Rutland Herald

OMYA, opponents await Canadian decision

January 12, 2003

By BRUCE EDWARDS Herald Staff

The fate of a controversial plan by OMYA to withdraw more than 1 million gallons of water a day from a small Canadian river for its calcium carbonate operation is now in the hands of a provincial politician.

OMYA Canada is seeking to overturn last year’s Environmental Review Tribunal decision that limited the company’s withdrawal from the Tay River to 390,000 gallons a day. In its appeal, OMYA has asked Ontario’s minister of the environment to approve its original request of 1.2 million gallons of water a day.

Opponents have fought OMYA’s water-taking plans for nearly three years, alleging the size of the withdrawal could have an adverse impact on the Tay River and on the 6,000 residents of Perth, who rely on the river for drinking water.

Currently, the Swiss multinational company uses well water to run its Perth plant in Ontario. But the company says it needs the water from the river to meet growing demand for its product.

Water is mixed with the ground calcium carbonate to produce a slurry product, which is used in the paper, paint, plastics, chemicals and pharmaceutical industries.

In August 2000, the company was granted a two-phase, 10-year permit that allowed an initial withdrawal of 390,000 gallons a day. Following additional monitoring, the withdrawal would increase after three years to the full amount of 1.2 million gallons per day. However, several parties appealed the permit, arguing that it was issued without adequate studies.

In a decision on the appeal issued last February, the Environmental Review Tribunal restricted OMYA to its initial allotment of 390,000 gallons of water a day. The ERT also limited the permit to six years, during which time the impact of the water taking would be assessed. More important, the decision required OMYA to file a new application if it wanted to increase its withdrawal.

Opponents, who are represented by the Canadian Environmental Law Association, have argued that the cautious approach to water taking rendered in the ERT’s decision is justified given the large amount of water OMYA wants to withdraw.

But OMYA Canada President Olivier Chatillon has defended the company’s plan, arguing that various government ministries, agencies and independent experts have examined the proposed water usage and concluded that it “will not have a significant impact on the river if we take the 4.5 million liters (1.2 million gallons) from the Tay River.”

What is also disturbing, opponents charge, are efforts by the company to circumvent the accepted appeals process.

The company has appealed on two fronts, with one appeal filed in Divisional Court and the other appeal directed to Ontario Environment Minister Chris Stockwell. It’s the latter appeal that has opponents upset and concerned.

In what is regarded in Canadian legal circles as a rarely used power, Stockwell recently agreed to consider OMYA’s appeal. An appeal in OMYA’s favor by Stockwell would render the court appeal moot since the company has said it would withdraw its judicial appeal.

“The very fact that this minister agreed to hear their appeal is unusual, so we’re not sure what that means,” said Carol Dillon, who, along with her husband, is among several opponents that are parties to the case.

In addition, the Ministry of the Environment, which had agreed with the appeals decision that restricted the company’s withdrawal to 390,000 gallons a day, reversed itself late last year and is now recommending that Stockwell grant OMYA’s request for the full amount.

Stockwell’s decision to consider the appeal came after Chatillon sent a letter to Ontario’s Conservative premier that implied that OMYA may have to advise other foreign companies about the difficulty of doing business in Canada unless it received its permit.

Chatillon dismissed criticism that the company was twisting arms, saying the appeal to Stockwell was nothing more than the company exercising its rights.

(A somewhat similar tactic was employed by the company in Vermont several years ago when OMYA sent a letter to Gov. Howard Dean, threatening to divert a $160 million investment to other states unless it received the necessary Act 250 approval to expand its business in Vermont.)

OMYA’s opponents, including Dillon, also expressed concern that in its ministerial appeal the company is seeking to revoke three of the permit conditions.

One condition requires that OMYA hire an independent environmental auditor to monitor and report on the water taking, while the other two conditions require the company to keep the community and opponents informed through annual meetings.

“It sort of guarantees that local towns, villages, municipalities and interest groups have a right to be informed about how much water they’re taking,” Dillon said.

But Chatillon said an independent auditor is unnecessary because the permit already contains enough safeguards and public disclosure.

As far as the community meetings are concerned, he said the company is concerned such meetings as outlined in the permit might be abused by opponents.

“We don’t want to be in a position that some public member will utilize this opportunity as a forum to discuss other matters,” Chatillon said.

Dillon said a decision by Stockwell in OMYA’s favor would go against recent government policy that provides for involving communities in water-related issues. The policy recommendations, contained in what is known as the Walkerton Report, were issued following a deadly outbreak of E. coli in the town of Walkerton, Ontario.

“It’s a very tough struggle for a small community dealing with such a large international, multi-billion dollar company that has endless resources,” Dillon said. “But it’s something that had to be done.”

Contact Bruce Edwards at bruce.edwards@rutlandherald.com