OUTLINE OF EVIDENCE

(a) Introduction

1. I am a member of the Concerned Citizens Committee of Tyendinaga and Environs (“CCCTE”), and currently serve on the CCCTE’s Technical Sub-Committee. As a resident of the Town of Greater Napanee, I have no personal, pecuniary or proprietary interest in the subject-matter of the appeal filed by the CCCTE. My evidence will be of a factual nature.

2. On behalf of the CCCTE, I have attended many public and proponent meetings, corresponded with numerous public officials, and reviewed countless documents prepared by the proponent, the Ministry of the Environment (“MOE”), and other persons and agencies in relation to the Richmond Landfill Site over the past decade. I have also used provincial freedom-of-information (“FOI”) legislation in relation to the Richmond Landfill Site.

(b) CCCTE Involvement in the ECA Amendments

3. I have reviewed, and hereby adopt as my own evidence, the general chronology of key events outlined in the witness statement of Michael Bossio filed on behalf of the CCCTE in these proceedings. My additional evidence about my involvement in the MOE’s development of the conditions under appeal is summarized below.

4. After the MOE announced in April 2010 that the Richmond Landfill Site would be closed in few months’ time, I and other CCCTE representatives wrote to the MOE to express support for this long overdue closure (see letter from Ian Munro to Doris Dumais dated August 17, 2010). At the same time, I and other CCCTE representatives raised numerous concerns about the inadequacy of the Environmental Monitoring Plan (“EMP”), contingency plans, public notification proposals, and other closure-related documents filed with the MOE by Waste Management Corporation of Canada (“WM”) in June 2010.

5. One of the WM documents filed with the MOE in June 2010 apparently included contaminating lifespan calculations and corresponding financial assurance figures. However, these items were blacked out in the copy made available to the public for review and comment. On behalf of the CCCTE, I filed an FOI request to obtain the missing information, and WM objected to the release of the information. Months later, after considerable effort and delay, the CCCTE eventually obtained access to the missing information. It is the view of the CCCTE that access to information about crucial landfill-related matters should not have to depend upon the filing of time-consuming FOI requests or FOI appeals.

6. While the various WM documents filed in June 2010 were being considered by public and agency reviewers, I and other CCCTE representatives emailed, telephoned and met personally with various MOE officials, including the Director of the EA and Approvals Branch. At this time, the MOE expressly committed to providing the CCCTE with an opportunity to review and comment upon any draft amendments to the landfill’s certificate of approval that the MOE may propose in relation to the matters addressed by the WM documents (see letter to CELA from Doris Dumais dated September 8, 2010).

7. Unfortunately, this key commitment was not fulfilled, as the first time that the CCCTE saw the conditions now under appeal was when the MOE Director posted his final Decision Notice in January 2012 in relation to Amended Environmental Compliance Approval (“ECA”) No. A371203.

8. Just before the above-noted EBR Registry notice was posted, I and other CCCTE representatives attended a January 2012 meeting with MOE officials in the Ministry’s regional office in Kingston (see minutes of a meeting on the Richmond Landfill EMP on January 3, 2012). At no time were we advised that amendments to the ECA were imminent; to the contrary, the MOE officials indicated that more groundwater investigation work was underway at the landfill site, and that the EMP would not be approved until after the submission of WM’s further analytical report.

9. However, days after this meeting, Condition 8.5 was imposed in the Amended ECA and conditionally approved the EMP (Item 45 in Amended ECA Schedule A), subject to a further requirement upon WM to file an addendum report to the EMP. The CCCTE’s procedural and substantive concerns about Condition 8.5 and the EMP are outlined in the witness statements of Michael Bossio, Wilf Ruland, Steve Thorndyke, and Dr. Poh Gek Forkert filed on behalf of the CCCTE in these proceedings.

