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The End of Landfills in Ontario? Proposed amendments to the Environmental Assessment Act and the Impact on Waste Management

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Written by Harry Dahme and Jessica Boily, Gowlings WLG

On July 8, 2020, the Ontario government introduced Bill 197 in the Legislative Assembly. Entitled the COVID-19 Economic Recovery Act, the proposed changes within the Bill amend twenty different Acts, including the Environmental Assessment Act.

While some of the amendments proposed in Bill 197 seek to address challenges encountered during COVID-19 (such as the changes to the Provincial Offences Act, covered in our COVID-19 Update), the Bill primarily includes reforms that were on the government’s agenda prior to the COVID-19 pandemic. These reforms include some of the most significant reforms to Ontario’s environmental assessment regime in many years. The Gowling WLG Environmental Law Group will be publishing a series of articles on these proposed reforms, which are expected to be fast-tracked through the Legislature this week.

From the point of view of waste management in Ontario, one of the most significant changes to be made by the Bill is the addition of a new section to the Environmental Assessment Act that would give municipalities the right to veto new landfills proposed to be located within their own borders or in adjacent municipalities where the proposed new landfill is within 3.5 kilometers of the municipal border. This amendment to the EAA would provide municipalities with the unprecedented ability to stop new landfills for any reason, even where the environmental assessment for that landfill would otherwise be satisfactory to the provincial government.

Demand the right coalition emerges

In 2018, Ingersoll Mayor, Ted Comiskey, started the “Demand the Right” Coalition of Ontario Municipalities, seeking support from other municipalities for legislation that would allow municipalities to say no to projects like windfarms and landfills.

On March 1, 2018, Ernie Hardeman, MPP for Oxford, the riding that includes Ingersoll, introduced a private members bill dealing with the issue. Bill 201Respecting Municipal Authority over Landfilling Sites Act, 2018, would have amended the EAA to prevent the Minister of the Environment, Conservation and Parks from giving approval to an undertaking unless the municipal council had passed a resolution supporting the establishment of the landfilling site. The Bill did not receive Second Reading in the Legislature and died on the Order Paper when the Legislature was dissolved for the last provincial election.

During that election in 2018, Doug Ford stated that he respected “the right for local municipalities to make the decisions best for their communities.”

Following the election in 2018, the Ministry of the Environment, Conservation and Parks (“MECP”) released the Made-in-Ontario Environment Plan, which stated it intended to provide “municipalities and communities they represent with a say in landfill siting approvals “. No firm commitment to a veto was made at that time and there were no consultations on the proposed amendments to the EAA affecting landfills prior to the introduction of Bill 197.

The state of landfill capacity in Ontario

Many Ontarians are not aware of the waste disposal crisis in which Ontario finds itself. The Ontario Waste Management Association reports that unless new landfills are built, Ontario’s landfill capacity will be exhausted by 2032. More than 80% of this capacity is located within a small number of sites (15 public and private landfills). These predictions assume that Ontario will continue to export approximately 30% of its waste to the United States, primarily to landfill sites in Michigan and New York. Should those exports stop, Ontario’s landfill capacity would be exhausted by 2028: only eight years from now. This is significant since it takes years, and sometimes more than a decade, to obtain approval for a new landfilling site.

Even before the introduction of Bill 197, the length and uncertainty of the environmental assessment process for new landfills and expansions to existing landfills meant that this crisis was not improving. While increased waste diversion is a laudable goal, even with significantly improved waste diversion rates, existing landfill capacity will be put under significant pressure in the next ten years.

Bill 197

Given the near future waste disposal crisis in the province, there is a demonstrated need for new landfills to be built and existing landfills to be expanded. While Bill 197 aims to streamline existing environmental assessment processes for some projects, it introduces a municipal veto over new landfills that is expected to almost entirely halt the planning for and building of new landfills in Ontario.

Section 10 of Schedule 6 to Bill 197 proposes to amend the EAA by adding a new section 6.01, which would provide that proponents who wish to establish a landfilling site that is subject to Part II of the EAA obtain “municipal support” for the undertaking. Municipal support must be obtained, not only from the local municipality in which the landfilling site is situated, but from any other municipality located within a 3.5 km distance from the property boundary of the proposed landfilling site. This support, as set out in s. 6.01(5), is demonstrated by providing a copy of a municipal council resolution from each of the municipalities, indicating that the municipality supports the undertaking.

This requirement applies to not only new future landfill proposals but also to landfills currently undergoing the environmental assessment process, even though EAA approval had been previously obtained for the Terms of Reference for that environmental assessment process and even though the environmental assessment process was proceeding in compliance with the approved Terms of Reference.

Proposed section 6.01 applies only to landfills, as opposed to all types of waste management facilities based on the definition of “landfilling site” which is defined as a waste disposal site where landfilling occurs.

