Intervenor: Vol 25. No 3 & 4 July-December 2000

Adams Mine: what happens next?

The continuing saga of the proposed Adams Mine Landfill has taken some unusual-if not unanticipated-twists and turns over the years. Despite this tortuous history, however, not even the most astute observer could have predicted the recent turn of events.

Background

From the very outset, the proposed Adams Mine Landfill has been characterized by widespread public controversy and concern over the environmental risks associated with dumping garbage in the 600 foot-deep South Pit, which had formerly served as an iron ore mine.

In 1995, for example, Metro Toronto was actively considering the Adams Mine site, and established a Public Liaison Committee, which raised a number of technical concerns and objections to the proposed landfill. Ultimately, Metro Toronto decided against becoming the actual proponent of the project, but Notre Development Corporation (Notre) continued to pursue the project as a private sector proponent.

Notre prepared and submitted an environmental assessment (EA) to the Ministry of the Environment (MOE). Members of the public made numerous submissions to the MOE criticizing the adequacy of the EA documentation, and requesting a full public hearing before the EA Board. Despite these requests, the Minister decided to approve most aspects of the proposed undertaking without a public hearing.

However, the Minister did refer a single technical matter (ie, the effectiveness of the leachate collection system) to the EA Board for a "scoped" hearing. In effect, this scoped referral meant that the Board had no jurisdiction to review or consider other important matters such as leachate treatment, surface water protection, or landfill gas management. Indeed, the EA Board had no jurisdiction to consider whether there was even a demonstrable need for the proposed landfill site, or whether there were alternatives (ie, 3R's) which are environmentally preferable to simply putting Toronto's garbage on a train for disposal at the Adams Mine Site.

The Board proceedings represented the first (and to date, only) scoped hearing held under recent "reforms" to Ontario's Environmental Assessment Act (EA Act). At the hearing, CELA served as counsel for the Adams Mine Intervention Coalition (AMIC), a group of environmentalists, farmers, and local residents opposed to the proposed landfill.

After a speedy 15-day hearing in 1998, the three Board members could not agree among themselves whether Notre's novel "hydraulic containment" design would actually work at the fractured bedrock setting of the Adams Mine Site. In his dissenting decision, one Board member found that the proposed design was fraught with uncertainty, and should not be approved.

The two other Board members gave the design a conditional approval, but ordered Notre to undertake further borehole drilling under the mine pit to obtain additional data about rock fracturing and groundwater flow. In fact, the Board's Condition 10 prohibited the deposit of waste at the site unless the MOE Director determined, "without reservation", that the new borehole results demonstrate the long-term effectiveness of the hydraulic containment design.

Given that the MOE had been a hearing party in support of the Notre proposal, CELA's client sought judicial review of the Board's decision on the procedural ground that Condition 10 amounted to an unlawful delegation of the Board's decision-making power. This judicial review application was unsuccessful, and the MOE Director issued Notre a provisional certificate of approval under Part V of the Environmental Protection Act (EPA) in 1999.

Significantly, however, the MOE Director did not make the express "without reservation" finding about the borehole results contemplated by Condition 10. In addition, AMIC's expert hydrogeologist reviewed the borehole results, and found that they confirmed his testimony at the Board hearing that there were transmissive fractures in the bedrock which would permit leachate to escape from the mine pit. A subsequent application under the EA Act by CELA's clients to have the EA approval reconsidered in light of the new borehole evidence was rejected by the Minister.

The Toronto Bidding Process

With the EA Act and EPA approvals in hand (but still requiring other provincial approvals under the Ontario Water Resources Act), Notre and its partners in the "Rail Cycle North" consortium participated in the bidding process established by the City of Toronto for its long-term disposal contract. The Adams Mine was short-listed with other bids, then was selected as the preferred bid by Toronto council in mid-2000.

Toronto staff then attempted to negotiate the detailed terms of the contract with the proponent. In the fall of 2000, after intense (if not rancorous) public debate, Toronto council ratified a long-term disposal contract to be executed with the Adams Mine proponent. Among other things, public debate focused on Toronto's potential liability under a multi-million dollar penalty clause in the contract, as well as Toronto's open-ended liability for "unavoidable expenses" which might arise over the course on the long-term contract.

Ultimately, Toronto council approved a contract which excluded the "unavoidable expenses" clause. This amended contract was then submitted to the proponent for acceptance or rejection. In an astonishing turnabout, the proponent announced that the amended contract posed unacceptable business risks, and that the contract could not be signed by the consortium.

Thereafter, Toronto began to negotiate with another short-listed bidder which operated the Michigan landfill which is currently receiving Toronto's waste. Recent statements from Toronto's mayor suggest that the Adams Mine contract is dead, and that Toronto's long-term disposal needs will be met by the Michigan landfill.

Other Recent Events

Before, during and after the Toronto bidding process, opponents of the Adams Mine proposal undertook other steps and pursued other angles in relation to the proposed undertaking. For example, numerous Northern Ontario residents (including members of the Temiskaming First Nation) established a widely publicized blockade on the railway tracks that were to be used to transport Toronto's waste to the Adams Mine. In addition, the Temiskaming First Nation announced that it would assert a land claim which included the very property upon which the Adams Mine is located.

Similarly, public opinion polls demonstrated that local residents were opposed to the Adams Mine proposal. Given that the site is located in the unorganized Township of Boston - not the Town of Kirkland Lake (which is upstream of the site)-these poll results clearly suggest that there is no "willing host" community. Indeed, public opinion polls suggest that Torontonians, too, were not in favour of the Adams Mine proposal, and instead preferred more comprehensive 3R activities.

The nature of the First Nation's interest in this matter (as well as other potential areas of federal jurisdiction) prompted dump opponents to request a federal EA under the Canadian Environmental Assessment Act (CEAA). Indeed, the proposed contract between Toronto and the Adams Mine proponent indicated that the deal would be terminated if a federal EA were ordered by the federal Environment Minister in the near future. At the present time, this request for CEAA coverage is still being reviewed by federal officials, despite the demise of the Toronto contract.

CELA is continuing to monitor this situation as a part of a legal team consisting of other lawyers in Northern Ontario and Toronto. One positive development arising out of recent events is the Toronto mayor's apparent commitment during the municipal election campaign to aggressively pursue 3R programs to minimize the volume of waste requiring disposal. Further developments regarding the Adams Mine will be reported upon in future issues of the Intervenor.
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Rick Lindgren is a lawyer at CELA