Environmental Review Tribunal
Tribunal de l’environnement
ISSUE DATE: July 29, 2016
CASE NO.: 16-064
PROCEEDING COMMENCED UNDER section 140(1) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended
Appellant: Robert Anderson
Respondent: Director, Ministry of the Environment and Climate Change
Subject of appeal: Order to clean up and remove asbestos waste material
Reference No.: 8435-A9PLUN-1
Property Address/Description: 3632 Highway 15
Municipality: City of Kingston
Upper Tier: County of Frontenac
ERT Case No.: 16-064
ERT Case Name: Anderson v. Ontario (Environment and Climate Change)
Heard: June 27, 2016 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
Director, Ministry of the Environment and Climate Change
Paul McCulloch
Robert Gary Anderson
Self-represented
ORDER DELIVERED BY HEATHER GIBBS AND LAURIE BRUCE
REASONS
Background
1On June 1, 2016, Brian Kaye, Director of the Kingston Office, Ministry of the Environment and Climate Change (“MOECC”) issued Director’s Order No. 8435-A9PLUN-1 (“Director’s Order”) to Robert Gary Anderson.
2Mr. Anderson appealed the Director’s Order to the Environmental Review Tribunal (“Tribunal”) on June 6, 2016, and requested a stay of the work items.
3The Director’s Order relates to material, alleged to be asbestos waste, that has been deposited on property owned by Mr. Anderson, located at 3632 Highway 15 in the City of Kingston (the “Site”) .
4The Tribunal scheduled a teleconference call (“TCC”) on June 27, 2016 with Mr. Anderson and the Director to address the request for a stay.
Issue
5The issue is whether the Director’s Order should be stayed, specifically, whether the Tribunal is prevented from issuing a stay by s. 143(3) of the Environmental Protection Act (“EPA”).
Relevant Legislation
Tribunal may grant stay
143(2) The Tribunal may, on the application of a party to a proceeding before it, stay the operation of a decision or order, other than,
(a) an order to monitor, record and report; or
(b) an order issued under section 168.8, 168.14 or 168.20.
When stay may not be granted
143(3) The Tribunal shall not stay the operation of a decision or order if doing so would result in,
(a) danger to the health or safety of any person;
(b) impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it; or
(c) injury or damage or serious risk of injury or damage to any property or to any plant or animal life.
Discussion, Analysis and Findings
7There is no disagreement that the material has been in this location for several years, that it has been covered by a tarpaulin in the past to prevent exposure to the elements, and that it was not covered at the time of the Director’s Order.
8Mr. Anderson confirmed that he tarped the material, at his own expense, in order to comply with the Director’s request.
9During the TCC on June 27, 2016, Paul McCulloch, counsel for the Director, confirmed that Provincial Officer Chris Raffael, inspected the property owned by Mr. Anderson. The Tribunal was provided with evidence that on June 22, 2016, Mr. Raffael observed that the suspected asbestos materials located at the Site had been acceptably covered. On the basis of the Provincial Officer’s observations, Mr. McCulloch confirmed that the Director is satisfied that there is no current risk to health or safety.
10During the TCC, the Director consented to a stay of the Director’s Order, pending the prehearing conference in this appeal, on condition that the material in question continues to be safely tarped to the Director’s satisfaction.
11Based on the evidence that the Provincial Officer finds that the suspected asbestos material has been acceptably covered, the Tribunal finds that, as long as the material remains acceptably covered, a stay of the Director’s Order will not result in danger to the health or safety of any person, or otherwise contravene s. 143(3) of the EPA. The Tribunal therefore finds that it is not prevented from ordering a stay as requested.
12The parties both consent to a stay pending a prehearing conference in this appeal. Given the consent, a detailed examination of the additional elements in the Tribunal’s Rule 110 relating to stays is not required.
ORDER
13Director’s Order No. 8435-A9PLUN-1 is stayed pending a prehearing conference in this appeal, on condition that the material that is the subject of the Director’s Order remain tarped to the Director’s satisfaction.
Stay Granted
“Heather Gibbs”
HEATHER GIBBS
VICE-CHAIR
“Laurie Bruce”
LAURIE BRUCE
member
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248