The primary legislative…

The primary legislative authorities for this comment are Sections 9(1), 14(1), and 179(1) of the Environmental Protection Act, RSO, 1990.

9 (1) No person shall, except under and in accordance with an environmental compliance approval,
(a) use, operate, construct, alter, extend, or replace any plant, structure, equipment, apparatus, mechanism, or thing that may discharge or from which may be discharged a contaminant into any part of the natural environment other than water; or

14 (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect.

179 (1) Where a conflict appears between any provision of this Act or the regulations and any other Act or regulation in a matter related to the natural environment or a matter specifically dealt with in this Act or the regulations, the provision of this Act or the regulations shall prevail.

Mixed commercial and residential use, in particular, high traffic/human activity assoicated with a cafe/restaurant, poses land use compatibility issues that are not fully addressed in this proposal. The mixed use, as proposed, would cause or permit the discharge of contaminants, in particular fugitive sound contaminant discharges resulting directly or indirectly from human activities. The resulting fugitive emissions may cause an adverse effect. A buffer area between the influence area/potential influence area of the sensitive land uses and the commercial operation would not be possible. Residences or facilities where people sleep are considered to be sensitive 24 hours/day.

This proposal must be denied as the commercial operation of a cafe/restaurant would discharge contaminants or cause or permit the discharge of contaminants, in particular sound, into the natural environment, which may cause an adverse effect. ECA conditions that could permit such a commercial operation in such proximity to sensitive land uses would be too onerous. Compliance would be impossible. It should be noted that the theoretical possibility of a contaminant discharge without an environmental compliance approval is a prima facie violation of the Environmental Protection Act (EPA).

For this proposal to be properly considered, a properly qualified expert noise report based on the predictable worst-case scenario of the cafe/restaurant needs to be submitted to the MECP for review. The fact that a noise study was reviewed by Regional Staff and appropriate mitigation measures have been proposed to ensure adverse noise impacts are reduced or removed is irrelevant and unlawful. Neither the noise report nor the proposed mitigation measures are disclosed. When a contaminant is discharged, the discharger may not know the full extent of the damage caused or likely to be caused. The EPA places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the municipality or the discharger.