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Citizens against tire-burning plan fight for toxicologist testimony

A group of citizens opposed to Lafarge Canada's plan to burn tires for fuel is arguing in court the environment minister didn't consider all the scientific evidence when he approved the project.

But lawyers for Lafarge and the Department of Environment argued that to admit new evidence to the court at this stage would "distort the legislative process," taking a public policy decision away from the minister and handing it to the court.

The Supreme Court of Nova Scotia has granted the citizens' request for judicial review of Environment Minister Iain Rankin's decision to allow a pilot project by Lafarge to burn tires for fuel at its Brookfield cement plant. The review will take place in March 2018.

Brookfield residents Lydia Sorflaten and Fred Blois are leaders of the group that opposes Lafarge's plan, and they hired Douglas Hallett, an Ontario expert in toxicology.

Hallett filed an affidavit saying he reviewed the environmental assessment and believes whole tires would be burned at 700 C, but the assessment's analysis was based on shredded tires burning at a higher temperature. Hallett said the assessment didn't examine factors such as groundwater contamination and the emission of carcinogens.

Hallett proposed to write his own report, if the court permits.

William Mahody, the lawyer for the residents, said there were gaps in the evidence the Environment Department used to make its decision, and only an expert like Hallett could guide the court in evaluating the missing evidence.

Mahody argued the minister's decision was "unreasonable" and based on "inadequate" information.

However, Justice Department lawyer Sean Foreman said while Hallett is a toxicology expert, his statements are "delving into areas of engineering that frankly he's not qualified to offer an opinion on."

Lafarge lawyer John Keith said Hallett had provided no evidence for his views, and questioned why the information was not put forward during the public consultation process. The citizens group did take part in the consultations but didn't submit anything written.

Keith suggested expert opinions may differ and that it's inappropriate to ask the court to weigh them against each other.

"That does not get him the right to insert his opinions — and they are opinions — in the record," Keith said.

Sorflaten said outside court she believes that even if Hallett is not allowed to testify, the Environment Department should examine his concerns.

"I feel that what the Department of Environment did was they relied on engineers and they didn't look to the environmental people to how it will affect water and health," she said.

Mahody noted it is "rare and exceptional" for a court to admit expert testimony into the judicial review process.

Justice Denise Boudreau reserved her decision but promised to deliver it in writing ahead of the March judicial review.