By Chad Ingram and Jenn Watt
Published on Sept. 5 2017

Parties to the Ontario Municipal Board hearing regarding whether to permit a biochar facility on Kennaway Road agreed on a settlement in the evening hours of Tuesday Aug. 29.

On Wednesday Aug. 30 the second day of a scheduled three-day OMB hearing at Dysart et al council chambers Leo Longo counsel for Haliburton Forest said the parties had come to an agreement.

“I’m pleased to report that my client and Mr. [Peter] Pickfield’s client have reached a settlement in this matter that involves a couple of amendments to the bylaws before the board” Longo told OMB member Mary-Anne Sills.

He asked planner Wayne Simpson to speak to the agreed upon amendments to the bylaw. The changes involve narrowing the scope of what Haliburton Forest Biochar can do on the property which is near Highway 118 east of Haliburton. The bylaw now states that “uses shall be limited to a manufacturing and/or processing plant involving wood wood products wood byproducts and related finishing or processing materials only but not including a raw wood and planing mill pulp and paper mill outdoor application of paints lumber storage yard or a retail lumber and buildings supply establishment.”

“The purpose of that is to focus on the manufacturing and processing uses to [the] resource industry that’s very specific to the nature of the Haliburton economy” said Simpson.

The other change is to setbacks of all buildings from the edges of the property providing additional space. Sills called the settlement a pleasant surprise and thanked the parties for coming to an agreement.

Appellants in the hearing included Catharine Gonnsen Laurie Wheeler Larry Lowenstein and Douglas

Buchanan. Their concerns included that the facility presented a noxious use was a waste processing plant and that the bylaw was not consistent with the provincial policy and did not conform to local municipal official plans.

Gonnsen said she would make the best of what the settlement offered and that she was concerned about future development on lands in and around the Kennaway Road area unrelated to Haliburton Forest.

She and Martin Rist who was observing the hearing on Wednesday said that finding information on Haliburton Forest Biochar’s plans was difficult.

“We had to put in an application to the Ministry of the Environment under freedom of information” Gonnsen said. New information only came forward through witness statements “at the 11th

hour” she noted.

“It was difficult as a lay[person] … to get full information” Rist said.

Haliburton Forest Biochar still needs to attain approval from the Ministry of Environment and Climate Change addressing air and noise at the facility.

“We still need full operating permits from the [ministry] and can’t proceed without those full approvals anyway” said Haliburton Forest Biochar director Malcolm Cockwell in an interview with the Echo following the settlement.

The Forest intends to use wood sawdust to make biochar which is created using high temperatures. The process captures carbon delaying its release into the atmosphere. The product can be used as a soil amendment however Cockwell said his company is intending to sell it for use in industrial manufacturing.

“Our product’s being used in industrial manufacturing to displace a fossil fuel product called carbon black” he said. “Pound for pound we are displacing a fossil fuel product in the Canadian manufacturing sector.”

Assuming Haliburton Forest Biochar receives the necessary permissions to operate they will initially be employing four people. Cockwell said at full capacity the facility will employ 20 people locally.

The initiative has received substantial support from several funding bodies including a $1 million grant from the Centre for Research and Innovation in the Bio-Economy and $100000 through Haliburton County Development Corporation’s collaborative economic development program he said.

Sills heard a day of witness statements in Dysart et al council chambers on Tuesday Aug. 29. In his opening remarks Peter Pickfield legal counsel for the appellants said his clients had concerns around the township’s planning process.

“One of the concerns was that there didn’t appear to be any technical supporting studies with the exception of one study that was done to deal with natural features on the site” Pickfield said.

Sills made it clear she was not interested in revisiting the municipality’s process or the decision of council to approve the rezoning.

“The history of how we got here today the process in terms of the municipality whether they did or did not complete studies that it’s felt were necessary we don’t need to go into much detail of that” Sills said. “What I need to hear is specific evidence.”

“I’m going to make a decision based on the evidence that comes before me today” she continued. “I’m not going to go behind council and the decisions of council in terms of whether they made that decision appropriately or they didn’t because that decision is moot at this point.”

In his opening remarks Longo representing Haliburton Forest stressed that his client could legally build the proposed facility on the portion of the property already under industrial zoning. Longo cited the history of industrial use on the northern portion of the property including the operation of a sawmill for more than 30 years a facility which then acted as a wood pellet processing plant from 2010 to 2015.

Longo said his client was not seeking to “establish” industrial zoning on the southern portion of the property.

“That’s an incorrect characterization” he said. “It’s to maintain the industrial zoning extend it to the south .. . but it’s not just extending the use to the south it’s also putting two significant additional controls.”

Longo said that while industrial zoning allows for some 30 uses under Dysart et al’s bylaw “this new bylaw scales that down to two and simply will allow manufacturing and processing.”