10. After the MOE Director’s Decision Notice was EBR-posted, and when the 15 day leave-to-appeal period was running, I contacted the MOE’s Approvals Branch on behalf of the CCCTE in order to request copies of the relevant new documents referenced in Schedule A of the Amended ECA. I was advised by an MOE official that the documents could not be provided to me, and that I would have to file an FOI request in order to obtain access to these documents. I then contacted the Kingston office of the MOE, and spoke with Mr. Dave Arnott about my documentary request. The CCCTE eventually received copies of the requested documents, but only after the 15 day leave-to-appeal period had expired. It is the CCCTE’s view that it should not be necessary to pursue a statutory appeal in order to obtain timely access to landfill-related monitoring data, plans, reports or other documentation.
(c) Overview of CCCTE Concerns regarding Public Notification

11. The CCCTE is concerned that residents living beside or near the Richmond Landfill Site, the CCCTE, and members of the public at large have not been receiving full and timely notice of on-site occurrences, activities or conditions that may cause adverse effects to the environment or nearby residents. The CCCTE believes that such notification is warranted to ensure that potentially affected persons can take measures to protect themselves if necessary, and to ensure greater transparency and accountability where off-site impacts occur, or where environmental risks are created, as a result of the Richmond Landfill Site.

12. Before the Richmond Landfill Site was closed in 2011, there were significant on-site incidents or other key developments where, to my knowledge, no formal or timely public notice was provided directly by WM to all site neighbours, local communities or the public at large. Recent examples include the following:

- in November 2010, the MOE recommended that WM should provide whole house water to certain residences south of the landfill due to potential off-site groundwater impacts emanating from the Richmond Landfill Site. Even if the individual occupants of these dwellings subsequently received some sort of notice or information from WM, the CCCTE did not learn of this important development until our above-noted meeting with MOE officials in January 2012. Similarly, to my knowledge, WM did not disclose this development to other site neighbours or local communities;

- there have been various operational incidents which have been largely unreported by WM in relation to the stormwater management pond facility located upon the Richmond Landfill Site. These incidents include: sudden and unexpected release of impounded water over neighbouring properties during spring runoff; failure to close the outlet valve after an approved release, which caused the unauthorized continuous discharge of impounded water for about one month into the Beechwood Ditch; and the issuance of a Provincial Officer’s Order (and accompanying Provincial Offences Notice) regarding the outlet valve incident. To my knowledge, WM did not provide timely notice of such pond-related incidents to site neighbours, downstream riparian owners, the CCCTE, local communities or the public at large.
13. After the Richmond Landfill Site was closed in 2011, there have been significant on-site incidents or other developments where, to my knowledge, no formal or timely public notice was provided directly by WM to site neighbours, local communities or the public at large. These examples include the following:

- the witness statement of Doug Cranston filed on behalf of the CCCTE in these proceedings states that there have been post-closure odour incidents caused by on-site remedial activities at the Richmond Landfill Site for which no advance notice was provided by WM;
- WM’s Environmental Action Plan report states that there are some monitoring wells to the south and northwest of the landfill footprint that have been impacted by leachate contaminants. However, this important information, to my knowledge, has not been provided by WM to all site neighbours or local communities;

- the MOE hydrogeologist’s response to WM’s Environmental Action Plan states that the landfill has impacted groundwater at and beyond the southern property boundary in excess of Reasonable Use limits. However, this important information, to my knowledge, has not been provided by the MOE to all site neighbours or local communities;

- WM has recently proposed the establishment of a Contaminant Attenuation Zone on private lands south of the Richmond Landfill Site. However, this important information has not, to my knowledge, been provided by WM to all site neighbours or local communities.

14. I have reviewed WM’s website (http://brec-currentops.wm.com/aboutus/reports .jsp). While this site contains some of WM’s operational documents, there is very little information about the above-noted incidents, and the documents listed on the website appear to be selective, incomplete and, in some instances, staledated. Moreover, the CCCTE is concerned that placing documents on a static website, and hoping that site neighbours eventually find them, assumes that all local residents have computers, internet access, and web-searching skills. This is a problematic assumption since I know a number of site neighbours and CCCTE members who do not have or use computers. Accordingly, the CCCTE believes that the mere existence of the WM website does not negate the need for enforceable procedures in the Amended ECA which ensure that WM provides proper and timely notice to all persons interested in, or potentially affected by, activities, events or conditions at the Richmond Landfill Site.

