ERT Supplemental Witness Statement – Michael Bossio

April 13 | Posted by Jeff | Document Library



1. I am the Chair of the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”), which is the Appellant in these proceedings. My evidence is factual in nature. I have no personal, pecuniary or proprietary interest in the subject-matter of the appeal.

(a) Background: CCCTE Membership and Objectives

2. The membership and objectives of the CCCTE were summarized in my original witness statement which was served and filed in January 2013, and need not be repeated in this supplementary witness statement.

(b) Overview of Richmond Landfill Site: CCCTE Concerns

3. The chronology of the establishment, operation and closure of the Richmond Landfill Site was summarized in my original witness statement which was served and filed in January 2013, and need not be repeated in detail in this supplementary witness statement.

4. After approximately five decades of operation, the Richmond Landfill Site remains closed, and no more waste is being accepted for disposal at the site.

5. The area in the vicinity of the Richmond Landfill Site lacks a municipal water system, and local residents, farms and businesses remain dependent upon groundwater as a source of drinking water.

6. The largest and oldest section of the Richmond Landfill Site (i.e. Phase 1) is not underlain by a liner. Other sections of the landfill site have liners of varying vintages and composition. The Richmond Landfill Site contains a perimeter leachate collection system, but does not have an underdrain system beneath the site.

7. It is the CCCTE’s understanding, based on reports from its hydrogeologist and on numerous technical documents generated by Ministry of the Environment and Climate Change (“MOECC”) and by Waste Management of Canada Corporation (“WM”) that the location of the Richmond Landfill Site features thin overburden soils, fractured limestone bedrock, limited natural attenuation, and complex subsurface conditions, all of which make the underlying aquifer vulnerable to contamination.

8. The above-noted facts are of grave concern to the CCCTE because of the proximity of nearby domestic wells. These concerns have been compounded and vindicated by evidence demonstrating that leachate from the Richmond Landfill Site has moved off-site onto neighbouring properties and contaminated nearby private wells, as discussed below.

9. These hydrogeological considerations are described in further detail in the original witness statement and supplementary witness statement of Wilf Ruland, P.Geo., who has been retained by the CCCTE in these proceedings. Since I am not a professional geoscientist, I do not purport to offer any opinion evidence on hydrogeology, and I defer to Mr. Ruland’s expertise in such matters.

(c) Update: The Current Scope of CCCTE’s Appeal

10. In January 2012, the MOECC posted its Decision Notice on the Environmental Registry in relation to Amended Environmental Compliance Approval (“ECA”) No. A371203 for the Richmond Landfill Site.

11. Upon careful review of the Amended ECA, the CCCTE concluded that its various factual, technical and scientific concerns were not addressed adequately (or at all) by the MOECC Director. In light of these concerns, the CCCTE originally sought leave to appeal under the Environmental Bill of Rights (“EBR”) in relation to seven Conditions in the Amended ECA:

- Condition 8.5 (Monitoring Programs);
- Condition 9.1 (Groundwater and Surface Water Impact Contingency Plan);
- Condition 9.2 (Leachate Collection System Contingency Plan);
- Condition 9.5 (Public Notification Plan for Contingency Plans); and
- Conditions 14.1, 14.2 and 14.3 (Monitoring Reporting and Annual Reporting).

12. In March 2012, the Environmental Review Tribunal granted the CCCTE full leave to appeal the above-noted Conditions, and lifted the automatic stay of the Conditions under appeal.

13. The CCCTE’s Notice of Appeal was served and filed in April 2012, which set out the CCCTE’s various concerns and objections to the seven above-noted Conditions.

14. Subsequent to the commencement of this appeal, the CCCTE’s representatives worked with the other hearing parties to reach an agreement regarding a public notification plan, odour monitoring program, and various semi-annual and annual reporting requirements.

15. The parties’ agreement was presented to and accepted by the Tribunal at its preliminary hearing held in April 2013, and the MOECC Director subsequently revised the Amended ECA to incorporate the agreed upon Conditions and related documentation.

16. In light of these developments, the content of Conditions 9.5, 14.1, 14.2 and 14.3 is no longer at issue in this appeal. However, the CCCTE remains highly concerned about WM’s recent attempts to implement the mandatory requirements of the public notification plan, as discussed below.

17. Since April 2013, the CCCTE’s representatives have continued to work with other hearing parties respecting the remaining issues in dispute in relation to the EMP and contingency plans for surface water and groundwater protection. At the time of this writing, it appears that some progress has been made in relation to expanding and improving certain aspects of the EMP.

18. However, the CCCTE’s overall concerns about the inadequacy of the EMP and contingency plans (e.g. the proposed Contaminant Attenuation Zone) have not been fully resolved to date, and the CCCTE intends to pursue these issues at the appeal hearing.