While section 6.01 certainly applies to new landfills within the province, it could also potentially  be read to apply to expansions of existing large landfills as well. Section 6.01(3) states that the section applies “in respect of a proponent who wishes to proceed with an undertaking to establish a waste disposal site that, (a) is a landfilling site; and (b) is subject to this Part.” While the plain meaning of “establish”, which connotes the initial or first approval and construction of a project, is consistent with the meaning used within the Environmental Protection Act in the context of waste disposal sites, “establish” is not defined within the EAA itself. This leads to the possibility that the unique characteristics of any landfill expansion could lead to an interpretation that the expansion involves the establishment of a waste disposal site. If that interpretation is adopted, then that has huge ramifications with respect to the future availability of landfill capacity in Ontario, exacerbating even more the imminent waste disposal crisis in Ontario.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

 

About the Authors

Harry Dahme is a partner in Gowling WLG’s Toronto office and past leader of the firm’s Environmental Law Group. He has practised exclusively in the area of environmental law since 1984, and has a solid reputation as one of the foremost environmental lawyers in Canada. Harry is certified by the Law Society of Ontario as a specialist in environmental law, and is described by Who’s Who Legal: Canada 2014 as “widely regarded as a leading authority in the field,” by Legal 500 Canada 2017 as “absolutely fantastic” and by Acritas Stars 2017 as “an acknowledged expert in environmental law.”
Jessica Boily is an environmental lawyer in Gowling WLG’s Toronto office. Her practice focuses on environmental litigation, drawing on her commercial litigation background to achieve successful and cost-effective outcomes. She uses her procedural expertise and technical knowledge to advocate for her clients. Jessica understands that complex disputes require creative scientific and legal approaches. Her clients appreciate her practical advice when managing and resolving multi-party environmental disputes. When litigation is necessary, her clients know her courtroom and tribunal experience will help them achieve the outcome they want.

Universal Truths: Is Landfilling always a bad thing?

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Written by Calvin Lakhan, Ph.D, Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

It’s not every day that an article about garbage is inspired by the philosophical works of Immanuel Kant. While I wish I could tell you that I am a philosophy scholar in my spare time who makes a regular habit of contemplating topics such as moral relativism and deontology, the truth is, I decided to Google a quote I read on an Instagram meme.

With that being said, I am glad I did, because it got me thinking about whether environmentalism, and by proxy, waste, has a set of universal truths that we could all agree upon. To be honest, not many readily come to mind – even for something as insidious as anthropogenic climate change, there are still a significant number of people who either downplay its impacts, or don’t believe in at all. However, one topic my mind kept on going back to was landfilling – When it comes to managing waste, is landfilling is always a “bad” thing?

Intuitively, this seems to make sense – the waste management hierarchy characterizes landfilling as an absolute last resort for managing waste, and many of my earliest memories of environmental issues revolved around the landfilling problem “We are throwing too much stuff away, and we are running out of places to put it”. Even our policies seem centered around keeping waste out of landfills, with system performance being measured in terms of “tonnes recycled and waste diverted”. Jurisdictions across the world are now championing the zero waste mantra, looking to maximize both the economic and environmental impacts of materials by keeping it out of the landfill.

With the above in mind, have we found the illusive universal truth for waste? Can we reach consensus that our goal should be keeping materials out of landfills, and that landfilling as a waste management strategy, is bad? Much like most other waste issues, the answer isn’t as black and white as it may first appear, and landfilling may not be as bad as you think (depending on how you choose to look at the problem).

Before delving into that discussion, let’s briefly remind ourselves about why landfilling is generally seen as bad:

1) There is a paucity of available landfill space – based on existing depletion rates, it’s estimated that Ontario will run out of landfill capacity within the next 15 years (with some even predicting less than 10)

2) If we consider waste a resource, landfilling fails to capture the full economic value of that material, as we do not exhaust all other potential use values prior to disposal.

3) The environmental impacts of sending a material to a landfill aren’t fully quantified or understood. Landfills are sometimes seen as a source of contamination for when waste enters both terrestrial and aquatic environments. Poorly designed landfills also pose acute risks with respect to leachate contamination, which could compromise soil and water health.

4) Landfilling sends the wrong message to the public – as noted above, the bulk of our environmental programming for the past 30 years has centered on recycling and reducing the amount of waste we send to landfills. Landfilling indirectly incents and rationalizes unnecessary waste generation.

5) One of the goals of a waste management system should be to prioritize other end of life applications, such as waste reduction, reuse and recycling. Landfilling runs the risk of undermining the benefits and importance of the 3Rs.

If the above statements are true, how on earth could landfilling not always be the worst option? The answer (as it often is), is tied to how we choose to define the goals of a system and measure success. If we measure success exclusively in terms of diversion rates, then yes, landfilling is probably always going to be a bad thing. However, if we take a step back and look what makes a waste management system sustainable, we must consider economic and social factors as well. The decision to reduce, reuse, recycle, incinerate or dispose of a material does not exist in isolation. There is always an “opportunity cost” to any decisions we make, and the decision to landfill or not to landfill a material must be evaluated relative to other options that we may have available.