15. I am aware that WM has occasionally mailed out (or web-posted) “Manager’s Letters” to some neighbouring residents, but these letters have tended to come out after-the-fact (i.e. after events have already occurred and/or after local media stories have been published about the Richmond Landfill Site). It is the CCCTE’s view that wherever possible, advance or upfront notification should be provided by WM to site neighbours when planned or ongoing on-site activities (i.e. repair of leachate breakouts, shut-down/maintenance of the landfill gas flare, etc.) may cause off-site adverse effects to the environment or to neighbouring residents.

16. I am aware that there is a Public Liaison Committee (“PLC”) established under Condition 10 of Amended ECA No. A371203 in relation to the Richmond Landfill Site. This Condition is not under appeal in these proceedings. Moreover, the CCCTE is not a member of the PLC, and the CCCTE has had long-standing concerns about the mandate, independence and composition of the PLC. In any event, it is the CCCTE’s view that the establishment of the PLC does not dispense with the need for an effective and comprehensive public notification plan for the Richmond Landfill Site.
17. In summary, while working on various landfill issues on behalf of the CCCTE over the past decade, I have encountered considerable delay and difficulty in obtaining timely access to data and documentation regarding the current operation, management and impacts of the Richmond Landfill Site. It is the CCCTE’s view that the local community has a fundamental right to know about the full range of environmental impacts and risks posed by the Richmond Landfill Site.

(d) Current Status of CCCTE Concerns regarding Public Notification

18. Condition 9.5 of ECA No. A371203 gave WM 12 months to submit a public notification plan that requires the provision of notice to certain persons when the proponent “will be initiating contingency plans as approved by the ECA.” As drafted, this Condition is unsatisfactory to the CCCTE and was appealed for various reasons, including:

- the timeframe for submission is too long, as a public notification plan should have been put in place already;

- the list of persons entitled to notice is too narrow, and excludes the CCCTE;

- the trigger for public notification should not be restricted to contingency plan implementation, but should include other significant operational incidents, upset conditions or other circumstances which may cause off-site adverse effects to the environment or site neighbours; and

- the Condition contains no express or implied requirements for public review/comment opportunities once WM has submitted its public notification plan to the MOE Director for approval.

19. Since the operation of Condition 9.5 has not been stayed in these proceedings, WM was obliged to submit its plan to the MOE within 12 months after issuance of the Amended ECA (i.e. by January 9, 2013). To my knowledge, a finalized plan has not been submitted by WM to MOE to date. However, WM has recently circulated a draft public notification plan, which is currently being reviewed by the CCCTE.

20. After the CCCTE filed its appeal, the parties entered into discussions regarding the appropriate form, content and scope of an appropriate public notification plan for the Richmond Landfill Site. These discussions are ongoing, and it appears that it may possible to potentially resolve some of the CCCTE’s concerns about public notification. In particular, there appears to be agreement on the general principles which should be reflected in the public notification plan, although there are a number of implementation matters which may require further review and/or revision prior to the finalization of the public notification plan.

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

OUTLINE OF EVIDENCE

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.

LIST OF REFERENCES

(a) WM Manager’s Letter dated November 2013

(b) WM notice issued January 2015

OUTLINE OF EVIDENCE

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 CCCTE (formerly known as Stop Richmond Dump Expansion: The Citizens Committee) is a non-profit organization which is incorporated under the laws of Ontario (Ontario Corporation Number 1422188).

3. The CCCTE membership includes persons living in the Township of Tyendinaga, the Town of Greater Napanee, the Town of Deseronto, and other local communities, and includes long-term residents living beside or near the Richmond Landfill Site.