(d) Recent Developments Relevant to CCCTE’s Appeal

19. Since my original witness statement was prepared in January 2013, there have been a number of developments which are highly relevant to the issues arising from the CCCTE’s appeal. These significant developments include:

- confirmation that leachate from the Richmond Landfill Site has moved – and continues to move – off-site onto adjoining private properties and into private water wells;

- confirmation that the leachate plume emanating from the Richmond Landfill Site contains 1,4-Dioxane, which has been detected in off-site water wells and test holes;

- the continuing inability of WM to clearly delineate the outer boundary of the leachate plume for the purposes of the proposed Contaminant Attenuation Zone (“CAZ”); and

- the dilatory and unacceptable manner in which WM has attempted to provide public notice about some of the above-noted developments.

20. Each of these developments is summarized in the following paragraphs.

(i) The Continuing Off-Site Movement of Leachate

21. During the leave-to-appeal stage of this proceeding, both WM and the MOECC vigorously insisted there was no evidence that any leachate had moved off-site from the Richmond Landfill Site.

22. However, as further fieldwork and groundwater investigations were conducted after leave to appeal was granted by the Tribunal, it was eventually acknowledged by WM and MOECC that leachate had, in fact, moved off-site through groundwater onto adjoining private properties and domestic wells.

23. This admission is reflected in the parties’ settlement agreement presented to the Tribunal in April 2013: “There is evidence that leachate is migrating off-site from the Landfill and causing groundwater impacts in excess of Reasonable Use limits under the MOE’s Guideline B-7, contrary to the ECA.”

24. Despite this important admission, the CCCTE remains concerned that there has been little or no sense of urgency demonstrated by either the WM or the MOECC in addressing the continuing leakage of landfill contaminants into the local environment.

25. The CCCTE is fully aware that it requires time to properly investigate groundwater contamination and to develop appropriate contingency measures, particularly in a fractured bedrock setting such as the Richmond Landfill Site.

26. However, it has been approximately three years since the CCCTE first obtained leave to appeal in this proceeding, and yet it appears that the instrument holder and the regulator are still struggling to pin down the precise geographic extent of the off-site leachate plume. In the meantime, there is a continuing lack of a finalized and effective EMP for the Richmond Landfill Site despite its known leakage of leachate into the local environment. In addition, WM’s CAZ application is also incomplete at the present time.

27. The inherent uncertainty and technical difficulty in tracking down the leachate plume in the vicinity of the Richmond Landfill Site leads the CCCTE to strongly advocate a careful and precautionary approach in monitoring, mitigation and contingency planning in this case.

(ii) The 1,4-Dioxane Issue

28. The CCCTE is particularly alarmed by the presence of 1,4-Dioxane that has been detected since January 2013 in water wells and test holes to the south of the Richmond Landfill Site.

29. Technical, scientific and regulatory issues relating to 1,4-Dioxane in the context of the Richmond Landfill Site are described in further detail in the supplementary witness statements of Mr. Ruland and Dr. Poh-Gek Forkert, both of whom have been retained by the CCCTE in these proceedings. Since I am not a toxicologist, I do not purport to offer any opinion evidence regarding 1,4-Dioxane or its potential human health risks, and I defer to Dr. Forkert’s expertise in such matters.

30. Based on information provided by Mr. Ruland and Dr. Forkert, it is the CCCTE’s understanding that 1,4-Dioxane has been identified as a likely carcinogen by other North American jurisdictions, which have established stringent drinking water standards for this substance.

31. Given that Ontario’s drinking water standards do not currently contain any numerical limits for 1,4-Dioxane, the CCCTE believes that it is imperative for the Tribunal to establish an appropriate site-specific water quality criterion for this substance at the Richmond Landfill Site, particularly for the purposes of calculating Reasonable Use Limits under MOECC Guideline B-7. In the CCCTE’s view, there is no public interest justification for any further delay in establishing such a criterion for the Richmond Landfill Site.

32. The CCCTE further believes that in accordance with the precautionary principle, WM should be required to proactively test domestic wells of farms and residences along Belleville Road (Highway 506 south of the landfill) in order to determine if 1,4-Dioxane is present.

33. It is my understanding that the MOECC’s first round of testing of these private wells did not detect the presence of 1,4-Dioxane in wellwater samples, which is good news for those well users. However, I am aware that certain wells within this area were not tested by the MOECC, and the CCCTE believes that further testing is required to ensure that these wells remain free of leachate contaminants, including 1,4-Dioxane, and to ensure that appropriate remedial action is undertaken if such contaminants are detected in these wells in the future.

34. In addition, since leachate contaminants have now been detected in certain domestic wells closest to the Richmond Landfill Site, and since these wells have been historically used by residents for drinking water purposes, the CCCTE believes that these residents (past and present) should be notified by WM about these contaminants and their potential health risks, even if these persons are no longer ingesting the well water.

