ERT Witness Statement of Michael Bossio

April 13 | Posted by Jeff | Document Library

Mike ERT smallWitness Statement of Michael Bossio


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.

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