Legal action commenced against incinerator

Late Friday afternoon, DurhamCLEAR launched a legal challenge to the proposed incinerator in Clarington.

The particular challenge is based on the zoning of the property. The respondents are the Region of Durham, Covanta, and Clarington.

(You can open and download our press release here. It contains essentially the same information as in this story.)

The Notice of Application was issued in Oshawa - court file number 73935/11. Click here for the full text

Copies were sent to the three respondents.

A hearing date has been set for Friday, August 12, 2011, at 9:30am in Oshawa.

Basically, we want the Region to obey its own laws and those of Clarington. And since they are proceeding with this without the proper zoning on the property, we are asking the court to restrain them until they bring themselves into compliance through the site-specific rezong that is required in Clarington Official Plan.

The current zoning of the property (Zoning By-Law 84-63 - section 23A - D) specifically "excludes a recycling facility, material sorting or dismantling, a waste management or processing facility, or a waste incineration facility".

The Region is well aware that a rezoning application would open a huge can of worms and so they have tried to circumvent this with a bipartite Host Commuity Agreement with the Municipality of Clarington, in which they agreed that the facility would be regarded as a "public use" which would exempt the facility.

Just because two parties agree to something does not make it so.

In its application DurhamCLEAR is disputing that the incinerator, which is being designed, built and operated by a private corporation, Covanta, can be regarded as a public use as defined in the Planning Act, and is challenging the Host Community Agreement itself as "an illegal restraint on, and divestiture of, the legislative powers and decision making authority of the council of the Municipality of Clarington."

DurhamCLEAR is being represented by strong team of environmental lawyers. The lead counsel is Eric Gillespie who has recently completed a long but successful class action lawsuit against International Nickel Co in Port Colborne in which residents of the community were awarded $36 Million for the nickel contamination of their properties. (Nickel oxide is a carcinogen.) This action which commenced in 2001 was the first case in Ontario involving long-term environmental contamination to be certified as a class action.

Gillespie is being assisted by Travis Allan, a prominent environmental lawyer who will be speaking at the Inter-American Development Bank in Washington D.C. on Monday July 25 on Climate Finance. Allan will be discussing voluntary carbon finance with a focus on international development in the Americas.