The Cling Wrap Case Study

To better illustrate this point, let’s consider cling wrap, a plastic film made from LLDPE that is most commonly used by households to wrap and store food. If you were to ask most waste management operators, they would tell you that cling wrap is bad for the environment and extraordinarily problematic to manage – it’s difficult to screen and sort plastic film at a material recycling facility, and even when that is possible, there are virtually no end markets for the material. When it is recycled, it costs in excess of $2000 a tonne and that material is almost inevitably downcycled into a good that is still destined for landfill. In this scenario, our desire to keep cling wrap out of landfills via recycling results in an a massive bill – if 5000T of cling wrap are collected every year, and we attempt to recycle that material to avoid landfilling, it would cost approximately $10 million dollars to do so. To provide context, 5000T would represent less than half of a percent of all Blue Box materials recycled in Ontario, while the $10 million dollars would make up almost 4% of all costs. In this scenario, we are allocating an inordinate amount of resources to a material that for intents and purposes doesn’t net much in terms of environmental benefits.

The latter point is something worth highlighting, as not only does cling wrap have negligible environmental benefits in the event you are able to recycle it, but even if it does end up in a landfill, both acute and indirect harm to the environment from landfilling is negligible. For all intents and purposes, cling wrap is a relatively innocuous product that represents a tiny fraction of all material sent to a landfill (a drop in the bucket of overall capacity). It is inert and will not break down into the surrounding environment in any meaningful time frame (unless exposed to a catalyst of some type). Beyond the negative optics of discarding cling wrap in landfills, there is negligible measured harm.

While some may point to these issues as a reason for why we need to abandon cling wrap all together, it is important that we don’t myopically focus on an end of life problem, and consider the product’s entire life cycle when evaluating its environmental impact. As noted in the very first sentence of this section, cling wrap is most commonly used as a form of food storage.

In a 2019 study conducted by York University examining the life cycle impacts of various food storage products, the use of cling wrap by households was able to achieve both avoided food waste (less edible material being discarded) and food source reduction (reducing the need to go out and buy more food).

The carbon savings attributable to this change in consumption and storage habits for food resulted in a net carbon savings exceeding 10 T/CO2e for every 1 tonne of product manufactured. This modeling also assumed a worst case scenario, and assumed that cling wrap (and packaging) was comprised of 100% virgin materials, and that all materials would be landfilled at end of life. The recyclability (or lack thereof) of cling wrap had no bearing on the environmental benefits resulting from avoided food waste, even if every tonne of cling wrap was sent to landfill.

In short, cling wrap, a product that is often characterized as being environmentally harmful due to low levels of recyclability, abates more carbon than the average Blue Box material. Once again, when we take a step back and look at the life cycle of the products that we use, in addition to the economic costs of our various end of life options, the decision to recycle or landfill becomes less clear.

No such thing as a universal truth (in waste)

While I would like to think that there is at least one issue that we can all agree on, the complexity and nuances of a topic such as landfilling makes it all but impossible to achieve consensus. At first glance, landfilling does indeed seem like a very bad thing that should be avoided. When evaluating that statement in isolation, that is probably true. However, the moment we begin to think outside of the narrow scope of recycling/diversion rates and begin to include variables such as cost, capacity, available technology, perceived environmental harm, measured environmental harm, life cycle impacts, economic and environmental risks by disposal method etc., our answer may change. In fact, depending on who is asking the question and how they choose to weight certain factors, two people may have very different “truths” – neither one being right, or wrong.

From a personal perspective, when I think about the landfilling problem, my mind keeps on returning to the concept of opportunity cost. For every dollar I spend to keep something out of a landfill, that is one less dollar that I have to spend on something else. The flip side of that is that for every one tonne of material that I send to a landfill, means one tonne less tonne to store future waste. Does it make sense to spend thousands of dollars a tonne to ensure that materials such as composite and light-weight plastics are recycled instead of landfilled? From my perspective, no. The decision to spend millions of dollars on keeping a material out of landfill can only be rationalized if: a) the environmental benefit from recycling/diverting is significant b) the material poses an acute risk to the environment, and must be managed in a controlled way, and c) there is no remaining landfill/disposal capacity, necessitating that the material be diverted.

With that being said, I still think that we tend to lose sight of what we should be trying to achieve in the pursuit of aspirational goals such as zero waste and circularity. Our interpretation of those goals can be quite literal at times, with people ardently saying that landfilling has no place in a circular economy or zero waste future. But circularity and zero waste are subset of broader sustainability objectives – prohibiting disposal of materials in a landfill only makes sense if it is satisfying environmental, economic and social goals.

Can landfilling be bad? Absolutely. Can landfilling make sense given certain conditions? Of course. The most important thing is that we don’t treat all materials and circumstances the same way, incorporating life cycle thinking that can better inform whether we should landfill or divert a material. What to do with a material at end of life doesn’t start when you throw it in the garbage – it starts from the moment that a product is made.

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About the Author

Calvin Lakhan, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior.