In North York, lax environmental enforcement pits neighbours against asphalt plant

Ministry of Environment allowed plant to operate for years under inadequate permit as neighbours complained about dust, noise.

Thestar.com
Feb. 7, 2018
By Anslie Cruickshank

In 2009 the Ministry of Environment ordered an asphalt plant in North York to apply for an updated environmental permit, one that would better represent its operations.

Three years passed before the company applied and another four before the ministry issued a new permit in December 2016.

Today, more than year a later, the ministry still can't say for sure how much pollution the plant spews.

It's what Ontario's Environmental Commissioner Diane Saxe calls "a very distressing example of ineffective enforcement by the ministry."

For the people who work nearby, it's been a source of frustration and worry for years.

"It's definitely affected my business," said Frank Tucitto, a mechanic who works in the commercial complex next door to the plant. "People have complained."

"Who wants to bring their car here and it's nice and clean in the morning and then they pick it up at night and it's all covered in dust," he said.

In the summertime, when the plant is running every day, Tuccitto works with the doors closed. "I can't stand the noise and the dust flying around," he said.

Linda Hong, who manages and lives at the complex, shares his concern.

"We are suffering so many years, nobody cares," she said.

While this is a story about one asphalt plant, Saxe said there could be as many as 100,000 other outdated permits in Ontario allowing companies to pollute under rules that by today's standards may not offer enough protection for the environment or human health.

In Ontario, environmental permits, or environmental compliance approvals as they are known officially, set the rules for businesses that release pollution into the air, land, or water to protect the environment.

Hot mix asphalt plants, like Ingram, have the potential to emit pollutants that can be damaging to both the environment and human health, including nitrogen oxides, which can interact with other chemicals in the atmosphere to form acid rain, and benzo(a)pyrene, which the U.S. Environmental Protection Agency considers "carcinogenic to humans."

Like other industrial operations, they can also be dusty.

In some jurisdictions environmental permits must be updated after anywhere from 15 months to 10 years, according to a 2016 report by Auditor General Bonnie Lysyk.

The same can't be said for thousands of outdated permits in Ontario, which in many cases, the public doesn't have easy access to.

Only those issued after 2000 are available online. Lysyk's report notes "all relevant documentation" regarding permits issued before 2000 is "currently stored in boxed paper files in the Ministry's off-site storage facility."

The ministry, though, will only update these permits if an emitter indicates it has changed operations or, in some cases if it receives complaints, Lysyk's report says

In a statement a ministry spokesperson, Gary Wheeler, said "the ministry takes concerns raised by members of the public seriously."

In the case of Ingram Asphalt, Wheeler explained the process to update the permit required "extensive consultations" before the ministry was satisfied with the proposal.

In its own statement, Ingram Asphalt said its hired consultants "went above and beyond industry specific practices" to satisfy the ministry and "protect the neighbourhood."

The company added that it has made a "large number of improvements" since buying the plant in 2005 and has worked to address environmental concerns by implementing industry best practices for daily operations and maintenance.

In just the last four years, Ingram has spent more than $1 million to make environmentally-focused improvements to the plant and expects to spend $500,000 more, the statement added.

Experts, though, say the case is an inexcusable example of lax government enforcement.

Ingram Asphalt, owned by Rohit Bansal, took over the plant in 2005 under an existing environmental permit issued in 1999. By that point the plant was more than 20 years old.

The plant, which the company notes is the smallest in the Greater Toronto Area both geographically and by level of activity, sits near the corner of Ingram Dr. and Sheffield St. in an area zoned for industrial use. It is surrounded by commercial properties.

The edge of the nearest residential neighbourhood is almost 500 metres away. A long-term care facility sits closer, less than 400 metres away.

It was repeated complaints about dust from the plant that led officials to inspect it in September 2009.

At the time, the company said it was repairing equipment, but issues with dust continued that fall, according to records obtained by one of the plant's neighbours through freedom of information and shared with the Star.

On Oct. 7, 2009, for example, a ministry official visited the area and found that while there was no dust upwind of the plant, downwind a "haze" could be seen along Caledonia Rd. The official said they stopped their car in the direct path of the plume for 10 minutes and a coating of light coloured dust built up on the windshield. The plant stopped work soon after and the haze was gone within 15 minutes, the official wrote.

Records show the ministry believed the company was breaking the laws of the Environmental Protection Act.

Dayna Scott, a York University expert in environmental law, questioned why the company was given a permit before proving it wasn't polluting more than allowed.

"We already know in Ontario that even if everybody was complying with the terms of their permits we still would be exceeding the health based air quality thresholds in some parts of the province," she said.

Saxe, Ontario's Environmental Commissioner, said the ministry has all the power it needs to make companies comply with environmental laws and "it's their responsibility."

"The ministry could have shut them down, they could have amended the approval themselves," she said.

The ministry, though, would only consider forcing a company to shut down if there was "an immediate risk / threat to life or health," said Wheeler.

Over the years, the ministry has taken steps to investigate concerns about the plant. In 2015 it tested dust samples from the commercial complex next door and found the dust was typical of an industrial area. Officials came to similar conclusions about air quality after five days of monitoring in the area in 2016. It never exceeded Ontario's regulations during the monitoring, Wheeler said.

