OMYA Hearings in Canada Finally at an End

By Michael Cassidy

December 6, 2001

PERTH, Ontario - The Environmental Review Tribunal’s marathon review of the the application by OMYA (Canada) Inc. to take 4.5 million litres of water per day from the Tay River near Perth finally came to an end on Oct. 31 after more than 25 days of hearings that stretched over nine months.

Pauline Browse, a vice-chair of the Tribunal and chair of the hearing, must now reach a decision in the bitterly-fought appeal by citizens of OMYA’s application for a water-taking permit. Her decision is expected sometime between mid-December and early in the New Year.

Argument in the appeal focussed on the effects of OMYA’s water-taking on the Tay River and its watershed, and on the broader ecosystem effects of OMYA’s water-taking and associated expansion that threaten to impact all of north Lanark. Lanark County is an unspoiled rural and recreation area just beyond the fringe of metropolitan Ottawa, a city of a million and Canada’s capitol.

Evidence at the hearing indicated that OMYA’s plans call for production of calcium carbonate at its quarry at Tatlock in north Lanark to grow from a million tons per year to 4 million tons per year. This compares to OMYA’s current production of around one million tons per year in Vermont and, according to its website, around three million tons per year in all of North America.

Only one county road connects the quarry and OMYA’s world-scale processing plant near Perth. At full production the OMYA quarry would generate 250 truckloads of calcium carbonate per day, the equivalent of trucks passing back and forth through north Lanark every two or three minutes, 24 hours per day and 365 days per year.

Under the Ontario provincial government’s Environmental Bill of Rights, citizens have a right to appeal water permits and other environmental decisions by provincial agencies before the Environmental Review Tribunal. The process begins with a ‘leave to appeal’ process in which appellants must convince the tribunal that the decision to grant the permit was both unreasonable and could cause harm to the environment.

This requirement is so rigorous that in six years of operation only a half dozen water-taking cases have been successfully taken before the Review Tribunal,. The OMYA case was the first in which citizens carried an appeal to conclusion rather than lawyers acting for the appellants.

Eight separate appellants contested the OMYA permit, including cottagers, residents along the Tay River and in rural Lanark County, and a public interest group, the Council of Canadians, which is engaged in a national campaign to prevent Canadian water being considered as a commercial product under Canada’s free trade agreement with the United States and Mexico. The reason for their campaign is concern that if water comes under the trade agreement, then Canada may lose its ability to protect its fresh water resources against overwhelming U.S. demands. The Council of Canadians was the only appellant with legal representation.

OMYA hired a lawyer from London, Ont., who had formerly been chair of the Ontario tribunal that considered environmental appeals before the ERT. The company received strong support from the Ontario Ministry of the Environment, the provincial agency that granted the original OMYA permit in August of 2000.

Much of the debate at the hearing revolved around whether OMYA’s proposed permit should be considered in isolation or in the context of the Environment Ministry’s declared support for an "ecosystem approach" to environmental decision-making in which social, economic and human impacts are meant to be considered together with the effects on the natural environment.

OMYA chose not to present its chief Canadian officer, company vice-president Olivier Chatillon, nor any other company official as a witness. In their place it called scientific witnesses who focussed on the capacity of the Tay to support OMYA’s plan for large-scale water-taking. The Tay is a small and picturesque river draining a watershed of 45 lakes in cottage country west of Ottawa. In many places near the OMYA plant, the river is only a few inches deep except when the snow melts in spring.

The Ministry of Environment witnesses also focussed on the Tay and barely touched the wider ecosystem issues raised by the appellants. MOE officials argued that they had taken a prudent position by reducing the permit under appeal to 1.5 million litres a day for the first three years and requiring that further studies be made before a second phase of the permit allowing the full 4.5 million litres a day could come into force. The Ministry also wrote a condition into the permit to prevent OMYA taking water from the Tay at periods of very low flow and to shut down its existing groundwater supplies once it begins taking water from the river. The proposed permit is for a period of 10 years.

