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Ontario Graphite Ltd. Subject to Control Order Issued by Environment Ministry

The Ontario Ministry of the Environment and Climate Change (MOECC) recently issued an Emergency Director’s Order to Ontario Graphite Ltd. (OGL) related to its mining site in Butt Township, Kearney, Ontario.  An Emergency Director’s Order is issued when the MOECC is of the opinion that inaction of a situation can result in one or more of the following: danger to the health or safety of any person; harm or serious risk of harm to the environment; or injury or damage or serious risk of injury or damage to any property.

Under an Emergency Order, immediate actions and environmental actions must be taken to protect the natural environment and to prevent or reduce the discharge of a contaminant into the natural environment from the undertaking or property, or to prevent, decrease or eliminate an adverse effect.

Photo Credit: NorthBayNipissing.com

Kearney is a town and municipality in the Almaguin Highlands region of Parry Sound District of Ontario, Canada.  With a landmass of 531 square kilometres and a year-round population of 882 in the Canada 2016 Census, Kearney claims to be the “Biggest Little Town in Ontario.”  Butt Township was amalgamated with the Town of Kearney in 1979.

Since the issuance of Director’s Order Amendment No. 1 Ontario Graphite Limited (OGL) has reported to the MOECC multiple exceedances of discharge limits specified in the Environmental Compliance Approval (ECA) issued for the Kearney Mine industrial sewage works and Ontario Regulation 561/94 (i.e. including exceedance of limits for acute toxicity to test organisms Rainbow Trout and Daphnia magna, iron, total suspended solids and pH).

As requested by the MOECC, OGL proposed a short term management action plan to address the effluent discharge limit exceedances from the polishing pond until such time that construction can be completed on the industrial sewage works to enhance treatment efficiency once approved by the MOECC through an ECA amendment. OGL further indicated to the MOECC that an application to amend the ECA for necessary modifications to the industrial sewage works is currently being prepared.
Following the MOECC’s review of the short term management action plan and monitoring data submitted by OGL, the MOECC is concerned that measures proposed by OGL will be insufficient in achieving adequate treatment until such time that construction and operation of the proposed modification to the industrial sewage works, subject to the planned application and subsequent approval by the MOECC, if issued, are completed.

Currently, the lime dosing system being used at the Kearney Mine as part of the existing industrial sewage works operation is operated on a batch basis over, typically, an eight hour period during daylight hours.  The enhanced pH monitoring and reporting required by the January 31, 2018 Director’s Order amendment has demonstrated that the pH of the discharge is not consistently meeting the required pH range over a 24 hour period.  Therefore, the MOECC is directing that the operation of the batched system be extended over a daily, 24-hour period to ensure compliance with pH at all times.

In addition to adjusting the lime dosing system the MOECC is ordering a contingency plan be developed to including the use of an approved mobile treatment unit to ensure adequate treatment is achieved if proposed measures are not sufficient in achieving compliance with all discharge water quality limits until such time that modifications, approved through an amendment to the ECA, are implemented.

In summary the Emergency Director’s Order requires OGL to do the following:

  • Conduct an enhanced monitoring program for pH.
  • Ensure that the operation of lime dosing system is supervised by a Qualified Person and that effluent is maintained within a pH range of 6.5 – 8.5 at all times.
  • Retain a Qualified Person to develop and submit a contingency plan to treat the Kearney Mine polishing pond waters.
  • Retain a Qualified Person to submit an amendment to the issued Industrial Sewage Works, Environmental Compliance approval.

The Order was served to the company as well as a number of a company director, the CFO & CAO, and the CEO.

Ontario MOECC Issues Draft Order to Mining Company in Northern Ontario

Ontario MOECC recently issued a draft Director’s Order to Ontario Graphite Ltd. and several Directors of the company that, if finalized, will require the company to perform remedial work related to an interceptor trench, mine tailings dam, polishing pond.

The mining operation, referred to as the Kearney Graphite Mine, is located Township of Butt in the District of Parry Sound, approximately 20 km north east of the community of Kearney.

Ontario Graphite Ltd. Kearney Mine Site (Photo Credit: Sudbury Mining Solutions Journal)

Under these sections of the Environmental Protection Act and Ontario Water Resources Act, the Director may require a person who owns, or owned, or who has or had management or control of an undertaking or property, to take immediate actions and environmental measures to protect the natural environment and to prevent or reduce the discharge of a contaminant into the natural environment from the undertaking or property, or to prevent, decrease or eliminate an adverse effect.

The overall objective of the proposed Director’s Order is to amend an existing Director’s Order issued on January 26, 2016 to have the company implement a work plan for the treatment of mine water discharges as well as submit a written report prepared by a qualified person.

On April 10, 2017, Ontario Graphite Ltd. reported that the open pit was overflowing to the environment as a result of spring melt.  Ontario Ministry of the Environment and Climate Change (MOECC) staff visited the site on April 12, 2017 and observed that the collection trench used by the company to prevent acidic water from entering Graphite Lake (i.e. the interceptor ditch) had also overflowed at some point prior to the site visit.

During the April 12, 2017 MOECC site visit, company staff reported to the ministry that additional erosion had occurred on the downstream dam that separates the tailings management area from the polishing pond. Company staff did not foresee concerns for dam stability; MOECC staff, however, recommended that the company have someone with the necessary expertise undertake evaluation of the structure.

In response to the MOECC recommendation, the company retained a consulting firm to provide recommendations for any needed remedial work on the tailings dam. As detailed in the updated action plan submitted to the ministry on October 30, 2017, the company awaits receipt of the report detailing these recommendations and following receipt, will implement the recommendations noted.

In 2017, Ontario Graphite Limited reported several non-compliance incidents with water quality discharge limits specified in the Environmental Compliance Approval including acute toxicity, iron, total suspended solids and pH.  Although the company attributed some of the exceedances to the dewatering of the open pit, a consultant hired by the company as a result of the Director’s Order noted a number of recommendations that should be implemented to improve operation of the sewage works and to maintain compliance with the final effluent limits.

Canada: Environmental Review Tribunal gives Ministry Broad Preventative Powers over Migrating Contamination

Article by Stanley D. Berger, Fogler, Rubinoff LLP

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Ontario Environmental Protection Act (Ontario EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties.  The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ontario Ministry of the Environment and Climate Change, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion.  Section 18 of the Ontario EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property.  The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects.  The Tribunal looked to the purpose of the Ontario EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose.  Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work.

 

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About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law.

Stanley represents suppliers and operators in the nuclear industry on nuclear liability, regulatory and supply chain issues. He provides legal advice to the Nuclear Waste Management Organization. Other clients include the CANDU Owners Group and a large Ontario municipality. His environmental practice includes litigation before courts, boards and tribunals, as well as solicitor’s work on behalf of renewable energy companies, landowners and waste management entities. He represented a First Nation on regulatory matters relating to a renewable energy project. His practice also includes the protection of proprietary information on applications before Ontario’s Freedom of Information and Privacy Commission.

This article was originally published on the Fogler, Rubinoff LLP website.