In October 2017, the ministry also ticketed Ingram Asphalt for piling aggregate too high, a possible source of dust.

Back in 2009, however, the ministry was concerned enough to order Ingram to apply for an updated permit within a few months and to make sure it wasn't polluting more than it was allowed.

Ingram, though, wouldn't apply for a new permit until 2012. That year the company was also convicted under the Environmental Protection Act and fined $65,000 in part for the dust it discharged in 2009.

The ministry said Ingram Asphalt made "significant improvements" after that, but by early 2014 officials still hadn't made a decision about a new permit for the plant, which continued to operate under the old rules.

In March 2014 Linda Hong got involved. Hong, who manages the Kincort Service Mall right next door to Ingram Asphalt, said she'd heard from several tenants who were worried about the effects of dust, noise, and other pollutants on their businesses and health.

The ministry received more than 100 complaints about Ingram in each 2016 and 2017, and most were from Hong. She logged unofficial complaints through her Twitter account @UnluckyResident. And, she filed applications under Ontario's Environmental Bill of Rights asking the ministry to review Ingram Asphalt's existing environmental permit.

Hong also connected with her city councillor Frank Di Giorgio, whose community office is across the street, less than 150 m from the plant itself. Di Giorgio said his office has been hearing concerns from area residents and businesses for years.

From the perspective of Mike Crupi, who used to own the asphalt plant and still owns the property on which it operates, however, this is a case of NIMBYISM pure and simple.

"Look you're in an industrial area, everybody makes dust," he said. "You ever driven down a road in the spring time? Dust is flying everywhere until they sweep the roads."

The asphalt plant, he said, provides a needed service that the city relies on. Asphalt isn't all bad either, he added, noting it's one of the most recycled products in the world.

While Crupi agreed Ingram Asphalt has to adapt to environmental rules as they evolve in Ontario — he's concerned about the approach that's been taken.

People should be saying "how do we help Ingram?" he said not "how do we get rid of them?"

He's frustrated by the neighbourhood complaints against the asphalt plant, particularly from Hong.

While Hong said she lives at the complex next door to the plant because it's easy for her, especially in the winter, Crupi said she should be the one to move, not the plant which is operating in an industrial area.

"Are we a pretty ugly industry, absolutely, unfortunately, but that's the nature of what construction is, what paving is," he said.

"If you're saying 'hey is a dress manufacturing plant there better than Optimum Waste or Ingram Asphalt,' no argument, but who's more necessary?" he said.

"We're a service industry, we service what is Toronto, we give them a needed service that saves them money and makes the city viable."

Hong's complaints made an impact though.

Two months after she said she began calling the ministry to complain, officials "identifie(d) a need to expedite the review" of Ingram Asphalt's application.

At this point, it had been almost five years since the ministry ordered the company to get a new permit

Over the next two years, the ministry would go back and forth repeatedly with Ingram Asphalt about issues with their application.

Each time the company responded the ministry seemed to have more questions and concerns.

Between the summer of 2014 and January 2016 the ministry sent six letters asking for improvements and a senior air engineer with the ministry was ready to refuse Ingram Asphalt's application for a new permit.

In an email to a colleague, the engineer wrote: "I would like to refuse this file, and have them come in when they are ready. We can expedite the application if you wish when they send a new one. I can't keep this file open any longer."

Some seven months later, the ministry received an updated application from Ingram that addressed their concerns and in December 2016 they issued the company a new permit, which they say contains significant conditions.

In a further effort to address concerns, the company is paving the site, using canopy systems to control dust and installing partial enclosures for truck loadouts, an official wrote in a letter to Hong, earlier this year.

But the story doesn't end here.

The new permit requires the company to do pollution testing to prove that it is only polluting as much as it's allowed.

While Ingram Asphalt did those tests in September 2017, the ministry later determined issues with the plant's ductwork meant the testing hadn't included emissions from storage tanks.

On Nov. 3 the ministry ordered Ingram Asphalt to stop producing asphalt until they had made repairs, which were completed on Nov. 8.

The company will do another round of pollution testing in the spring when Ingram Asphalt resumes full operations, said Wheeler.

By that time, more than eight years will have passed since the ministry ordered the company to apply for a new permit.

For Scott, the environmental law expert from York, this is "inexcusable."

It's also just one example of a wider issue with environmental enforcement in Ontario.

"There are really big fish to fry in Sarnia but they're not frying either," Scott said, noting an ongoing investigation by the Star, Global News, and two journalism schools, which exposed a shocking lack of government oversight around industrial leaks in Sarnia's chemical valley.

A separate Star investigation recently revealed another concerning trend: that dozens of companies across Canada, which had been fined for violating environmental laws and regulations, had also received government grants for green initiatives far outweighing any consequences they faced for breaking the rules.

In other cases, the ministry may grant exemptions to companies who say they can't meet the standards in place, Scott said.

"What is the point of having a health based air quality threshold if we don't care whether we meet it or not?" she questioned. "The very least thing we can do is uniformly apply an air quality threshold across the province."