4. The overall objectives of the CCCTE are to ensure that:

- the Richmond Landfill Site remains permanently closed, and is not expanded or re-opened for waste disposal purposes; and

- the environmental risks and impacts of the closed Richmond Landfill Site are carefully monitored, publicly reported, and effectively mitigated over its entire contaminating lifespan.

5. To achieve these objectives, the CCCTE has been actively engaged over the years in various administrative and legal proceedings involving the Richmond Landfill Site, including this appeal. In particular, I and other CCCTE members have attended public meetings, retained counsel and experts, corresponded with public officials, and reviewed countless documents prepared by the proponent, the Ministry of the Environment (“MOE”), and other persons and agencies in relation to the Richmond Landfill Site.

(b) Overview of Richmond Landfill Site

6. The Richmond Landfill Site is located at Part of Lots 1, 2 and 3, Concession 4, in the Town of Greater Napanee, in the County of Lennox and Addington (see Amended Environmental Compliance Approval No. A371203 dated January 9, 2012).

7. The Richmond Landfill Site is located approximately 1 kilometre north of Highway 401, and is northeast of the intersection of County Road 10 and Beechwood Road. This rural area is not serviced by a municipal water system, and local residents, farms and businesses are generally dependent upon groundwater as a source of drinking water.

8. The Richmond Landfill Site was originally established by a private operator in the 1950s. Since that time, the landfill site has been owned and operated by various private companies. The current owner/operator of the Richmond Landfill Site is Waste Management Corporation of Canada (“WM”).

9. It is the CCCTE’s understanding, based on MOE records and proponent reports, that millions of tonnes of waste have been buried at the Richmond Landfill Site over the past 50 years.

10. 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.

11. The Richmond Landfill Site contains a perimeter leachate collection system, but does not have an underdrain system beneath the site.

12. The above-noted facts are of grave concern to the CCCTE because of the sensitive and complex hydrogeological setting of the Richmond Landfill Site. It is the CCCTE’s understanding, based on reports from its hydrogeologist and on numerous technical documents generated by MOE, WM and other entities, 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.

13. These hydrogeological considerations are described in further detail in the witness statement of Wilf Ruland, P.Geo., which has been filed on behalf of 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.

14. There are two surface watercourses which flow through the Richmond Landfill Site and then enter upon private property immediately downstream:

- Marysville Creek, which is located immediately north of the waste mound and flows southwesterly through three jurisdictions (Town of Greater Napanee, Township of Tyendinaga, and Tyendinaga Mohawk Territory), and ultimately discharges into the Bay of Quinte, Lake Ontario; and

- Beechwood Ditch, which is located south of the landfill site, drains the southern portion of the site and other nearby agricultural lands, and ultimately discharges into Marysville Creek several kilometers downstream of the landfill site.

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

(c) Chronology of Key Events Leading up to this Appeal

16. From 1954 to the early 1970s, the landfill site was unlicenced and primarily served local residents. In the 1970s, the owners received a series of Provisional Certificates of Approval under the Environmental Protection Act (“EPA”) which allowed the disposal of domestic, commercial and non-hazardous solid industrial waste from a number of local municipalities.

17. In 1987, Provisional Certificate of Approval No. A371203 was originally issued by the MOE Director to Sutcliffe Sanitation Services to permit the expansion of the Richmond Landfill Site, and to increase the service area to include all of Ontario. In summary, this Provisional Certificate of Approval:

- approved a 16.2 hectare landfill within a larger 138 hectare property; and

- allowed a maximum annual fill rate of 125,000 tonnes/year of residential, industrial commercial, institutional, construction and demolition waste.

18. In 1988, this Provisional Certificate of Approval was re-issued to Tricil Limited with minor modifications, and was amended from time to time by the MOE Director in relation to matters such as surface water management, organic waste composting, and site monitoring. In addition, several related certificates of approval have been issued under the EPA and Ontario Water Resources Act to permit other waste-related activities at the Richmond Landfill Site (i.e. leachate management, stormwater pond, contaminated soils processing, etc.).