Appellants and their witnesses expressed concern over the Tay watershed’s capacity to support OMYA’s requirements, particularly because of its role as a reservoir for the historic Rideau Canal system. Upper lakes in the Tay watershed were first dammed 130 years ago to serve as reservoirs to maintain navigation on the canal. These lakes now rise and fall by more than four feet every year for that purpose. OMYA witnesses maintained that even in a dry year, the additional amount of water used for OMYA’s production of calcium carbonate slurry would be almost impossible to discern.

Appellants also objected that the permit would allow Ministry officials to decide whether Phase II of OMYA’s water-taking to proceed without any guarantees that citizens can participate in the process or appeal under the Environmental Bill of Rights. We pointed out that OMYA’s proposed water-taking equals the entire annual water consumption of Pearth, a town of 6,000 population located a few kilometers downstream from OMYA’s proposed water-taking site on the Tay.

The Council of Canadians contended that OMYA’s plans to take Tay River water and incorporate it into product shipped away from the Tay watershed and, in many cases, out of Canada - a so-called consumptive use - could create a trade precedent that would affect water policy across Canada and not just in one location. Predictably, OMYA and the Ministry disagreed.

The Ministry of the Environment tried to maintain that its statements making the ecosystem approach a cornerstone of ministry policies did not apply to the OMYA water-taking because the policy had not yet been written in to the legislation governing water permits. Appellants pointed out in reply that the manual used by officials for water permits had hardly been changed since 1985 and that the Ministry had made no effort to update it after the legislative adoption of Ontario’s Environmental Bill of Rights in 1993.

As appellants with a cabin located a short distance from OMYA’s Tatlock quarry, we focussed on the serious impact that constant truck traffic generated by OMYA’s water-taking and associated quarry expansion would have on the environment and economy of north Lanark. Constant heavy traffic, we suggested, could devastate the quiet communities along County Road 511 connecting the quarry to OMYA’s plant and disrupt the rural values that make Lanark a treasure for tourists, cottagers, retirees and and craftspeople.

We introduced evidence of the impact of OMYA’s operations both from Vermont and from Vingrau in France, as well as calling Councillor Michael Fannin of Tinmouth, Vt., as a witness. Counsel for OMYA (Canada) insisted that the company had no relations to OMYA Inc. in Vermont and persuaded the tribunal not to hear Mr. Fannin’s evidence, even though both companies are wholly owned by the OMYA parent in Switzerland and appear to have integrated North American operations in marketing, sales and technology. As an example, OMYA (Canada) has no website of its own but has its two plants listed on the North American website of OMYA at http://www.omya-na.com.

We also noted that OMYA had at no time been called on to justify its demand for 4.5 million litres of water per day. Evidence submitted by the company showed that OMYA turns about half of its calcium carbonate production in Lanark into slurry and that this slurry, on average, contains about 25% water. Evidence also showed that OMYA’s quarry has a production limit of four million tons of calcium carbonate per year.

At this level of production OMYA would produce about 2 million tons of slurry, measured by mineral content, per year and would require no more than 1.8 million litres of water per day. This is only 40% of the amouont it had requested. OMYA and Ministry officials made no attempt to explain where the remaining water would go. One explanation, we suggested, was that it planned for even higher levels of production than those that are now projected - i.e. that it plans to open another calcite quarry.

All parties submitted written argument at the end of the hearings but were restricted to a limit of 10 pages plus footnotes. The key submissions from appellants were those of Mel and Carol Dillon, homeowners living on the Tay River; Sulyn Cedar, leader of a Lanark County citizens’ action group; the Council of Canadians; Jim Ronson, head of a citizens’ group in the town of Perth; and ourselves as cottagers concerned about OMYA’s impact on north Lanark. These are attached along with the submissions of OMYA and of Ontario’s Ministry of the Environment.

We can be reached by e-mail at <mkcassidy@sympatico.ca> if any readers have further questions about this case or OMYA’s activities in Canada.