which has turned out to be as unpredictable as it was unfounded in either law or science."
The Chatillon letter itself contained a glaring mistake. It asked cabinet ministers to endorse an OMYA "application for a permit to take 4,500 cubic metres of water per minute, the amount we have estimated we require to operate our business properly and the sustainability of which is supported by all the available scientific data." In fact, OMYA had applied to remove 4,500 cubic metres from the Tay River per day, not per minute.
"In conclusion," Mr. Chat-illon wrote in his March 8 letter to the Ontario cabinet members, "the question to which we would appreciate an answer is the following: Is it the intent of the Ontario government to allow the tribunal ruling to stand? We are facing some very weighty decisions. And, of course, time is of the essence."
Mr. Chatillon and Mr. Sterling did not respond to Citizen interview requests.
With a legal deadline pending, OMYA filed a formal Superior Court appeal challenging the tribunal verdict. It named the Ontario minister of environment and several members of the Perth citizen's group "Friends of the Tay River" as defendants.
OMYA also filed a separate request to the Ontario environment minister, asking him to immediately approve a five-fold increase in water withdrawals -- even though the issue was under appeal and Mr. Stockwell was named as a defendant in the case. With rare exceptions, cabinet ministers wait for court appeal outcomes before making their own judgments or decisions. Yet Mr. Stockwell publicly agreed to consider OMYA's request.
Ontario's environmental laws allow for special appeals to the minister which can effectively side-step tribunals and appeal courts.
"That's almost always a bad idea," says law professor Mr. Wood. "It subverts an existing, orderly, and predictable process. It discounts the impartial, professional expertise of the tribunals. It cloaks the decision in cabinet secrecy. And it unfairly advantages those with political connections and the money to lobby."
"The bottom line is: If the minister grants OMYA all the water it wants, for all practical purposes that would shut down the (current) appeal."
Last week, lawyers representing "Friends of the Tay" were alarmed to find that Ministry of Environment staff (their co-defendants in the OMYA appeal) had reversed their tribunal testimony and were now agreed that OMYA was justified in immediately obtaining a permit to increase water withdrawals by 500 per cent.
If granted, that would precede a watershed audit and management plan, as recommended at the tribunal by environment ministry senior staff and the Ontario environment commissioner, Gordon Miller.
OMYA has also recently upped the financial stakes by formally requesting that if the company wins its court appeal of the tribunal ruling (and permission to increase its industrial water consump-tion to 4,500 cubic metres per day), the related legal costs would be born by the Environment Ministry and the individual Perth citizens named in that legal action.
"We are worn out, exhausted, and raising legal fee money from cookie sales," says Carol Dillon, a retired school teacher who has been the organizational sparkplug of the Perth citizens group. "What this would do is erase all the public input that went into this three-year process."
"Maybe we were naive, but we thought those 35 days of (tribunal) hearings were democracy in action. Now the ministry of environment appears to be going back to the old, pre-Walkerton way of thinking: There's unlimited water everywhere, watershed planning is pointless, and citizens should stay home, keep quiet, and let someone else decide how our water is managed."
"By appealing to the environment minister, OMYA and its political allies could have the tribunal decision erased at the stroke of a pen," says Ramani Nadaraja, a lawyer for the Canadian Environmental Law Association. "This is quite legal, but it's a provision that should be scrapped."