19. In the mid-1990s, WM (formerly known as Canadian Waste Services) assumed ownership and operation of the Richmond Landfill Site, as well as several other landfills in Ontario. Since then, WM has continuously owned and operated the Richmond Landfill Site.

20. In the late 1990s, WM applied under the Environmental Assessment Act (“EA Act”) to significantly expand the footprint, capacity and lifespan of the Richmond Landfill. In particular, WM applied for a 25-year approval to dispose of an additional 750,000 tonnes/year of various non-hazardous wastes from an all-Ontario service area.
21. The CCCTE, Mohawks of the Bay of Quinte (“MBQ”), and other stakeholders participated extensively in the EA process. The EA documentation was submitted in 2005, and the MOE Government Review of the EA was published in 2006.

22. The Government Review recommended that the proposed undertaking should not be approved due to environmental concerns identified by the ministry, members of the Government Review Team, the MBQ, and the public. On November 3, 2006, the Minister of the Environment accepted this recommendation, and she refused to approve the proposed expansion under the EA Act on environmental grounds (see letter to WM from Minister Broten dated November 3, 2006).

23. After the Minister rejected the proposed landfill expansion in 2006, the CCCTE, MBQ and other stakeholders called upon the MOE to ensure the prompt, proper and permanent closure of the Richmond Landfill Site, and to impose appropriate post-closure requirements, such as monitoring, reporting, remedial work, and contingency measures.

24. In 2007, the MOE Director amended Provisional Certificate of Approval A371203 to require WM to prepare an updated Closure Plan. WM submitted a proposed Closure Plan dated June 2007, which was then subject to public review and comment in August and September 2007 (see EBR Registry No. 010-1381).

25. During the public comment period on the proposed Closure Plan, the CCCTE, through its counsel and hydrogeologist, submitted written comments to the MOE which detailed various deficiencies within the Plan, particularly in relation to monitoring, reporting and contingency plans (see letter to MOE from CELA dated September 14, 2007; letter to CELA from Wilf Ruland dated May 30, 2009, Attachment 1, “Review of 2007 Closure Plan”).

26. In July 2008, the MOE prepared its overall response to the Closure Plan proposed by WM. Among other things, this MOE response summarized the numerous agency/public concerns and questions about the Closure Plan, and further indicated that the MOE expected WM to respond to such concerns “in detail” (see letter to WM from MOE dated July 11, 2008).

27. In November 2008, the Applicant, the MBQ and Tyendinaga Township jointly filed an EBR Application for Review of Provisional Certificate of Approval No. A371203 (see EBR Application dated October 29, 2008). Among other things, this EBR Application for Review requested site closure, comprehensive post-closure requirements, and appropriate groundwater/surface monitoring. However, this Application was denied by the MOE, and the requested public review of the certificate of approval was not undertaken at that time.

28. In his 2008-09 Annual Report, the Environmental Commissioner of Ontario reviewed this matter, and recommended that the MOE require the immediate closure of the Richmond Landfill for various environmental reasons (see ECO 2008-09 Annual Report, Recommendation 11; ECO Annual Report Supplement, page 176).
29. In 2009, the MOE utilized EBR Registry No.010-1381 to solicit public input on over 100 proposed amendments to Provisional Certificate of Approval No. A371203. Among other things, these amendments proposed to require WMCC to prepare an Environmental Monitoring Plan (“EMP”), various contingency plans, and certain reports. In response, the CCCTE, through its counsel and hydrogeologist, made written submissions in May 2009 to the MOE in order to raise a number of procedural and substantive concerns about these proposed amendments (see letter to MOE from CELA dated May 30, 2009; letter to CELA from Wilf Ruland dated May 30, 2009).