35. The class of persons who should receive such notification from WM includes the family presently living at 1144 Beechwood Road. Based on my meetings and conversations with the landowner, it is my understanding that leachate contaminants (including 1,4-Dioxane) have been detected in his water supply well. These leachate contaminants (including 1,4-Dioxane) have also been detected in monitoring well M170 which WM drilled on this property.

(iii) The CAZ Application

36. Now that it is acknowledged that the leachate plume has moved off-site from the Richmond Landfill Site, the CCCTE believes that it is incumbent upon WM to quickly develop and implement an appropriate contingency plan to bring the site into compliance with the ECA and the Environmental Protection Act.

37. Rather than develop measures to contain the leachate plume at source, WM has proposed to establish a CAZ in which WM will attempt to restrict the use of groundwater upon private and public properties within the CAZ.

38. It is CCCTE ‘s understanding that due to the characteristics of this site, the only option that WM may have to address off-site leachate leakage is to buy the adjacent property (or water rights) within the CAZ, but otherwise allow the landfill source to continually discharge leachate and risk polluting the underlying aquifer. Nevertheless, the CCCTE is concerned about the CAZ concept in light of the fractured bedrock setting, the difficulty in groundwater monitoring at this location, and the continued leakage of leachate contaminants from the Richmond Landfill Site.

39. Moreover, it is my understanding that the outer boundary of the off-site leachate plume remains unknown or uncertain at the present time despite the efforts by WM and the scrutiny of the hearing parties. I further understand that WM is still conducting further fieldwork to delineate the plume boundary for the purposes of its CAZ application.

40. Based on this troubling track record, the CCCTE is concerned that the CAZ approach may be not be fully effective in determining the full extent of the leachate plume, or mitigating risks to the environment or public health and safety.

41. In its April 2013 procedural order, the Tribunal conditionally directed WM to provide public notification of its draft CAZ application and supporting documentation by August 30, 2013. However, WM determined that it was necessary to continue the CAZ-related fieldwork, and the Tribunal extended the date for disclosure of the draft CAZ application. In the result, the CCCTE did not receive the draft CAZ application or supporting documentation from WM until October 2013.

42. The CCCTE has not been able to find public notice of the CAZ application posted on the Environmental Registry. It appears that WM provided limited public notification to some nearby residents in a brief one-sentence reference to the CAZ contained in a “Manager’s Letter” circulated by WM in November 2013.

(iv) WM’s Deficient Public Notification

43. In light of test results confirming the off-site movement of leachate from the Richmond Landfill Site (including results from well M170 drilled by WM on adjoining private property), and in light of WM’s draft CAZ application, counsel for CCCTE wrote to WM in October 2013 to request the immediate issuance of public notice in accordance with the agreed upon public notification plan. No reply was received by the CCCTE (or its counsel) in relation to this request.

44. However, a short one-page “Manager’s Letter” dated November 2013 was subsequently distributed by WM to some neighbours of the Richmond Landfill Site, including some members of the CCCTE. It does not appear to the CCCTE that this letter satisfied the prescriptive requirements of the public notification plan.

45. In April 2014, the CCCTE requested the MOECC to investigate whether WM had failed to comply with the public notification requirements prescribed by Condition 9.5 of the Amended ECA.

46. The MOECC conducted the requested investigation, but ultimately determined, among other things, that the contamination event(s) in question had occurred prior to the effective date of the public notification plan under the Amended ECA.

47. In mid-January 2015, counsel for the CCCTE again wrote to WM to request immediate public notification regarding groundwater test results that found 1,4-Dioxane and Reasonable Use Limit exceedances for certain parameters. This letter was accompanied by a letter from Mr. Ruland confirming that these test results (e.g. well M170) were obtained in the fall of 2013 and spring of 2014, and therefore post-date the operative date of the public notification plan. However, the CCCTE (and its counsel) received no reply from WM (or MOECC) in relation to this request.

48. In late January 2015, however, I received a short written “notice” from WM staff regarding these test results. In my view, WM’s belated notice does not meet the timing, content or distribution requirements prescribed by the agreed upon public notification plan.

49. The CCCTE negotiated the public notification plan in good faith, and fully expected WM to comply with it (and the MOECC to enforce it) whenever the prescribed triggers are satisfied. The CCCTE’s recent (and unfortunate) experiences regarding public notification in this case have made it abundantly clear to the CCCTE that any further terms and conditions imposed by the Tribunal in relation to the outstanding issues in dispute must be crafted in an effective and enforceable manner in order to prevent or minimize future debates about compliance.

50. I agree to attend before the Environmental Review Tribunal to present the foregoing evidence.


(a) WM Manager’s Letter dated November 2013

(b) WM notice issued January 2015

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