In addition he said a cap would be put on the size of the facility.

“It’s also an area of site plan control” he said explaining that a site plan agreement between the municipality and Haliburton Forest dealing with buffers lighting etc. would be finalized following the decision of the board.

Longo also pointed out that Haliburton Forest has applied for an Environmental Compliance Approval (ECA) with the Ministry of Environment and Climate Change an approval it requires for the operation of the biochar facility.

“The board appreciates that’s a discrete process” he said adding the application for the certificate had been publicly posted and that Haliburton Forest had noise and air quality studies completed as part of that application.

Longo noted that the appellants had also taken issue with the project directly with the ministry.

“These appellants have taken advantage of that posting and made submissions to the minister on noise and air” he said. “The commenting period is over and we’re awaiting the MOECC decision.”

Longo suggested that nowhere in the evidence the board would hear was there any indication the facility could not operate within MOECC guidelines.

“The term that I like using is there’s no irreconcilable incompatibilities” he said.

Longo stressed the facility would not be able to operate if it was not in compliance with ministry standards.

“Our client cannot operate without an ECA” he said. “Full stop period. And once the ECA has been granted . . . that’s not the end of the MOE’s involvement.

There’s ongoing monitoring of the initial phase further reports get filed with the MOECC and most importantly a third party independent acoustical audit will have to be submitted to the ministry. All

these protections are there to protect the public interest.”

Sills heard from John Emeljanow an acoustical engineer with Valcoustics Canada Ltd who conducted a review of the noise study the Haliburton Forest had done as part of its application to the ministry.

Emeljanow said the noise report failed to properly establish points of noise reception and did not take into account vacant lots near the proposed facility that may one day contain homes. Provincial

guidelines require the identification of such vacant lands that may potentially house sensitive uses in the future he said and added that were homes put on some of these properties the noise level

from the operation would in his opinion exceed provincial guidelines.

Noise from the property would include that from equipment such as fans and dust collectors but the biggest source of noise would be trucks coming and going from the site.

While the noise study used decibel levels of heavy trucks passing by between 50 and 100 km/h Emeljanow said the study should have used decibel levels from trucks moving slowly as they would be

on the property.

He said heavy trucks are the noisiest when they are travelling at about 10 km/h.

“Potential noise impacts haven’t been properly assessed” Emeljanow said. Sills stressed that the MOECC would make a ruling on the noise study in its decision on whether to grant the ECA and the OMB really had no jurisdiction on the matter.

“This is exactly the kind of misleading that I didn’t want going out to the public” she said.

Sills added that if there were noise complaints regarding the facility they would be dealt with by the MOECC which has the power to revoke operating licences.

The appellants also acquired the services of planning consultant Allan Ramsay who conducted a planning review. Along with the potential to create unacceptable noise odour and air quality Ramsay who spoke at length argued that industrial uses in the area are not compliant with Dysart et al’s official plan or the Provincial Policy Statement the provincial government’s policies on planning which apply throughout Ontario.

Ramsay indicated that the majority of the subject lands are designated “rural area” in the Dysart et al official plan.

“In my opinion the proposed rezoning of the subject lands from a ‘MX’ (extractive industrial) zone to an ‘M-8’ (industrial) zone does not conform to the policies of the rural area land use designation” his witness statement read. “The ‘M-8’ (industrial) zone if approved would allow a ‘manufacturing plant’ and a ‘processing plant’ as permitted uses.

These defined uses are not listed as permitted use of the rural areas land use designation. The local OP also includes an ‘industrial areas’ land use designation.

This designation is found at several locations throughout the municipality including lands within the Haliburton Village area. The ‘industrial areas’ designation does not apply to the subject lands.”

With regard to the Provincial Policy Statement Ramsay argued an industrial use is not compatible with the surrounding area which includes some residences and would not be in keeping with provisions around rural lands.

“In summary it is my opinion that the proposed zoning amendment to allow manufacturing and processing plant uses on the subject lands is not consistent with the PPS particularly those provisions dealing with land use compatibility and rural lands” his witness statement read.

Ramsay referring to a map also said he believed the existing building actually straddled the zoning line and was located partly in the portion of the property with industrial zoning and partly in the portion with extractive industrial zoning.

Following the settlement Cockwell said he wanted to move forward with getting the facility up and running.

“As a company Haliburton Forest Biochar we’re very happy to put this behind us … we’re focused on building an excellent project that’s going to create green year-round jobs in this community that’s

going to allow us to find higher and better uses for sustainably harvested wood fibre” he said.

“This OMB thing is behind us but we remain committed to communicating with everybody and that includes the appellants themselves. We’re confidence we’re doing a good thing here for our company Haliburton County and one day I hope we can say we’ve done a good thing for the broader Canadian manufacturing sector.”