30. In October 2009, the CCCTE, through its counsel, wrote to the Minister of the Environment to again request site closure as well as the provision of appropriate post-closure care, such as: site maintenance, monitoring, reporting, remedial work, financial assurance, and contingency measures (see letter to Minister Bradley from CELA dated October 30, 2009).

31. In April 2010, the MOE posted its Decision Notice in relation to EBR Registry No.010-1381. Among other things, the MOE Director decided to amend Provisional Certificate of Approval No.A371203 to prohibit the receipt of waste for disposal at the Richmond Landfill Site after June 30, 2011, and to specify that the five cells of the site shall be capped with final cover material by September 30, 2011. These steps have since been implemented by WM. The amendments further required WM to prepare and file various documents with the MOE by June 30, 2010, including an updated EMP, contingency plans, and other reports.

32. Upon receipt of the required WM documents, the MOE then posted EBR Registry Notice No. 011-0671 in July 2010, and public comments were solicited by the MOE on these documents for a 30 day period. In particular, the EBR Registry Notice solicited comments on the following documents submitted by WM to the MOE in June 2010:

- Environmental Monitoring Plan (WESA, June 29, 2010);

- Operations and Procedures Manual (Genivar, June 25, 2010);

- Leachate Collection System Contingency Plan (Genivar, June 25, 2010);

- Memorandum on Groundwater and Surface Water Impact Contingency Plan (WESA, June 29, 2010);

- Landfill Gas Collection System Contingency Plan (Genivar, June 25, 2010);

- Design of Low Permeability Surface/Low Permeability Liner for the Compost Pad and Pond (Genivar, June 25, 2010); and

- Financial Assurance update (contaminating lifespan calculation).

33. These WM documents were subsequently adopted by cross-reference in Schedule A and certain conditions under appeal in the Amended ECA No. A371203, as discussed below.

34. During the initial public comment period, the CCCTE, through its counsel, wrote to the MOE to request the extension of the public comment period, and to file preliminary comments on the subject-matter of the Registry posting (see letter to MOE from CELA dated August 3, 2010; letter to MOE from CELA dated August 20, 2010).

36. The CCCTE was then notified in writing by the MOE that the public comment period for EBR Registry No. 011-0671 was being extended to October 2010 in recognition that the subject-matter was complex and required additional time for public review and comment (see letter to CELA from MOE dated August 20, 2010).

35. In September 2010, the MOE further advised the CCCTE that public comments received on the EBR Registry posting would be sent to WM, and then draft amendments to the Provisional Certificate of Approval would be posted by the MOE for public comment (see letter to CELA dated September 8, 2010).

36. However, to the CCCTE’s knowledge, the text of proposed amendments to the site approval regarding the WMCC documents were not posted on, or linked to, EBR Registry No. 011-0671, or in any other EBR Registry posting, for public review and comment, before the conditions currently under appeal were issued by the MOE Director (see below). In addition, the conditions now under appeal were not provided in draft form to the CCCTE for review or comment.

37. In October 2010, the CCCTE, through its counsel and hydrogeologist, submitted further written comments to the MOE about the various WM documents being reviewed by the MOE Director (see letter to MOE from CELA dated October 18, 2010; letter to CELA from Wilf Ruland dated October 18, 2010).

38. After the expiry of the public comment period in October 2010, and continuing to January 2012, the CCCTE’s representatives continued to meet and correspond with MOE officials about this matter, particularly in relation to the proposed EMP.

39. In December 2011, the CCCTE, through its counsel, again wrote to the Minister of the Environment to convey the CCCTE’s concerns that no approved EMP was yet in place despite site closure, and that WM was proposing to drop certain wells from the groundwater monitoring program (see letter to Minister Bradley from CELA dated December 14, 2011). The Minister responded to this letter on January 12, 2012 and acknowledged the CCCTE’s concerns, but made no reference to the fact that the MOE Director had decided on January 9, 2012 to issue the Amended ECA (see letter to CELA dated January 12, 2012).

40. On January 16, 2012, the MOE posted its Decision Notice on the EBR Registry in relation to Amended ECA No. A371203. In essence, the MOE Director decided to issue the Amended ECA, including the seven conditions at issue in this appeal in relation to the EMP, contingency plans and monitoring.

(d) CCCTE Reasons for Commencing this Appeal

41. 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 MOE Director. More specifically, the CCCTE determined that the Amended ECA contained inadequate, unreasonable and unacceptable conditions regarding the EMP, contingency plans, and reporting. In addition, the CCCTE determined that the requirements and commitments in the MOE’s Statement of Environmental Values (i.e. ecosystem approach, precautionary principle, cumulative effects, public participation, etc.) were not satisfactorily reflected in the MOE Director’s decision or the Amended ECA.

42. In light of these concerns, the CCCTE sought leave to appeal under the Environmental Bill of Rights in relation to the following 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).

43. On March 30, 2012, the Environmental Review Tribunal granted the CCCTE leave to appeal the above-noted conditions, and lifted the automatic stay of the conditions under appeal.

44. The CCCTE’s Notice of Appeal was served and filed on April 13, 2012.

45. The CCCTE’s main concerns regarding the seven conditions under appeal (and the WM documentation referenced in these conditions) are outlined in the following paragraphs.

46. It is the CCCTE’s view that Condition 8.5 should have included:

- tighter and more explicit deadlines for developing the revised EMP and/or Addendum Report;

- additional parameters for groundwater, surface water and leachate monitoring;

- criteria for identifying additional sampling locations and/or increased frequency for groundwater, surface water or leachate monitoring;

- requirements to install at least two leachate monitoring wells in the waste mound to assess leachate levels and leachate quality;

- requirements to reinstate, sample and report upon the 10 monitoring wells that the proponent proposes to drop from the EMP;

- requirements to monitor and assess the upwelling of deeper saline groundwater at the site;

- requirements to sample all private domestic wells within 1,000 metres of the landfill property boundary;

- requirements for a more detailed plan for odour monitoring and abatement plan (and related public communications plan);

- more timely reporting requirements when exceedances of prescribed parameters are detected;

- meaningful opportunities for public review/comment in the drafting, review and approval of the revised EMP; and

- mechanisms for periodic updating or amending the EMP once approved.

47. It is the CCCTE’s view that Condition 9.1 should have included:

- tighter and more explicit deadlines for developing the groundwater/surface water contingency plan and/or Addendum Report;

- additional mitigation or remedial measures (i.e. provision of alternate water supplies);

- other particulars or operational details (i.e. additional wells as “triggers”);

- requirements for an updated Appendix A with corrected leachate mass balance calculations;

- requirements for an updated Appendix B with corrected analysis of landfill-related impacts upon groundwater and surface water; and

- meaningful opportunities for public review/comment in the drafting, review and approval of the actual plan.

48. It is the CCCTE’s view that Condition 9.2 should have included:

- a prohibition on the use of a blast-induced fracture trench as a contingency measure;

- other particulars or operational details (i.e. timelines, triggers, etc.); and

- meaningful opportunities for public review/comment in the drafting, review and approval of the plan.

49. It is the CCCTE’s view that Condition 9.5 should have included:

- tighter and more explicit deadlines for developing the public notification plan;

- statement of the overall purpose or objectives of the plan;

- clear criteria for determining when public notice should be provided (i.e. spills, upset conditions, implementation of contingency plans, etc.);

- requirements to develop detailed protocols which specify how and when public notice shall be provided under the plan;

- descriptions of the persons (or classes of persons) who should receive notice under the plan; and

- meaningful opportunities for public review/comment in the drafting, review and approval of the plan.

50. It is the CCCTE’s view that Conditions 14.1, 14.2, and 14.3 should have included:

- requirements for summaries of all data and analysis resulting from the revised EMP, including information on:

(i) absence/presence of karst features;

(ii) leachate mounding;

(iii) leachate quality in the unlined portion of the landfill;

(iv) upwelling of saline groundwater;

(v) location/extent of leachate plume;

(vi) leachate generation rates;

- requirements for redesign and reformatting of the groundwater database;

- requirements for improved site mapping;

- requirements for reporting annual volumes of leachate collected and transported off-site from the north and south pumping stations at the site;

- requirements for discussing the efficiency of the leachate collection perimeter system;

- requirements for estimates of leachate volume leaking into the groundwater flow system;

- requirements for a complete inventory of the existing monitoring well network;

- requirements for describing post-closure leachate seeps or springs;

- requirements for describing any spills, upset conditions or emergency situations at the site, and any corrective/remedial measures taken; and

- summary of odour complaints and abatement action taken in response to such complaints.

51. More generally, the CCCTE is concerned that the seven conditions, as currently drafted in the Amended ECA, do not adequately protect the environment or the interests of local residents, including CCCTE members. Accordingly, the CCCTE is of the strong view that the seven conditions under appeal should be revoked and replaced by further and better conditions which effectively address the foregoing considerations.

(e) Current Status of CCCTE’s Concerns about Conditions under Appeal

52. Since the commencement of this appeal, the CCCTE and its counsel and experts have met and corresponded with representatives of the MOE Director, WM and the MBQ to discuss potential terms/conditions and other mechanisms which may resolve the CCCTE’s above-noted concerns about the seven conditions under appeal, and the associated WM plans and reports.

53. At the present time, these inter-party discussions remain ongoing, but it appears that some progress may be possible in resolving some of the CCCTE’s above-noted concerns, particularly in relation to WM’s updated odour monitoring plan (Condition 8.5(d)), proposed public notification plan (Condition 9.5), and the content of annual reports and semi-annual monitoring reports (Conditions 14.1 to 14.3). The CCCTE’s concerns regarding the EMP, groundwater/surface water protection, and contingency plans remain largely unresolved at the present time, pending further inter-party discussions.

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

This document details the formal application under the Environmental Bill of Rights (EBR) by the Concerned Citizens, the Mohawks of the Bay of Quinte and Canadian Environmental Law Association to the Environmental Commissioner of Ontario to change the provincial legislation governing the siting of landfills.

The proposed amendments would prohibit the establishment or expansion of waste disposal sites on inherently unsuitable  fractured bedrock locations. The application also proposes to prohibit repeated applications for approval of waste disposal sites at or adjacent to locations which have previously been denied for environmental reasons.

EBR Application July 2013

1. Interim Minutes of Settlement – Agreed to by all parties

- Semi Annual Monitoring Report

- Odour Survey Protocol

- Public Notification Plan

WM CCCTE COUNTERPART EXECUTED INTERIM MINUTES OF SETTLEMENT MARCH 11 2013

2. Further Interim Minutes of Settlement – Agreed to by all parties

- agrees that there is evidence of leachate migrating off-site contrary to Environmental Compliance Approval for the site

- agrees that the site has complex hydrogeology and lacks downgradient groundwater monitoring

- details further investigation required

Final Further Interim Minutes of Settlement for April 12 Prehearing

3. Draft of proposed Interim Order for the ERT to consider – Recommended by the CCCTE

CCCTE – Proposed ERT Order – for April 12 2013 prehearing

The document amends “Condition 35″ of the certificate issued to Waste Management granting them permission to operate the Richmond Dump (site number A371203 ). The amendment adds a condition which effectively orders Waste management to close the dump. Specifically it says:

“The Owner shall ensure that no waste is received for disposal at the Site after June 30, 2011 and the site is capped with final cover material in accordance with the timelines presented below.”

Despite this, Site Manager Randy Harris has on at least two occasions, published this statement:

“The Ministry of the Environment did not order the closure of our landfill’

This statement obviously contradicts the written record. Faced with such contradictions it is difficult to understand how he expects to be trusted when he talks about how “safe” and “beneficial” a giant rotting heap of other people’s trash will be to our community.